Ruling on use of sick leave by employees on maternity leave stands in Essex County case

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In a decision released on August 24, 1998, the Ontario Court of Appeal has ruled in favour of the employer in OSSTF, District 34 v. Essex County Board of Education, which we originally reported in the September 1996 issue of FOCUS. (See “Refusal of sick leave during maternity violates Ontario Human Rights Code on our Publications page.) More important, however, the Court has affirmed that sick leave policies should apply to any period of disability associated with a normal pregnancy.

Readers will recall that the issue was raised in a grievance by Carlinda D’Alimonte, an employee who wanted to use her accumulated sick leave benefits for the period of time during labour and after delivery that she would be unable to work for medical reasons. The grievance was dismissed by the majority of a board of arbitration, which held that sick leave and maternity leave were intended by the parties to be separate and exclusive types of leave. Consequently, the words “physical disability” in the collective agreement should be read to exclude disability resulting from a normal pregnancy.

This result was overturned by the Divisional Court, which held that the board had erred in failing to interpret the sick leave provisions in a manner consistent with human rights legislation, and that they should apply to any period of disability arising from a normal pregnancy. The Court referred the matter back to the board to determine the amount of benefits owing to D’Alimonte.

The Court of Appeal, noting that D’Alimonte’s physician had declined to give evidence about the length of time she would have been disabled, held that there was therefore no reason to send the matter back to the board, and dismissed her grievance. However, it expressed agreement with the Divisional Court on the larger issue of discrimination against women physically disabled from working as a result of pregnancy and giving birth.

The employer had argued that the collective agreement did not discriminate, because any woman who became sick during the period of her maternity leave could also claim sick benefits. All sick persons were treated in the same manner, male or female, pregnant or not.

The Court observed that, while the employer’s interpretation of the collective agreement made the agreement easier to administer, it was also discriminatory, because pregnancy itself involves a form of disability:

“The problem is that all ‘disabled’ persons are not treated the same by the agreement. Women giving birth normally, and who, it is acknowledged, would nonetheless be ‘physically disabled’, in the ordinary sense of those words, for some undetermined length of time, would not receive leave with pay for that period. … In that sense, I agree with [the Divisional Court] that the Board’s reading of the Agreement results in discrimination against pregnant women.”

In making this ruling, the Court urged the parties to consider ways to amend the agreement to resolve the problem posed by having to determine specific periods of disability in each case of normal pregnancy and delivery.

For further information, please contact Steven Williams at (613) 563-7660, Extension 242.