A labour arbitrator recently found that an employer’s suspension of time accrual during periods of pregnancy or parental leave is not contrary to the Human Rights Code.
The Okanagan College Faculty Association filed a policy grievance alleging Okanagan College’s decision to deny teaching load unit (TLU) credit to term instructors during periods when they were on maternity and/or parental leave was a discriminatory practice. Under the parties’ collective agreement, the accrual of TLUs determined when a term instructor would be eligible for conversion to a continuing appointment (which at a number of institutions is known as regularization). The Association took the position that the College’s refusal to permit TLU accrual during maternity and/or parental leave was contrary to the collective agreement and Section 13 of the Human Rights Code. The College’s position was that under the parties’ collective agreement, credit for TLUs was based on the performance or completion of work, and not simply on a faculty member’s status as an employee.
Arbitrator Hall upheld the College’s position and dismissed the grievance. He found the term instructors in question were not treated adversely because of their sex or family status. Rather, the sole reason for the denial of TLU credits was that the instructors had not performed the work required for the preparation and delivery of courses. Accordingly, it was not discriminatory for the College to differentiate between employees in relation to this service-driven element of the employment relationship. He found that the Association had failed to establish a prima facie case of discrimination.
The arbitrator went on to find that even if the Association had established a prima facie case of discrimination, the College would not have been able to accommodate the employees’ protected characteristics without suffering undue hardship. He concluded that the College would have suffered undue hardship if it had been required to grant conversion to the faculty members without them having performed the work required for the completion of the requisite number of TLUs to qualify for conversion.
Arbitrator Hall’s award makes it clear that where a collective agreement requires a non-regular faculty member to complete a specified amount of work before the faculty member will be eligible for conversion to a regular appointment, it is not discriminatory for the employer to suspend the accrual of such work during periods when the faculty member is on pregnancy or parental leave.