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Accommodated teachers cannot be reassigned from full-time to part-time status until their sick leave and disability benefits exhausted

Accommodation E-lert, posted on January 4, 2024 within the category "The impact on your collective agreement".

Three public school teachers in British Columbia had been accommodated by the employer with part-time teaching hours while retaining their full-time status.  This enabled them to maintain access to sick leave and disability benefits which maintained their salary as the rate of full-time teachers.  After several years with this accommodation, their respective physicians stated to the employer that the employees each had no reasonable prospect of returning to full-time work in the foreseeable future.  The employer then reassigned them to permanent part-time status, with part-time benefits and salary.  The union grieved the change in status as a breach of the collective agreement and a failure to accommodate.  A labour arbitrator allowed the grievance, ruling that, under the collective agreement, the employee’s status could not be changed until they had exhausted their full-time rights to sick leave and disability benefits.  

Legal Citation 

B.C. Public School Employers’ Association School, District 68 (Nanaimo-Ladysmith) v. BCTF/ Nanaimo District Teachers’ Association, 2023 BCLA 71655 (July 27, 2023) (Arbitrator Allison Matacheskie) 

Facts

Three teachers, Stephen Elwood, Christopher Depka and Margaret Dent, were each on approved partial medical leaves, allowing them to work part-time while retaining their full-time status. 

All three were employed by a public school board on Vancouver Island. 

After receiving medical reports from each of the employees’ physicians that there was no reasonable expectation that any of them would be able to return to full-time work in the foreseeable future, the employer reassigned them to permanent part-time status.  

Mr. Elwood’s reassignment to permanent part-time status meant that he could no longer use his accumulated sick-leave credits to maintain his full-time salary.  This meant that his income decreased, and his pension entitlement was reduced. 

For Mr. Depka and Ms. Dent, they taught part-time hours for several years while maintaining their full-time status through the use of their sick leave credits.  However, their credits were eventually exhausted.  They were then approved for short-term disability benefits, which sustained their full-time income.  However, once the employer reassigned them to permanent part-time status, they were no longer able to use these benefits to maintain their full-time salaries.  As a consequence, they suffered a drop in income and a reduction in their pension entitlements. 

The union grieved the consequences of their reassignment to permanent part-time status.

Analysis 

At arbitration, the union argued that the reassignment of the three teachers to permanent part-time status for non-culpable reasons violated both the collective agreement and the duty to accommodate.  It submitted that the three teachers were entitled to retain their permanent full-time status as the reduction denied them access to negotiated sick leave and short-term disability benefits under the collective agreement.  

In response, the employer submitted that it had reasonably accommodated each of the employees by allowing them to retain their full-time status while their medical conditions were stabilizing and their prognosis regarding a return to full-time work was uncertain.  Their status was only changed to permanent part-time once objective medical documentation confirmed that they would not be able to return to full-time work within the foreseeable future.

Arbitrator Allison Matacheskie first stated that the real substance of the issue in dispute was whether the reduction of the teachers’ full-time status was either a violation of the disability-leave provisions under the collective agreement, or otherwise a breach of their accommodation rights under the collective agreement and the Human Rights Code.

In her reasoning, Arbitrator Matacheskie held that whether there was an actual inequity or conflict arising from a change in their employment status would depend upon the circumstances of the case, the terms of the collective agreement and any short-term or long-term disability plans negotiated by the parties.  She quoted from an earlier British Columbia arbitration ruling in Hayes Forest Services:¹

Where the parties have negotiated benefits specifically for injured workers, it would be inconsistent with those rights to permit dismissal based on non-culpable absenteeism where this event deprives a disabled employee of the right to receive the benefits 

Although the Hayes case dealt with a dismissal, the arbitrator stated that the same principle was applicable in cases involving a reduction in a permanent full-time status.  

In this present case, the three teachers had not exhausted their entitlement to sick leave or short-term disability benefits that they had earned while working full-time.  Mr. Elwood was eligible to continue to use his accrued sick leave.  Mr. Depka and Ms. Dent were eligible for disability benefits in the same manner as the years before if they had remained at full-time status.  The three teachers were using negotiated sick-leave benefits to provide a financial bridge for the loss of full-time income caused by their permanent partial disabilities.  In the arbitrator’s view, it was not an abuse of sick leave for the teachers to access their accrued sick-leave credits earned as a full-time employee to bridge the lost income arising from the hours that they could not work.

Arbitrator Matacheskie found that the change in status adversely affected the teachers’ entitlements to income protection.  They were not able to use their newly allocated days of sick leave because of the reduction in their full-time hours.  Consequently, as they did not exhaust their sick leave, they were denied disability benefits.  Therefore, the reduction of their hours during their illness prevented them from being able to continue to receive short-term disability benefits for that same illness. 

In explaining her reasoning, the arbitrator stated, “Sick leave is a service-driven benefit that arises from work performed.”  She continued:

…the principles in cases concerning termination of employment for innocent absenteeism apply where there is a reduction of [full-time status] due to an inability to work full-time as the Collective Agreement provides for sick leave and partial disability benefits for the purpose of ensuring continuation of full-time income for partially disabled employees, or close to full-time income if benefits are a percentage of regular income… [Emphasis added]

Arbitrator Matacheskie pointed out that the employer was not paying the teachers for work that they did not perform.  Rather, they were being compensated through a negotiated collective agreement provision which allows employees to rely on sick-leave benefits and short-term disability benefits to protect their income when a disability prevents them from working full-time. 

She stressed that, if the teachers had exhausted their sick-leave or other disability benefits under the collective agreement during their full-time work, then the reassignment to permanent part-time status would have been appropriate if there was no reasonable expectation that they would be returning to full-time hours in the foreseeable future.  

Accordingly, the arbitrator allowed the grievances and reserved jurisdiction on remedies. 

She noted that this case was resolved on the language of the collective agreement, and there was no need to address the union’s other arguments on reasonable accommodation and undue hardship.  

Implications for Employers 

Whether employers can reduce an employee's permanent status from full-time to part-time depends on the language of the collective agreement.  In many collective agreements, the negotiated language on sick leave and short-term disability benefits may be strong enough to sustain the continuation of an employee’s full-time status until these benefits have been exhausted.  This may be true even where there has been medical evidence that the employee is unable to return to full-time duties for the foreseeable future. 

Implications for Unions 

The best protection for the income of union members who have a disability and cannot work, or can only work part-time hours, is collective agreement language regarding earned sick-leave and disability benefits.  However, if the collective agreement language is not strong enough to provide income protection at a full-time level, the duty to accommodate and the undue hardship principle is available as a back-up argument.  But keep in mind that the duty to accommodate ordinarily states that an employer is entitled to pay for productive work, unless the employee is engaged in a short-term work-hardening exercise after returning to work from a disability leave.  

¹ Hayes Forest Services Ltd and Industrial Wood and Allied Workers of Canada, Local 2171 (Androsoff Grievance), 1998 BCCA 54.