Hard-Won Victory for Term Employees and Equal Rights
Brigitte Lavoie, CS Group member working in the National Capital Region, considers herself a fighter who stands up for what she believes. Brigitte was a term employee who lost both her job and the opportunity to qualify for indeterminate status because she was on maternity leave. With the help of the Institute, notably CS Group Chair, Luc Carrière and Isabelle Petrin, ERO, she fought and won a battle for equal treatment for all term employees who take parental leave.
Brigitte’s strength of character and sense of justice got her through this five-year battle which culminated in a victory before the Canadian Human Rights Tribunal in June 2008. Thanks to her efforts, all Institute members employed in term positions will benefit.
As she looks back on her ordeal, Brigitte recalls:
Brigitte credits the support of labour relations staff at PIPSC who helped get her through the long process, and especially the Institute’s legal staff who helped in the “last few miles” of the battle.
For Brigitte, giving up was never an option. Now that her case is over, she feels a great weight has been lifted from her shoulders to be replaced by a huge sense of satisfaction.
Brigitte Lavoie was hired for the first time in August 2000 by Industry Canada as a term employee for one year. This contract was renewed twice more until August 2003. During her third contract, Ms. Lavoie left to take maternity and parental leave. She anticipated that she would return to work after only six months of leave and, therefore, she would receive the maternity allowance (93% top up) included in the collective agreement.
However, an unexpected turn of events – the lack of available daycare for her baby – compelled her to prolong her leave. At this time, the employer stopped paying her parental allowance and informed her that her employment would be terminated effective August 2003.
During her leave, the employer informed Ms. Lavoie that competitions would be held in order to fill seven permanent positions in the department. It is important to note that seven other term employees worked with Ms. Lavoie. This means that eight term employees were competing for seven indeterminate positions, including Brigitte, who was the only one on maternity/parental leave.
Before proceeding with the competitions, the employer offered training to the seven term employees, but not to Ms. Lavoie. Obviously disadvantaged, Ms. Lavoie placed last on the eligibility list and was not offered a position.
During this time, a new policy on term employment was implemented, which included two important points:
(1) “where a person who has been employed in the same department/agency as a term employee for a cumulative working period of three years without a break in service longer than sixty consecutive calendar days, the department/agency must appoint the employee indeterminately at the level of his/her substantive position.”
(2) “a period of leave of absence without pay longer than 60 consecutive calendar days does not constitute a break in service and will not be included in the calculation of the cumulative working period for appointment to indeterminate status.”
This policy was effective April 1, 2003 during Ms. Lavoie’s maternity leave. It meant that the last four months of her leave (between April and August) would not be credited as part of her service. This prevented her from attaining the three consecutive years of employment necessary to ensure conversion of her employment status from term to indeterminate.
Recourse and Litigation
As soon as Ms. Lavoie advised the employer of the need to extend her leave, the employer stopped paying the parental allowance provided by the collective agreement. The Institute filed grievances to contest this decision by the employer. These grievances were filed under the auspices of the former Public Service Labour Relations Act, which had no provisions dealing with discrimination.
Following the implementation of the new policy on term employment, a complaint to the Canadian Human Rights Commission (CHRC) was filed against Industry Canada. The complaint was filed on the basis of discrimination against sex (which includes pregnancy and childbirth) under article 7 of the Canadian Human Rights Act, as well as article 10 which concerns discrimination during the course of employment.
The grievances were presented at all levels of the hearing process, including the third and final level, without success.
The complaint against Industry Canada was resolved in mediation on October 20, 2003. This was a partial victory for Brigitte, giving her indeterminate employment status effective November 17, 2003. Unfortunately, payment of the maternity allowance covered under the collective agreement, and the loss of revenue between August and November following the implementation of the Term Employment Policy were not addressed.
Industry Canada indicated that it had no choice but to apply the policies of Treasury Board and it was impossible to address all the corrective measures demanded as a result of the implementation of these policies.
In view of this response, Ms. Lavoie and the Institute signed an agreement with Industry Canada to ensure the return to employment, but reserved the right to file a complaint directly against Treasury Board.
The Complaint and the Decision
In January 2004, Ms. Lavoie filed a second complaint of discrimination on the grounds of sex against Treasury Board, specifically contesting their policy on term employment. Following the investigation by the Canadian Human Rights Commission (CHRC), the complaint was referred to the tribunal for decision.
Because this case was considered to be in the public interest, CHRC intervened in the case. After more than five years of litigation and nine days of hearings, the tribunal rendered its decision on June 20, 2008.
It declared that by not taking into account maternity leave or parental leave, the new policy of the respondent – Treasury Board – economically disadvantaged women employed as term employees who took maternity or parental leave (article 7 of the Act) and could potentially deny their chances of employment or advancement by reason of their sex (article 10 of the Act).
The tribunal ordered Treasury Board to compensate Ms. Lavoie for all loss of salary including the maternity/parental allowance (93%) and the payment of $5,000 in compensation for pain and suffering.
The tribunal ordered Treasury Board to modify its Term Employment Policy, effective April 1, 2003, to address issues of sexual discrimination, including those linked to the exclusion of the duration of maternity or parental leave in the calculation of the period of employment for an appointment to an indeterminate position. This modification must be made in consultation with the Canadian Human Rights Commission.
Victory for Term Employees
This decision constitutes an important victory for our members who occupy term positions. The insecurity created by the application of the Treasury Board policy, as well as the consequences of leaving the workplace to start a family that automatically delayed access to the conversion of term to indeterminate status, no longer exists for women who choose to have children.
However, the battle is not yet over. Potential for other discrimination still exists. For example, this decision did not provide any precise determination concerning leave of more than 60 days for fathers on parental leave (discrimination on the grounds of family status) or sick leave (discrimination on the grounds of disability).
The Canadian Human Rights Commission is well aware of these other grounds for potential discrimination in the current policy. The Institute looks forward to seeing the language of the revised policy.
On August 6, 2008, Treasury Board confirmed in writing that this decision would not be the subject of an application for judicial review.
The decision is posted at www.chrt-tcdp.gc.ca; reference: Lavoie v. Treasury Board of Canada