The York Region District School Board breached its collective agreement when it refused to provide a teacher with sick leave benefits after she was unable to return from a deferred salary leave due to illness, an arbitrator has ruled.
The case involved a grievance filed on behalf of a teacher who had taken part in the board’s “three over four” deferred salary leave plan, which allowed her to spread her salary over three years and then take a paid leave in the fourth year. Shortly after beginning that leave in 2021, the teacher suffered a serious medical condition that left her unable to return to work in September 2022.
When the 2022–23 school year began, the board declined to refresh her paid sick leave bank, leaving her without access to sick leave, short-term disability benefits or long-term disability coverage. She remained on unpaid medical leave until her eventual return in September 2024.
The Elementary Teachers’ Federation of Ontario (ETFO), York Region, argued the board violated the collective agreement by failing to allocate sick days at the start of the school year. The federation said the agreement clearly provided that permanent full-time teachers are entitled to 11 fully paid sick days and 120 short-term disability days “on the first day of each school year,” subject only to certain restrictions that did not apply in this case.
The board countered that sick leave benefits must be “earned” through a return to work, and relied on prior arbitration awards involving similar language to support its position. It also argued that a deferred salary leave should be considered an unpaid leave, making the teacher ineligible for refreshed sick leave without resuming active duties.
Union’s position
The union submitted that the language of Article C6.1 of the collective agreement entitled the teacher to a full allocation regardless of her date of return to work, provided she was not coming back from sick leave, Workplace Safety and Insurance Board benefits, or long-term disability. Since the teacher was returning from a deferred salary leave—an earned benefit distinct from illness-related leave—the restrictions did not apply, the federation said.
ETFO told the arbitrator that denying the allocation caused serious hardship, as the teacher had no sick leave history, had not used days prior to her leave, and was unable to work due to a bona fide and serious medical condition.
Board’s argument
The school board submitted that established arbitral jurisprudence supported its interpretation that sick leave must be triggered by a return to work. It relied on earlier rulings in disputes involving the Ontario Secondary School Teachers’ Federation and the Ontario English Catholic Teachers’ Association, where arbitrators concluded attendance was a necessary precondition to refresh a sick leave bank.
The board also argued that the federation’s own submissions in a previous interest arbitration confirmed the “status quo” that employees must return to work in order to refresh their entitlement.
Arbitrator’s decision
The arbitrator determined that the plain wording of the agreement entitled the teacher to a full sick leave allocation at the start of the 2022–23 school year.
On a “plain and ordinary reading,” the decision stated, Article C6.1(b) and (c) required the allocation of sick leave days to permanent full-time teachers in each school year, and Article C6.1(d) required that the allocations “will be provided on the first day of each school year.”
While certain restrictions applied when absences carried over from a prior year’s illness, the arbitrator found those exceptions did not cover the teacher’s situation. “The grievor was returning from a leave other than sick leave, WSIB or LTD. Her DSLP leave was over. She was therefore eligible for a full allocation regardless of her date of return to work,” the decision stated.
The arbitrator rejected the board’s reliance on past awards, finding they turned on different language and factual contexts. The ruling emphasized that current sick leave provisions differ from earlier “earned credit” systems, and that arbitrators must interpret the language the parties actually agreed to rather than impose restrictions that are absent from the text.
The grievance was allowed, with the arbitrator finding the board violated Article C6.1. The matter of remedy was remitted to the parties, with the arbitrator remaining seized if they are unable to reach an agreement.
For a more in-depth look at this ruling, see coverage in our sister publication HR Law Canada.
