Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

Trillium Lakelands District School Board v Elementary Teachers’ Federation of Ontario is a labour arbitration award of interest for employers, notably those in the education sector, who face the “headache” of dubious sick leave claims. It is a decision that is not insensitive to the realities facing employees who suffer disabling conditions. But it is also a case that is steeped in common sense and reminds us of the need for personal responsibility in certain situations.

A teacher suffered a migraine headache on her last day of vacation (in Rome, Italy) and as a result missed her flight home, which in turn caused her to miss her first scheduled day of work following her vacation.

After investigation the Employer decided not to treat the absence as a disciplinary matter. However it denied the teacher a paid sick day. A grievance ensued, which went to arbitration.

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An unexpected conflict arose on December 12, 2006.  On one hand, Ontario joined a growing list of jurisdictions that abolished mandatory retirement.  But on the other, the amending bill left provisions in the Human Rights Code (“Code”) untouched that have long permitted insurance, benefit, and pension plan providers to differentiate in coverage based on age.  This means that older workers who continue to work past 65 may lawfully receive diminished benefits compared to their younger peers.

In a recent arbitration, the Ontario Nurses’ Association unsuccessfully challenged the constitutionality of these provisions.  The grievance challenged an employer-sponsored plan that substantially reduced, and in some cases eliminated, benefits to employees aged 65 and older.  Because the decision dealt with a fully-insured plan, however, no comment was made about whether self-insured plans containing age-based distinctions could also claim protection under the Code.

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The Ontario government released the Integrated Accessibility Regulation – its second set of standards under the Accessibility for Ontarians with Disabilities Act on June 3, 2011. The Regulation aims to promote access for people with disabilities in three broad areas:

• information and communications;
• employment; and
• transportation.

The Regulation was released following two rounds of public consultation and addresses several of the broader concerns that were raised by the private sector. For example, the definition of “small organization” was expanded to include organizations with 1 to 49 employees (as compared to only 1-19 employees under the Accessibility Standards for Customer Service). This came in response to concerns raised by mid-sized employers that the obligations were too onerous given the size of their operations. Similarly, many of the requirements under the information and communications standard are relaxed as compared to their first incarnation. The deadlines for compliance are also extended to take into consideration the fact that many organizations will need to invest in new software.

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