Canada: Bender: No Discrimination Based On Sex Or Family Status

Employers whose workforce accrue seniority based on days actually worked will want to take note of a recent employment decision by the Human Rights Tribunal of Ontario ("HRTO") which considered allegations of discrimination based on sex (including pregnancy) and family status.

In Bender v. Limestone District School Board, an educational assistant alleged that her employer's practice of calculating seniority on the basis of time worked as a casual employee was discriminatory because it effectively excluded her time on maternity leave. The complaint was dismissed by the Vice Chair on the ground that all casual employees who became permanent employees were not credited seniority when they were unavailable for work, regardless of the reason for the unavailability.

Background

On April 21, 2001, Ms. Shellie Bender ("Bender") commenced employment with the Limestone District School Board (the "Board") as a casual educational assistant. Under the collective agreement, casual employees were not provided any guarantee with respect to hours of work. Conversely, casual employees were not required to provide the Board with any guarantee of availability.

In April 2005, Bender took her first maternity leave, returning in October 2006 as a casual educational assistant with the Board. Between 2007 and 2011, Bender took her second maternity leave and was also off on sick leave on several occasions. On February 1, 2012, she was hired as a full-time caretaker.

In January 2013, Bender requested credits towards her seniority for the period she was on maternity and sick leave. She was advised that under the collective agreement, time spent on maternity leave would not accrue towards her seniority and that she would only be credited for actual days worked as a casual employee. Bender commenced an application with the HRTO alleging that the Board's practice was discriminatory on the basis of sex, including pregnancy, and family status contrary to the Human Rights Code (the "Code").

Position of the Parties

Bender took the position that the Board's refusal to recognize her maternity was discriminatory given its effect on educators who identify as women. She argued that women who get pregnant and take maternity leaves are put at a disadvantage compared to their male counterparts because they are unable to accumulate the same amount of seniority over a fixed period of time. On this basis, she claimed that the provision of the collective agreement was discriminatory since it limited her ability to accrue seniority. This in turn reduced her chances of filling vacancies and made her more vulnerable to layoffs and less likely to be hired back after layoffs.

Bender relied heavily on the 1999 Ontario Court of Appeal decision in Ontario Nurses' Association v. Orillia Soldier Memorial Hospital which dealt with the impact of seniority provisions in a collective agreement. In that case, a collective agreement provided that nurses on unpaid long-term disability leave would remain employees but would not accumulate seniority after one year of absence. This was significant given that seniority was directly tied to workplace opportunities, including filling vacancies and determining the order of layoffs and hire backs. However, unlike Bender's case, seniority was accorded to these individuals based on the passage of time of employment rather than actual performance of work. After a careful review of the collective agreement, the Court of Appeal concluded that the provision in question was discriminatory as it exposed nurses on long-term disability leave to an increased risk of layoff and made them less able to compete equally for promotions.

The Board argued that Orillia did not apply and differentiated it on the ground that it involved the entitlement of seniority credits of permanent employees rather than casual employees. The Board maintained that all casual employees were treated the same under the collective agreement in that they did not accrue seniority when they were unavailable for work, regardless of the reason for the unavailability. The Board emphasized that this method of calculating seniority was the only way to award casual employees any recognition for their past service since the collective agreement afforded them the complete discretion to refuse work at any time and for whatever reason.

Decision

The Vice Chair's decision turned primarily on the fact that the collective agreement accorded seniority based on performance of work rather than the passage of time of employment. This was a key distinction from Orillia because it meant that all casual employees were subject to the same calculation of seniority credits, regardless of the reason for their unavailability. In addition, the Vice Chair noted that, although Bender had the right to be offered work, she had no right to guaranteed regular hours. In light of this, the Vice Chair opined that it could not be said "that but for childbirth and associated leave (or any other form of protected leave), she would have been offered a certain number of hours of work".

In conclusion, the Vice Chair held that Bender's inability to accrue seniority while on maternity leave did not amount to discrimination under the Code and accordingly dismissed the application. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions