An Ontario arbitrator has ruled that a full time teacher who, as a result of being accommodated for her disability worked a half time schedule for a number of school years, was not entitled to a full year’s teaching experience credit, sick leave credits or full benefits premium payment while working half time.
For a number of years, the teacher, who suffers from MS, taught one half of a full time teaching schedule, supplementing her income with either sick leave or STD/LTD. After a number of years, she noticed her placement on the grid was not what she’d thought it ought to be (while she’d received full credit for the year in which she used sick leave credits for the days she did not work, she did not for those years in which she was paid STD/LTD for non working days). She contacted her Union and a grievance was filed alleging discrimination both under the collective agreement and pursuant to the Ontario Human Rights Code (the “Code”).
In finding no violation of the collective agreement, the arbitrator ruled that the collective agreement specifically contemplated the recognition of experience on a pro rata basis according to actual time worked. In effect, the arbitrator ruled that the employee had become a part time employee as a result of her accommodated work schedule. As such, the collective agreement provided for prorated teaching experience credits, sick leave credits and benefits premiums.
As to the alleged violation of the Code, the arbitrator relied on the Ontario Court of Appeal judgment in Orillia Soldiers Memorial Hospital, in which the Court ruled that making adjustments on a salary grid for employees who cannot work due to disability does not violate the Code, so long as they are treated the same as other employees who, for whatever reason, cannot or are not working. The Union’s argument that the Code had been violated because “but for” her disability, the Grievor would have worked a full time schedule, was rejected. While recognizing the Grievor’s hardship, the arbitrator ruled that the Code does not require employers to compensate employees for work that is not performed.