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Employers Can Exclude Days Spent on Maternity Leave for Purposes of Calculating Seniority for Casual Employees, the Human Rights Tribunal of Ontario Says

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The seniority system used by an employer is a very important consideration for the employees, as it affects the employees' pay, and often benefits and other aspects of the employer-employee relationship. In a recent case , the Human Rights Tribunal of Ontario ruled that a casual employee's inability to accrue seniority while on maternity leave was not discrimination on the basis of sex. As such the Tribunal allowed employers to exclude the time spent on maternity leave for purposes of calculating seniority.

In this case the employee was a casual education assistant for the employer. As a casual employee, she was not guaranteed any given hours of work, but was also not required to be available for any set amount of time. The employee took a maternity leave twice during her employment and was told that the days spent on maternity leave would not count towards determining her seniority. She then filed a complaint with the Human Rights Tribunal of Ontario alleging discrimination based on sex.

The employee argued that this policy discriminated on the basis of sex, as women are disadvantaged in accumulating seniority due to their childbearing responsibilities. In her argument, the employee relied on another Ontario case, which found a similar practice discriminatory, but the Tribunal distinguished the two cases on the basis that the employee in this case was a casual employee, not a permanent one. For this reason, the Tribunal ruled that the practice of the employer was not discriminatory, as all casual employees were denied seniority accruals during periods of unavailability for work, and the rule applied regardless of sex. This was important for the Tribunal, as casual employees were able to refuse work at any time, so seniority was the only way to award the high-performing employees. The Tribunal observed that, as a casual employee, it was not certain that the employee would have been offered any work hours during the time while on leave in any event.

While the same practice used by an employer with a permanent workforce was held to be discriminatory, unfortunately in this case the Tribunal refused to extend the Human Rights Code's protections to casual employees, who are often at an increased risk of disadvantage, due to the nature of their employment. The Tribunal did not however, totally foreclose future arguments of this nature and so protection could still possibly be extended to casual employees under a slightly different set of facts. We are hopeful that the advancement in workers' rights protections continues in its current direction.

If you believe that you have been wrongfully terminated by your employer, do not face your struggle alone. De Bousquet PC has a proven track record of fighting for the rights of employees and we will help you obtain the best results in your case.

Bender v. Limestone District School Board, 2016 HRTO 557

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