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Issue link: https://digital.hrreporter.com/i/1253211
Progressive discipline not necessarily appropriate: Arbitrator
Policy applied to all absences lasting longer than 30 days
benefits under any provisions of
the collective agreement or else-
where, shall be suspended for the
period of absences in excess of
30 continuous calendar days, the
benefits concerned appropriately
reduced on a pro rata basis and
the employee's anniversary date
adjusted accordingly."
Seniority accrual would also be
paused for the absence, except if
the absence "is due to a disability
resulting in [workers' compensa-
tion] benefits or [long-term dis-
ability] (LTD) benefits or while an
employee is on sick leave."
Tracy Hickman was a clerical
associate at the Etobicoke Gen-
eral Hospital, one of the William
Osler facilities. She went off work
for medical reasons on Aug. 14,
2017.
Hickman received short-term
disability (STD) benefits fol-
lowed by employment insurance
benefits. When these lapsed on
March 12, 2018, she went on LTD
paid for by a third-party insurer,
receiving no pay from the health
service until she returned to work
on Nov. 5.
Hickman's total absence was
341 days, so she didn't accrue
credit for service for the 312 days
that were beyond the 30-day ab-
sence limit. The hospital prorated
her vacation entitlement and ad-
justed her service anniversary
date, though her seniority date
remained in March 2000.
The union grieved the adjust-
ment of Hickman's vacation
entitlement and service date,
arguing this practice created a
disadvantage for workers who
were off work due to illness and
therefore discriminated on the
basis of disability — contrary to
the collective agreement and the
Ontario Human Rights Code. It
pointed out that the Effect of Ab-
sence clause didn't pause senior-
ity accrual for workers on sick
leave and vacation entitlements
weren't prorated for workers on
compassionate leave, STD, preg-
nancy/parental leave, jury duty
or bereavement leave. These
distinctions were "arbitrary as
they differentiate individuals on
extended disability leaves from
individuals on other leaves for no
apparent reason," said the union.
The union also said that the
collective agreement's vacation
clause tied entitlement to "con-
tinuous service" and not perfor-
mance of work or active service.
The arbitrator noted that ben-
efits tied to seniority and service
accrual served different purpos-
es — the former were related to
layoffs and promotions and "not
necessarily compensatory in na-
ture," while the latter was tied to
monetary benefits.
The arbitrator found that
the Effect of Absence provision
didn't "specifically target em-
ployees off work due to disabil-
ity but is of a general application
to any unpaid leave that exceeds
30 days" and the prorating of
benefits and service accrual
pause only began after 30 days
— the same applied to employ-
ees on other paid leaves.
In addition, it was apparent that
both parties intended to treat se-
niority rights differently from ser-
vice accrual, said the arbitrator.
The arbitrator pointed out that
the collective agreement allowed
employees off work due to illness
to accrue vacation during the 15
weeks of STD plus another 30
days after they lapsed. This was
"much longer" than other paid
leaves in the collective agree-
ment.
The arbitrator also found that
the difference in how employees
on pregnancy and parental leave
were treated was due to employ-
ment standards legislation, which
require employers to continue
both seniority and service accrual
for a specific time.
"It is difficult to conclude that
a provision which is designed to
meet a statutory minimum re-
quirement is arbitrary in nature,"
said the arbitrator.
The arbitrator determined that
the practice on extended leaves
was not discriminatory against
employees with disabilities. The
grievance was dismissed.
Reference: William Osler Health System and TC, Local 419. Colin Johnston — arbitrator. Thomas Agnew for
employer. Kamal Bakhazi for employee. April 8, 2020. 2020 CarswellOnt 6568