Alzheimer Society of Chatham-Kent v. Tula Moon, 1997 CanLII 12220

PAY EQUITY HEARING TRIBUNAL

0551-95 Alzheimer Society of Chatham-Kent, Applicant v. Tula Moon, Respondent

Before: Sri-Guggan Sri-Skanda-Rajah, Vice Chair, and Members Geri Sheedy and Charles Taccone

Appearances: Stephen J. Fuerth for the Applicant; Catherine Bickley for the Respondent

Cite as: Alzheimer Society (December 16, 1997) 0551-95 (P.E.H.T.)

DECISION OF SRI-GUGGAN SRI-SKANDA-RAJAH, VICE-CHAIR AND GERI SHEEDY, MEMBER, DECEMBER 16, 1997

1. The Alzheimer Society of Chatham-Kent (the “Society”) seeks an order revoking the Review Officer’s Order and dismissing the complaint of the Respondent, Tula Moon under section 9(2) of the Pay Equity Act, R.S.O.1990 c.P7 as amended (the “Act”). The Review Officer ordered the Society to reinstate Ms Moon into her former position at the Society on a full-time basis and to compensate her for all lost wages with interest.

THE UNCONTESTED FACTS

2. During the course of the evidence it became apparent that the parties were in agreement on the following facts. The Society was formed in 1986 to provide services to the community. Ms Moon began working for the Society as the Office Facilitator in October 1986 on a part-time basis. In October 1987 Ms Moon’s job became a full-time position.

3. As the Society’s first employee, Ms Moon set up the office. She worked without remuneration from October 1986 to February 1987 while waiting for funding from the Ministry of Community and Social Services (“COMSOC”) to be approved. Once approval occurred and funding was made available, Ms Moon was reimbursed for all time worked.

4. Ms Moon’s job duties included:

scheduling appointments,

organizing meetings,

initial intake and interviewing of patients and families,

supervising office staff,

maintaining personnel records,

processing payroll and benefits, including WCB,

processing travel claims,

managing the bingo account,

balancing and maintaining five bank accounts,

reconciling bank statements,

providing receipts for donations,

banking,

preparing monthly financial reports.

answering the telephone and reception duties,

keyboarding

processing incoming mail.

5. Ms Moon reported directly to the Society’s Board of Directors (the “Board”) and assisted them with information as needed. She attended Board meetings and was the liaison between the staff and the Board. During the course of Ms Moon’s employment, the Society expanded. Additional staff was hired. Ms Joyce Rose was hired as the Society’s second employee into the position of Secretary/Newsletter Editor. At different times in 1989, the Society hired a Social Worker, a Day Away Program Co-ordinator, a Day Away Program Assistant, and other part-time staff. Eventually, the Society hired its first Executive Director. Once the Executive Director position was filled,

Ms Moon ceased providing services directly to the Board.

October of 1986, hired as an Office Facilitator on a part-time basis

October of 1987, became full-time Office Facilitator

October of 1991, became full-time Secretary/Bookkeeper

June of 1993, given 6 months’ notice of reduction to part-time

December of 1993, became part-time Secretary/Bookkeeper

March of 1994, position of Secretary/Bookkeeper was eliminated and Ms Moon was fired.

6. In late 1990 the Society hired Edward Bodner as its second Executive Director. Shortly after commencing employment, Mr. Bodner complained to the Board that there was insufficient differential between his salary and that of the senior staff at the Society. He expressed his concern at Board meetings and to the Personnel Committee (the “Committee”) of the Board and generally discussed it in the office. The minutes of the Board meetings, which were filed with us, documented Mr. Bodner’s attempts to have the Board rectify the situation. The Board was also aware that the staff had concerns about the salary grid, particularly those staff who had reached the top level on the grid. The salary grid had not been revised since 1990, which meant that no further salary increases were possible for some unless the top level was increased. The Board discussed, on several occasions, the possibility of hiring a consultant to review and make recommendations as to the salary levels and the job descriptions related to all staff positions of the agency, but, having received some quotes, determined that they could not afford the cost.

7. The Board was slow to address these concerns. Following the request from the staff to the Committee on December 8, 1992 to extend the salary maximums, the Committee decided that it would not recommend to the Board an increase to the top level of the bands. The minutes of the meeting show that Mr. Bodner was asked to obtain three or four salary comparisons for each position and to present this information at the February 1993 Personnel Committee meeting. He was asked to obtain comparisons with other similar agencies in the public sector and also in the private sector where appropriate.

