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14 August 2019
In recent years, arbitral case law has been marked by several decisions that have dealt with allegations of discrimination in contexts of granting or maintaining working conditions with a monetary impact following an extended absence from work. A recent decision reminds employers that distinctions between different classes of protected employees may also be discriminatory.
In Cégep de Trois-Rivières,(1) the arbitrator concluded that the employer's decision to reduce the holiday entitlements of an employee who had been absent due to a disability amounted to discrimination prohibited under the Quebec Charter of Human Rights and Freedoms because the employee had not been treated the same as other employees on statutory-protected leave.
The collective agreement provided that unpaid absences of more than 60 business days in one year would lead to a reduction in the employee's holiday leave entitlements. The employee in question was on disability leave for 77 business days in one year, while receiving wage loss replacement benefits. The employer reduced the employee's paid holiday entitlements by six-and-a-half days.
The union grieved. It argued that the collective agreement rules on the reduction of holiday time did not apply and that wage loss replacement benefits should be considered 'pay' for the computation of holiday entitlements. The union also argued that reducing the employee's holiday entitlements while on disability leave had been discriminatory.
The arbitrator found that wage-loss replacement benefits were not 'pay' under the collective agreement. Therefore, the collective agreement appeared to entitle the employer to reduce the employee's holiday entitlements .
The employer did not dispute that the employee's reason for taking disability leave was a 'handicap' under the charter; instead, it argued that the provisions relating to the computation of holiday entitlements were not on their face discriminatory. The arbitrator found that the collective agreement created a distinction based on disability between employees who had been absent from work without pay and those who had received compensation or benefits equal to a certain percentage of their pay during their absence. Employees who were on disability leave for more than 60 business days during a given year were subject to a reduction of the length of their annual holiday leave. However, employees on maternity leave were not similarly penalised. The arbitrator concluded that the collective agreement had been discriminatory on the prohibited ground of 'handicap'.
In other words, even if the employer had correctly applied the contractual provisions with respect to the length of holiday leave, the application had been discriminatory against employees who were absent due to a disability. As the employer did not claim undue hardship, the arbitrator ordered that the employer should grant the employee full holiday pay entitlements.
This decision is part of the multiplicity of recent decisions where arbitrators have held that providing less than advantageous working conditions to employees because of a disability is discriminatory. That said, certain distinctions can be drawn from this case.
The arbitrator in this case acknowledged that a provision which aimed to reduce holiday pay for an employee who had been absent without pay during a holiday reference year was not discriminatory at first glance. Rather, the arbitrator found that there was differential treatment between protected classes of employees (ie, employees on disability and maternity leave) as opposed to between employees that were actively or not actively at work during the year. If the collective agreement had provided for identical entitlement for employees who were on leave, irrespective of the reason for the leave (disability or maternity), the union's allegation of discrimination should have been rejected.
Employers should review their policies and agreements in light of this decision to ensure that differential treatment is not applied to employees in different protected classes on leave, as this may provide a basis for successful discrimination claims.
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