In City of Toronto v. CUPE, Local 79, the Ontario Divisional Court reaffirmed that employers may provide less compensation to an employee who works reduced hours due to a disability without violating the Human Rights Code (“Code”). In this case, the employer discontinued its past practice of permitting employees working part-time hours to remain in the full-time bargaining unit. The change meant that the grievor, who worked part-time hours as an accommodation for his disabilities, suffered a reduction in his benefit entitlements. The Court held that the reduction to the grievor’s benefit entitlements was not discriminatory under the Code.
Compensating full-time employees with greater benefits than part-time employees based on their working hours is not discrimination under the Code. However, if the employer chooses to continue to provide “full-time” benefits to an employee working reduced hours as an accommodation, it is advisable to clearly specify how long the gratuitous supplement of benefits will continue. For example, the employer may wish to extend the arrangement only to the point where medical documentation indicates that the employee’s need for reduced hours is permanent, or that there is no reasonable expectation of a return to full-time hours.
The grievor was hired in 1991 into a full-time position (Caseworker in the Toronto Employment and Social Services Division) within the bargaining unit of members working full-time. Three other bargaining units comprised members working part-time. Members of the full-time unit received greater benefits than members of the part-time units.
In 1999, the employer accommodated the grievor, who was living with disabilities at the time, by allowing him to work a 4-day week. However, the grievor remained in the full-time bargaining unit with no change to his benefit entitlements. In January 2016, following the expiry of the collective agreement, the employer announced that its past practice of permitting part-time employees within the full-time unit would cease in September 2016, with a two-year transitional period. As a result of the change in practice, the grievor was placed in a part-time program for two years and was required to pay a pro-rated portion of his health and dental benefits and his entitlement to vacation pay, sick days and pensionable service was prorated. The union grieved the transfer, arguing that it contravened the collective agreement and constituted discrimination against the grievor.
The arbitrator upheld the grievance. She found that the transfer was within the scope of the employer’s management rights under the collective agreement but the change to the grievor’s existing accommodation amounted to a violation of the Code. The arbitrator ordered the employer to return the grievor to his status in the full-time unit with full compensation.
Divisional Court’s Decision
The Divisional Court quashed the arbitrator’s decision finding that the employer’s conduct was not discriminatory under the Code. Notably, the Divisional Court found it unreasonable for the arbitrator to make such a finding in light of the Ontario Court of Appeal’s 1999 decision in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital. In Orillia Soldiers, the Court of Appeal considered whether an employer must continue to contribute to benefit programs for an employee who is off work due to a disability, since contributions to benefit programs are a form of compensation. The Court of Appeal held that requiring work in exchange for compensation is a reasonable and bona fide requirement. The Divisional Court reasoned that, in accordance with Orillia Soldiers, the employer’s failure to provide the grievor with the same benefits as those received by full-time employees is not discriminatory. In other words, the employer is not required to compensate the grievor for time not worked. The Divisional Court left intact the arbitrator’s finding that the employer was entitled under the collective agreement to transfer the grievor to the part-time unit.
- Many thanks to Jan Nato for his assistance with this article.