In OPSEU (Dupuis) and Ministry of Northern Development and Mines,
GSB File 0409/00, decision dated February 14, 2001, Vice Chair
Dissanayake dealt with STSP entitlements under the OPSEU/MBS
collective agreement, Articles 44 and 71.
This was an individual grievance dealing with the denial of Short
Term Sickness Plan benefits to a FT employee who had utilized all of
her STSP credits and returned to work on a reduced work week as a
result of a disability. The requirement for the grievor to work only
three days a week had been ongoing but not yet established to be a
permanent accommodation, hence the employee retained her FT status
with respect to other benefits, etc.
However, the employer refused to re-instate her STSP credits
because she had not worked "twenty consecutive days" as per
Article 44. The employer further would not apply Article 71 to the
grievor in the result that as long as she was being accommodated in
her work schedule, she would never be eligible for any STSP
whatsoever. The union argued that the employer’s refusal to
re-instate STSP on a pro-rated basis proportionate to the amount of
worked performed due to her disability was a violation of the Human
Rights Code.
OPSEU Grievance Officer Allison Kabayama-Hun successfully argued
that: "…even if the employer had acted in compliance with the
collective agreement, by doing so the employer had contravened the Ontario
Human Rights Code by discriminating against the grievor because of
her handicap."
The Board held that "…in the grievor’s particular
circumstances, the appropriate comparator for the grievor is not the
group of full-time employees. The employer’s reliance on the fact
that the grievor occupied a full-time position under the collective
agreement is misplaced. Compliance with the strict terms of a
collective agreement is not always an answer to an allegation that the
Ontario Human Rights Code has not been complied with. Sometimes, the
application of the strict terms of the collective agreement must be
altered to comply with the Code provided it can be done without undue
hardship."
Board held that "in determining the appropriate group for
comparison, the grievor’s de facto status must govern. Since she
regularly worked on part-time hours under an arrangement with the
employer, the appropriate group for comparison purposes is the group
of regular part-time employees…"
Board held that "the employer had an obligation under the Code
to treat the grievor under Article 71 in the same manner as the
employer’s other employees who performed part-time work."
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