HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jane Purres
Applicant
-and-
London Athletic Club (South) Inc.
Respondent
DECISION ON REMEDY
Adjudicator: Lorne Slotnick
Date: November 22, 2012
Citation: 2012 HRTO 2180
Indexed as: Purres v. London Athletic Club (South) Inc.
1In a Decision dated September 18, 2012, I found the respondent had violated the Human Rights Code, R.S.O. 1990, c. H.19. Among the remedies ordered was that the respondent “pay to the applicant an amount equal to the difference between the applicant’s actual earnings, and the amount she would have earned working full-time, for the period from May 12, 2010, until the date she began her pregnancy leave, less applicable statutory deductions, and subject to mitigation, if any, by the applicant.” I remained seized to deal with any issues arising from implementing the decision.
2By letter dated November 13, 2012, the applicant’s representative has advised that a dispute has arisen over the proper amount to be paid the applicant. It appears that the respondent argues that the applicant’s hours would have been reduced for about three months of the period at issue. The applicant disagrees.
3Evidence at the hearing was that the applicant was working 40 hours per week before moving to part-time status. However, I was unable to quantify her losses from May 12, 2010 until the time she began her pregnancy leave because there was evidence that during this period she worked an unspecified number of extra shifts in addition to the eight hours per week that she was scheduled to work as a part-time employee.
4The applicant’s losses should be calculated based on the assumption that she would have worked 40 hours per week as a full-time employee, unless the respondent can establish otherwise. If the respondent wishes to dispute that the applicant would have worked 40 hours throughout the period, it must produce to the Tribunal and to the applicant, within 14 days of this direction, schedules and payroll information for all its full-time employees for the months in 2010 from May to October, inclusive. If the respondent wishes to black out the employee names on the payroll information, it may do so.
5The respondent must also provide, to the Tribunal and to the applicant, documentation establishing how many hours the applicant worked from May 12, 2010, until she began her pregnancy leave.
6It appears there may be a dispute over whether the applicant is entitled to statutory holiday pay for the period at issue. The respondent is ordered to pay the applicant for each public holiday during the period as if she had worked for the four weeks prior to the holiday. In addition, if the respondent paid holiday pay to employees who did not work on the August Civic Holiday, the applicant must be paid on the same basis.
7The respondent is further ordered to add 4 per cent to the amount owing, for vacation pay during the period.
8The applicant is ordered to advise the respondent within 14 days, if she has not already done so, whether she earned any employment income during the period at issue.
9As per the Decision of September 18, 2012, interest at the rate of 2 per cent applies to all amounts not paid within 30 days after September 18, 2012.
10I will remain seized in the event that the parties cannot reach an agreement on the correct amount.
Dated at Toronto, this 22nd day of November, 2012.
”signed by”
Lorne Slotnick
Member