Managing employees who are on a leave of absence is often a
difficult task for employers. Among other things, employers must
understand the contractual, statutory and common law obligations
which are owed to such employees, particularly with respect to the
protection and continuation of benefits. Employers who fail to meet
their obligations in this regard may find themselves facing
grievances, human rights complaints, employment standards
complaints or wrongful dismissal claims (in the case of
This issue was recently considered by the B.C. Court of Appeal
in British Columbia Teachers' Federation v. British Columbia
Public School Employers' Association.1 This case
involved a grievance brought by a local of the British Columbia
Teachers' Federation (the "Union") in which the Union
claimed that the Board of Education of School District No. 61
(Greater Victoria) (the "Employer") had breached the
collective agreement when it failed to credit teachers who were on
maternity and parental leaves with work experience for the purpose
of salary increases.
Under the collective agreement, teachers were paid based on
salary grids. A teacher was entitled to advance one increment in
his or her salary grid for each year of teaching experience. The
collective agreement described limited circumstances in which a
teacher who was absent from work could be credited with teaching
experience for the purpose of advancing to the next increment in
the salary grid to earn the wage increase. However, those
circumstances did not include absences while an employee was on
maternity or parental leave. With respect to those types of
absences, the collective agreement simply indicated that teachers
were entitled to pregnancy and parental leave in accordance with
the B.C. Employment Standards Act (the "ESA").
At first instance, the arbitrator held that teachers were not
entitled to be credited for teaching experience while on maternity
or parental leave, and accordingly, were not entitled to advance to
the next step of the salary grid. In his reasoning, the arbitrator
took the view that the increments in the salary grids were intended
to reflect the value and reward of actual teaching experience and
professional development and not simply to reflect the passage of
time and length of service of an employee. The arbitrator also
considered s. 56 of the ESA, which addresses benefits and
entitlements while employees are on one of the statutorily
protected leaves of absence. The arbitrator noted that under s.
56(1) of the ESA, employment was deemed continuous for the purpose
of specific benefits (namely vacation, pension, medical or other
plans beneficial to the employee) while s. 56(3) provided that
employees were entitled to wage increases which they would have
been entitled to had the leave not been taken. The arbitrator found
this distinction was significant, concluding that the ESA only
deemed employment to be continuous for the purpose of the specific
benefits listed in s. 56(1) and in particular, did not deem
employment to be continuous for the purpose of teaching experience
(and therefore the consequent salary increases).
The B.C. Court of Appeal held that the arbitrator erred by
interpreting the collective agreement to ascertain that the
intention of the parties was to credit teachers with incremental
steps within each category on the basis of actual teaching
experience, and then utilizing that intention when interpreting s.
56(3) of the ESA. This, in the Court of Appeal's view, caused
the arbitrator to reach an unduly narrow interpretation of s.
The Court of Appeal explained that the ordinary and plain
meaning of s. 56(3) made clear that an employee on leave is
entitled, upon his or her return, to any increase in wages to which
he or she would have been entitled had the leave not been taken. In
the Court of Appeal's view, there was no basis for making a
distinction between wages earned through actual work and wages
earned through length of service. As the Court of Appeal explained,
if, by continuing to work, an employee would have received an
increase in wages through a credit of an incremental step, then the
employee is entitled to the same increase if he or she took a leave
of absence under the ESA rather than if the employee continued to
Determining which benefits may continue while an employee is on
a leave of absence can be a complicated issue which, depending on
the circumstances, may require an employer to consider statutes
governing employment standards, as well as contractual obligations
contained in a collective agreement or contract of employment.
Employers should always exercise caution when discontinuing or
limiting the benefits of an employee who is on a leave of
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).