The Alberta Teachers’ Association

The grievance process working for teachers

Maternity leave. Sick days. Health benefits. Your monthly paycheque. All of these employment benefits, enjoyed by every member of the Alberta Teachers’ Association, are realized as a result of teacher collective bargaining agreements.

Although the wording of collective agreements is clear in most circumstances, confusion or interpretation can sometime factor into the reading of a particular clause. When the Association and the employer disagree about the interpretation of a collective agreement, or one party believes that the collective agreement is not being applied correctly, they can attempt to resolve the difference through the grievance process.

A grievance is a formal process for resolving an alleged violation or difference of interpretation of a collective agreement. Each of the collective agreements between the Association and Alberta school boards outlines the specifics of their grievance process. When this local process does not generate a solution, the next step is arbitration, a legal proceeding that leads to a decision by a three-person arbitration panel or in some cases, an individual arbitrator. The arbitration process is identified within the grievance procedures of each collective agreement.

While there have been countless arbitrations throughout the history of teacher collective agreements in Alberta, the following three cases are noteworthy in their sweeping importance and implications for teachers.

Duley v County of Parkland No. 31 — 1993
Background

Ms. Duley had been teaching for more than 30 years, the last 18 with the same division, when she became ill in 1992 and was unable to return to teaching. She went on long-term disability. At the time, her collective agreement indicated that the board was responsible for covering 85 per cent of the health benefit premium costs, and the teacher was responsible for the remaining 15 per cent.

The division informed Ms. Duley that, while she was on long-term disability, she was responsible for paying the entire cost of the benefit premiums. The division’s interpretation was based on the following wording in the collective agreement: “For teachers enrolled in ASEBP Plan D (LTDI), after 90 continuous days of illness, sick leave benefits shall be suspended and no further salary shall be paid.” The board argued that its portion of benefit premiums were part of “sick leave benefits” and that it was therefore not responsible for paying these while the teacher was receiving long-term disability or extended disability benefits.

The Association assisted Ms. Duley in filing a grievance, arguing that she should not be responsible for 100 per cent of the premium costs while on long-term disability, and requested as a remedy that the division continue to pay 85 per cent as per the collective agreement.

The Decision

The arbitrator made it clear that the language in the collective agreement characterized salary payable during sick leave as the sick leave benefits. This was to say that a teacher in receipt of long-term disability benefits would not be entitled to salary from the employer. The arbitrator stated that “the obligation to pay a portion of premiums is expressed in absolute terms. It would take equally explicit language to suspend or terminate that obligation. The words sick leave benefits is not a sufficient expression of intention to remove that obligation.”

The only condition a teacher must meet to have the benefit premiums covered is to be employed by the school division and to participate in the benefit plan. Ms. Duley met both these conditions. The arbitrator directed the board to continue to pay 85 per cent of the teacher’s premiums for the duration of the time the teacher was on long-term disability and wished to continue the coverage.

Hutchings v Christ the Redeemer No. 3 — 1996
Background

Ms. Hutchings was pregnant and expecting her baby on Jan. 24, 1995. She notified her school division of her intention to commence maternity leave on the actual date of her baby’s birth. On Jan. 2, her doctor advised her not to return to work due to medical complications associated with her pregnancy. Ms. Hutchings notified her division that her doctor was placing her on sick leave until her baby was born. Her division then indicated to her that it required her to begin her maternity leave, as she was off work for medical reasons due to her pregnancy.

This change would require that Ms. Hutchings apply earlier than she’d planned for Employment Insurance (EI), which would bring her benefits under the Supplementary Unemployment Benefit (SUB) plan.

Ms. Hutchings did not agree that the division could unilaterally change the start date for her maternity leave and she did not apply for EI and did not begin to access her SUB plan benefits until after her baby’s birth on Jan. 19. As a result the school division did not pay her sick leave between Jan. 3 and Jan. 19.

The Association assisted Ms. Hutchings in filing a grievance alleging a violation of the collective agreement, as she had the exclusive right to decide when her maternity leave started, and was entitled to sick leave if she was unable to work prior to the commencement of maternity leave. This matter was not resolved at the grievance level and went to arbitration.

The Decision

The arbitrator agreed that there was nothing in the collective agreement that restricted the availability of sick leave prior to the commencement of maternity leave. All the collective agreement prescribed was that, once maternity leave had begun, there was an obligation to access benefits under the SUB plan rather than sick leave benefits. The arbitrator continued to agree that there was nothing in the collective agreement that gives the division the right to decide when a teacher’s maternity leave is to commence.

The arbitrator confirmed that Ms. Hutchings was entitled to be paid sick leave for the period from Jan. 3 through Jan. 18, inclusive, and for the remaining days of the week post-delivery until the Sunday when she could begin her EI claim. In addition, although her maternity leave commenced with the birth of her baby, Ms. Hutchings was entitled to her sick leave for the two-week waiting period until she began receiving her EI benefits and would then also access benefits under the SUB plan.

Bruse v Calgary School District No. 19 — 2009
Background

Although she desired full-time employment, Ms. Bruse was hired on a part-time probationary contract with a 0.4 FTE and was scheduled to teach on Tuesdays and Thursdays. This part time contract was not sufficient for Ms. Bruse to meet her financial obligations and therefore she found additional employment scheduled for Mondays, Wednesdays and Fridays. The school principal, unaware of Ms. Bruse’s additional commitments, expected and then directed her to attend school on days other than Tuesdays and Thursdays. In particular, she was directed to attend professional development days and parent/teacher interviews. This was problematic for Ms. Bruse, who now had other professional commitments on Mondays, Wednesdays and Fridays.

Ms. Bruse informed her principal that she was not available to work on days other than Tuesdays and Thursdays. When she did not attend the additional activities, she was disciplined by a one-day suspension on two different occasions. Her principal wrote in her evaluation that she was noncompliant and did not recommend her for another contract.

The Association assisted Ms. Bruse in filing a grievance indicating that she believed it was a contravention of the collective agreement for the board to have an expectation that she be available for work on Mondays, Wednesdays and Fridays. The matter was not resolved at the grievance level and went to arbitration. The arbitrator concurrently heard her Board of Reference appeal to determine if the disciplinary action was substantiated.

The Decision

The arbitrator found that the arrangement agreed to by Ms. Bruse and her principal was a part-time contract with work to be done on Tuesdays and Thursdays. This was recorded in various ways including email exchanges and as part of the school timetables. Therefore the arrangement that Ms. Bruse perform her teaching obligations of a 0.4 FTE on Tuesdays and Thursdays became part of Ms. Bruse’s contract of employment.

The arbitrator determined that the school board had no right to Ms. Bruse’s time outside the period for which it had contracted and for which it was paying. Therefore, Ms. Bruse was required to work only on Tuesdays and Thursdays. The arbitrator went on to clarify that, although it is convenient to have parent/teacher interviews at one place and at one time, Ms. Bruse could fulfil her professional obligations and arrange to meet with parents at a time when she was scheduled to work.

The arbitrator then confirmed that the disciplinary action against Ms. Bruse was not justified and directed the school board to remove the suspensions from her files and to remove all references of noncompliance and the recommendation against a further contract from her evaluation. The school board was also directed to offer Ms. Bruse a one-year full-time probationary contract.

Genevieve Blais is an executive staff officer in the Teacher Welfare program area of the Alberta Teachers’ Association.