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Suspension of Time Accrual During Periods of Pregnancy or Parental Leave Not Discriminatory
November 14, 2012

A labourarbitrator recently found that an employer’s suspension of time accrual duringperiods of pregnancy or parental leaveis not contrary to the Human Rights Code.

The OkanaganCollege Faculty Association filed a policy grievance alleging OkanaganCollege’s decision to deny teaching load unit (TLU) credit to term instructorsduring periods when they were on maternity and/or parental leave was a discriminatorypractice. Under the parties’ collective agreement, the accrual of TLUsdetermined when a term instructor would be eligible for conversion to acontinuing appointment (which at a number of institutions is known asregularization). The Association tookthe position that the College’s refusal to permit TLU accrual during maternityand/or parental leave was contrary to the collective agreement and Section 13of the Human Rights Code. The College’s position was that under the parties’collective agreement, credit for TLUs was based on the performance orcompletion of work, and not simply on a faculty member’s status as an employee.

Arbitrator Hallupheld the College’s position and dismissed the grievance. He found the terminstructors in question were not treated adversely because of their sex orfamily status. Rather, the sole reason for the denial of TLU credits was thatthe instructors had not performed the work required for the preparation anddelivery of courses. Accordingly, it was not discriminatory for the College todifferentiate between employees in relation to this service-driven element ofthe employment relationship. He found that the Association had failed to establisha prima facie case of discrimination.

The arbitratorwent on to find that even if the Association had established a prima facie caseof discrimination, the College would not have been able to accommodate theemployees’ protected characteristics without suffering undue hardship. He concludedthat the College would have suffered undue hardship if it had been required togrant conversion to the faculty members without them having performed the workrequired for the completion of the requisite number of TLUs to qualify forconversion.

 

Arbitrator Hall’saward makes it clear that where a collective agreement requires a non-regularfaculty member to complete a specified amount of work before the faculty memberwill be eligible for conversion to a regular appointment, it is notdiscriminatory for the employer to suspend the accrual of such work duringperiods when the faculty member is on pregnancy or parental leave.

 

For questions concerning the information presented in this article, please contact Colin Gibson, Partner.



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