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CANADIAN LABOUR REPORT Alberta Court Releases Decision On Sick/Maternity Leave Appeal Statutory Provisio ns Provide Broader Interpretatio n T he/ o/low;"8 ;S excerpted/rom a :;pec:iu/ memmumlwlI published by The Wyatt Company, CO/lst,lromsa"dacmar;es. Toronto. UllIano, COllada. It concerlls the mailer 0/ th. Individual's Righls Protectioll Acl with respect fO a compla;"t by S usan Parce ls aRainSf Red D eer General at.d Auxiliary Hospilal, U"ited N'lrSillg Home 0;., Iricl No. J 5, and Uniled Ntlr.es 0/ Alberta Local O(}2, and th e Alberla Hospital Associalioll, Board 0/ /"qllil)'. In a rccenl decision by Iustice MargueriteJ. TrussleroflheAlbena Coun of Queen's Bench on a full appeal challenging the earlier decision of a Board of Inquiry, lhe ini tial complaint by Susan Parcels brought lhe IOllg-awaited relief. The findings of the Board of Inquiry, which was appoinled by the Minister of Labour with regard to the Albena Individual Rights Plolection Act. follow. Labeled the Parcels Appeal, the panies asked the Board of Inquiry to explain the meaning of a simi ~ lar case- Brooks v. Canada Safeway (Brooks>-and how it is to be applied in the reality of the workplace. n,e board responded: "Susan Parcels was discri min;ued against by her employer and her union. It wa s di scrirnimH i_on for Ihe COIlf:r.li ve IIt EW JOURNA L/AUGUST 1992
maternity lenve to pre pay 100 percent or premiullls in ord er 10 retain benefits covera ge for that pan of her absence which i, health-related. Employees absent on sick leave were required 10 pay 25 percent ohhe premiu m fonhe ,arne benefits. 111e rationale in BroOKS is th,1I an employer wilh a benelib plan must compensate it;.. pregnanl employees when th ey arc abscnl from the workplace for a valid heahh-rcl ated reason in the same way. and 31 1hc same level. as it compensates any employee abseJ1l on sick leave. The benefits plan Illust pay pregnant employees for the entire period o f their health-related ah'::;t~Ilr.r: wherever it occurs during the prede l ivery, childbinh and recovery from childbirth periods. There is no presumptive period for the beginning or end of the healthrel ated portion of lhe absen ce . A preg ~ nanL emp loyee mu st follow the ~a l '1c proof of claim procedures a' for other disability claims lO establish that tlte health-relmed absence is v" lid. The benefits for the healt h-related absence ponion of a mmernity Icnve are payable whether or nOt this portion occurS before, during or aflCr a period of unpaid voluntary maternity leave. In particular, the benefits must be pai 1 notwith stand ing cenain insuran ce princi pl es which. in orhercru,c::ot. would prevent payment ofbcncfil when a hcahhrelated reason for absence occurs dur~ inga voluntary leave. Tht" foreseeabi lity of a health-related absence due to pregnancy in Ihecourseora l1littemilY Icave distinguishes- the preSenl C3M! from other circumstances in which Ihe indemnily principle of insurance operate [0 pre ~ ve nt payment. Employers can take advantage of the Unemployment Insurance (UI) Supple- 1III:'I Itary Unemployment Bene fi t (SUB) plans regulations 10 offsct orne COsls. However, an employee cannOl recei\le less than she would under the employer benefits. plan. An employer cannOI usc a SUB piolil if it results in discrimina- 11on . The rationale in Brooks is thot on employer with a benefits plan must compensote its pregnant employees when they are absent from the workplace for a valid healthreloled reason in the same way, and at the some level, as it compensates any employee absent on sick leave. Conclusions of The Alberta Court Of Queen's Bench The appellan ts (the IIlberu. H spitul Assoc iation and the Red Deer cnera l & Auxil iary IIn"'pila l ~ lI1 d Nu rsi ng 110001lC) chullellgl::ti Ihe nll d ill g~ thill .tIl employee c ultl take iI health-related leave between I WO periods 0 1' "volur) tary" pregnancy leave and "sked the COll rl 10 rule Ihal a ny discrimination could be remedied boY the use .. I a SUB pl",,_ The Board o f Inq uiry found that bec~""e a SUB plan could top-up UI benefit, only to the extent of ~5 pc rcen t o f salary. a S a plan eoultlnot be ul\ed if thi ~ amount is less than an employee on sick leave would receive. i.e., IIXI percent. Addi tional evidence wa s ~ u b miHed on appcnl Ihm the amount received from I UB plan, are not ; ubject to deduction ... for I or Canad,1 Pension PIJn (CPP) premiu,ll'. 