A school district had a longstanding practice of granting certain leaves of absence in half-day increments. For example, it had been allowing teachers to take a day of discretionary leave (and a number of other leaves) in either two half-days or one full day. Estoppel notice was served to end the practice and revert to what the district said was the strict language of the collective agreement – granting leaves in full day increments. The district’s rationale was that it was more difficult to fill absences and so it was not prepared to create more absences than necessary under the terms of the collective agreement.
The Union grieved and claimed that the collective agreement allowed teachers the right to take leaves of absence in half-day increments. It argued that the longstanding past practice was evidence of the party’s intention that teachers could take leaves in half-day increments if they wished. It further argued that the district’s new practice discriminated against teachers on the basis of sex and family status because many teachers were women.
The Arbitrator reviewed the language of the collective agreement and agreed with the school district that while the collective agreement provided leaves that were a certain number of “days”, there was no reason to find that this meant those leaves could be taken in half-day increments. The Arbitrator found that the language was clear and unambiguous and accepted the district’s argument that the word “day” means a full day on which the employee was scheduled to work. The Arbitrator noted that the collective agreement specifically stated that sick days could be taken in partial day increments and had the parties intended this to apply to other leaves, they could have so stated. The Arbitrator also found that since some of the leaves in question were also provided in the Employment Standards Act (“ESA”), it was appropriate to take notice of the Ministry-issued Guide to the interpretation of the ESA which clearly states that leaves under the ESA can only be taken in full-day increments.
The Arbitrator also rejected the Union’s argument that the employer’s position discriminated against teachers on the basis of sex and family status simply because many teachers were women. The Arbitrator found that while the employer’s new practice had an adverse effect at least one some teachers who were women (as set out in the agreed statement of acts), she did not agree with the Union that the negative impacts of the employer’s position were connected to their status as females. She noted that all teachers, whether male or female, parents or without children will experience the same negative impact. It was not sufficient to show that women made up a greater proportion of the teaching population. With respect to family status, the Arbitrator rejected the Union’s argument that the district’s position interfered with a substantial parental obligation. Rather, she found that the evidence from the teachers stating that they preferred half day increments because it best suited them or their family’s needs were more akin to the usual work and family tensions associated with being a parent.
This case will be helpful for districts defending a practice of only allowing leaves to be taken in full-day increments.
For more information, please contact your Harris lawyer.
