Differential Compensation for Disabled Teacher Upheld

January 28, 2013 | Dirk L. Van de Kamer

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.

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