Board Does Not Have to Compensate Teachers for Work that is not Performed

March 2012 | Gillian Tuck Kutarna

In a matter between the Ontario Secondary School Teacher’s Federation (OSSTF) and Peel District School Board (the ‘Board’), Arbitrator Laura Trachuk was asked to consider the case of a full time teacher who for several years requested and was given part time hours as a result of a disability. OSSTF alleged that the Board had violated their collective agreement and the Ontario Human Rights Code (the ‘Code’) by failing to give this teacher a full year’s credit for sick leave, experience on the salary grid, and fully paid benefits, for each of the years that she taught part-time.

Throughout the relevant period, the teacher’s position was a 1.0 Full Time Equivalent (FTE), that is, her employment status was full time, although due to the accommodation of her disability she actually worked 50% of the time.  The Board therefore credited her with accumulating half the number of sick days, half a year’s credit on the experience grid, and paid only 50% of her benefit premiums for each of her half time years.

Arbitrator Trachuk held that the language of this collective agreement was unambiguous in its definition of part time, and its treatment of part time workers.  Advancement on the step grid, salary, sick leave credits, and any other entitlements are to be pro-rated, “according to the actual time worked”.  This case was distinguished from a previous decision involving the Upper Grand District School Board, wherein the teacher’s status was determinative.  In each case the decision turned on the precise definitions in the respective collective agreements.

Arbitrator Trachuk also examined OSSTF’s argument that the Board had violated the Code, in that “but for the grievor’s disability” she would have been able to work full time, and therefore would have received full experience and sick leave credits and full payment of premium benefits.  The Arbitrator relied on Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital in which the court found that since all employees working on a part time schedule were treated the same way, the employer was not discriminating against any particular part time employee on the basis of their disability.

In response to the argument that there had been constructive discrimination under s.11 of the Code, the court held that “requiring work in exchange for compensation is a reasonable and bona fide requirement”.

At the Peel Board, teachers who were receiving part-time sick leave benefits for the hours they could not work were given full credits and benefits, but those who were absent and receiving LTD benefits for the hours not worked had their entitlements pro-rated.  OSSTF therefore argued that this discriminated against employees like the grievor who were on LTD.   The Arbitrator found that this was not two categories of teachers being treated differently, but rather one category of teachers with some at different points on the benefits continuum than others, as all teachers are required to use up sick leave benefits before becoming eligible for LTD.

Thus, the decision concludes with an observation that “the grievor could not work a full teaching load because of her disability and that is deeply unfair.  But it is not an unfairness for which the Code requires the Board to bear the cost.” While the Code requires that the Board accommodate the teachers’ disability, it “does not have to compensate teachers for work that is not performed.”

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