11< a result. on" nct b;,sis. Ihere b not. in faci. a di~crcpaney of live percent be tween the two methods of paymenl. In Ihe case of the nurses, on il net b"sis before taxes. the lowes1 paid Mi.lrr nUl1'Ie wou ld receive 100.2 percent of her regular net pay when she received UI plu, SU B plan benei1h. The htSh c:-.l paid :-.lllff nurse would receive 99.75 percenl of hcrregular Ilet pay under [he same circul11- SWnccs. ounscl fOl" the union, LocHI 002, Alberta, submitted that a S B plan ha, olher imp li catio n ~. For example. there would be loss o f C PP pensionable time :md no acc ru al of vacation days under a SUB plan. She argued that th,s question s hould be resubmitted to the Board of Inquiry or left to collective bargaining. Cou,,,el for the Alberta Human Right, COlllmis>ion sug~es t ed that the is~ u c !iihou ld be len to Ihe d i~cre l ion of the cOl11 mi ~~ion a!'l (0 whether or nOI it wo uld pursue a complaint if a SUR plan were used. The judge noted that Brooks provided that benefits avnilable th rough employmenl must be disbursed in a non-discriminatory manner.lt did nOI sal' that they mu~t be identical. She al so noted that employees involved in wo rk-related accidellls were eligible for workers' cU III ~lIsa'iu ll . while accidents OCC UlTing away from the workplace are covered by sick leave. Thercrare, not all hea lth -related teaves are trealed in Ihe same manner. Ba sed on the above. Jus 1ice Trussler concl uded tha t Ihe plan, do not have to be identiC'-II . a long as lhey are substantiall y Ihc s"me. In the fi nal re,ult, she allowed the appeal on ly wjth respect tQ the lise of S B plans. The Alber", Hospital As octation has an nounced th" t they wi ll not be fu rther aPI>ealing Ihis dcci!-ion_ In lh(l~C prov inces where cmploycei-. are entitled 10 !-lick benefi ts for heahhrelated reasons both before and after deli very, the appeal decision in the P(lrce/l ca ... c offe~ ~omc relief. By implement ing a sua plan, employers can Iimiltheir additionallialJili1y 10 lilt: difference belween Lhc UI benefi t and the percentage of salary payable under Ihe sick lcave program. This decision is binding on Alberta employers. II is persu a"ivc in other Canad ian JunsdlclIon ... \ 111il or un less a human righ t co mmi s~ion or a court in one of thc:,e area!'! i:.,,,,UC'l a cont rary d cc i ~ i o ll . The appl i~ I blc "talutory provisions across Canad3 will be di scussed in the September issue of the IBEW ) 0111'110 1. " mEW JOURNAL/AUGUST t992 13
Page 2 and 3: EDITORIAL J. J. Barry Internatiolla
Page 4 and 5: Col ~:--..a."-,, Would The IBEW hel
Page 6 and 7: II f I ( 1 0 ~g SEEING HOW AMERICA
Page 8 and 9: a e Union Women- The Resolute Spiri
Page 10 and 11: many women \vork.ed but were nOl pa
Page 12 and 13: Founders' Scholars Continue Educati
Page 16 and 17: Workers' Compensation: Will it Be T
Page 18 and 19: HABITAT FOR HUMANITY L .. 16 (i), t
Page 20 and 21: Int rn- .. J.1. S.rry. Second Dl.st
Page 22 and 23: Hay bu!>y [lct"lridJn~ Jrom (IUr l
Page 24 and 25: Geauga L..nke Arnu.~", Parl. In I\u
Page 26 and 27: This updated and revised poster doe
Page 28 and 29: metodo de levantar el menton. IBE-W
Page 30 and 31: t"I«lIon ddy hCr) ,,"Ole doc, ("GU
Page 32 and 33: art' IIut rrll"lt:r~ to \OlC. do II
Page 34 and 35: From k!H , local 1426, Grand Forks,
Page 36 and 37: Hoyet_ TIMe Executi\le Board member
Page 38 and 39: Local t 340. Newport News, VA. Reti
Page 40 and 41: CPR: The Gift Of Life The illjormar
Page 42 and 43: EXECUTIVE COUNCIL MEETING MtNUTF.S
Page 44 and 45: N u~ent. James J EniJelman, rred S
Page 46 and 47: PAYMENTS OF DEATH BENEFITS NONRETIR
Page 48 and 49: Glneuo. Vlrnol'! 0 692 HuI1SOI\. Jo
Page 50 and 51: lOCII Surnlme Amou nl Loul Surn,me
Page 52: IHEW Journal 1125- 15th Street. N.W

IBE-W - International Brotherhood of Electrical Workers

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