A unanimous decision of the Ontario Court of Appeal released January 12,
1999 in the case of Ontario Nurses’ Association and Orillia Soldiers
Memorial Hospital, deals with the seniority accrual (for purposes of
layoff, bumping and recall), service accrual (for purposes of vacation and
wage grids) and employer contributions to benefit plans for disabled persons
who are on unpaid leave of absence due to being on WCB, LTD, or disability
related employment insurance.
The collective agreement in question discontinued seniority, service
accrual, and employer contributions at different times during a person’s
absence depending on whether they were receiving Workers’ Compensation or
LTD or EI.
The Court of Appeal was asked to consider whether the Human Rights Code
overrode the collective agreement. The Court held that all entitlements tied
to compensation, (i.e. wages, vacation, premium payments, etc.), can be cut
off in accordance with the terms of the collective agreement. But, all
entitlements linked only to employee status, (i.e. seniority based
entitlements like the right to recall, layoff, etc.) have to be extended to
disabled employees on the same basis as able bodied employees. .
In a nutshell, the Court's ruling is that the "appropriate
accomodation (for disabled employees) is to exempt employees covered by this
collective agreement from the provisions curtailing the accumulation of
seniority, throughout the period that the (person) remains an employee and
falls within the Code definition of handicap".
The Court of Appeal’s rationale is that for compensation issues, all
employees within any group of absent employees, whether handicapped or
non-handicapped, are treated the same and thus there is no discrimination.
However, seniority entitlements are different. "Seniority directly
affects the ability of employees to access, remain in and thrive in the
workplace. It is therefore a right that is at the core of human rights
legislation as it affects the disabled." "The right to accrue
seniority is also at the core of the disabled employee’s ability to
integrate into the workforce." "By depriving employees of
seniority accrual for the periods when they were unable to work, disabled
employees are put at an unfair disadvantage, by reason of their
handicap." "Seniority is of consequence under this agreement when
the disabled employees have returned, or seek to return, to active service
and are in competition with other employees on active service."
The Court of Appeal also phrases its distinction as follows, "while
they are disabled, these handicapped employees cannot provide their labour,
which is an essential requirement for receiving compensation".
Discriminatory provisions affecting compensation do not infringe the Code
because the person is incapable of performing the essential duties of the
job and cannot be accommodated. In contrast, discriminatory seniority
provisions do infringe the Code because "those provisions do not depend
upon the employee providing labour, but are triggered simply by the status
of being an employee".
It can be expected that this decision will be the subject of a motion for
leave to appeal to the Supreme Court of Canada. I will keep you posted on
In the meantime, some practical suggestions:
1) Since the current state of the law is that employees absent from work
due to disability do not have an entitlement to compensation related
entitlements beyond what the collective agreement provides, there is no need
to file grievances on the denial of such entitlements.
2) Since denial of seniority is a violation of the Human Rights Code,
grievances should be filed wherever a collective agreement prevents a
disabled employee absent from work from continuing to accrue seniority.
These grievances should be filed even if there is a collective agreement
cap. Employers should be advised that such a cap violates the Code.
3) In negotiations, the union should demand deletion of collective
agreement provisions that stop seniority accrual for disabled employees
absent from work.