8. In evidence are the comparison charts prepared by Mr. Bodner. The undated charts were reviewed at the Committee meeting on April 13, 1993. The comparison agencies included: the Alzheimer Society of Windsor-Essex County, the John Howard Society of Waterloo, the Kent County Children’s Aid Society, the VON Chatham, the John Howard Society of Windsor-Essex County and the County of Kent. In addition to these agencies, Mr. Bodner included the family business of the President of the Society, Hazzard's Farm Services, only for the comparison of the Secretary/Bookkeeper. The charts included an unsigned recommendation dated April 13, 1993. It read: “Salary grid stay as is acknowledging there are some probs w/grid. Where grid is to be adjusted jobs be re-rated by professional to recommend appropriate salary ranges.” The Committee made two recommendations to the Board: “ 1) That the salary grid remain as is at the present time however it should be noted that there are problems with it as it currently stands. 2) When the salary grids are to be adjusted, the jobs should be re-rated by a professional to recommend appropriate salary levels. The Executive Director would investigate various means of conducting such a review.”

PAY EQUITY

9. Mr. Bodner testified that his first introduction to pay equity was sometime after 1991 when the Society received a survey from the Government of Ontario, together with a request that it be completed and returned. He completed the survey and returned it to COMSOC. In responding to the survey Mr. Bodner reported that all job classes at the Society were gender-neutral, even though all positions had female incumbents, with the exception of the Executive Director. Mr. Bodner testified that the reason for this response was that it was his understanding that, if he were recruiting for the job and the gender of the applicant did not matter, the job was gender-neutral.

10. The Society dealt with COMSOC and the Ministry of Health at various times regarding pay equity. Mr. Bodner was not always clear or able to identify which Ministry he was referring to in his evidence. ( Where he has identified the Ministry it is reflected in our decision. Where he is unclear and refers simply to the Government, our decision reflects this as well.)

11. COMSOC returned the survey to the Society, changing the gender of all job classes that were submitted on the survey. All job classes at the Society, except for the position of Executive Director, were designated as female. Mr. Bodner strongly disagreed with the designation of his position as a male job class, and made his concerns known to the Board as well as to the Ministry.

12. Mr. Bodner was, therefore, surprised when, on May 13, 1993, the Society received a cheque for the first pay equity downpayment for all the positions at the Society, except for the position of the Executive Director. Included with the cheque from the Ministry of Health, in a letter dated May 4, 1993, was a notice to implement. Also included with the notice was an agreement requiring signatures from two officers of the Society to be returned to the area office. The retroactive down-

payment was to cover the period from January 1, 1992 through December 31, 1992. Payment was subject to the conditions outlined in the agreement, including a restriction that the funds were not to be used for purposes other than to increase wages for female job classes. These funds were to be recognized as a downpayment on the eventual costs of pay equity in the agency. The downpayments were not based on any job evaluation, pay equity analysis or pay equity plan, but were rather made in contemplation of pay equity adjustments that might flow from a pay equity plan, expected to follow sometime in the future. Further, the funds were to be used to raise the annual wages of employees in female job classes. Once the retroactive payment had been dispersed, the continuing downpayment was to be used to adjust the ongoing job rate of female job classes, rather than to provide a cash bonus. Despite this provision in the agreement, which was signed by President Paul Hazzard and Mr. Bodner, the Board passed a motion May 19, 1993 to pay out the money as soon as possible following the procedures in the Personnel Policies and Procedures Manual on payment of bonuses.

13. At the same meeting the proposal on the job and salary grid review from Robert Sykes and Associates was reviewed and it was noted in the minutes that the Personnel Committee members were concerned about the cost of the proposal. Mr. Hazzard testified that the Board was not at all prepared to spend $5,000.00 for a consultant. He said that the Board considered at that time eliminating the position of Secretary/Bookkeeper. When asked why this had come about, Mr. Hazzard responded that it was the ongoing pressure with the salary grids. He said that the Committee had a concern as to whether the Society needed a full-time bookkeeper. He did not recall if there had been a cost savings analysis done. The Board decided that a legal opinion was required regarding the elimination of the position. A motion was passed “that the Executive Director be authorized to spend up to $500.00 to obtain a legal opinion to facilitate office restructuring.”

14. In the Board Meeting of June 7th, 1993, the minutes show that Mr. Bodner briefed the Board on the results of the legal advice on proceeding with the elimination of the Secretary/Bookkeeper position. The advice indicated that the elimination of the position would require six months salary in lieu of notice. A discussion followed about whether to eliminate the position or cut back the hours. According to Mr. Hazzard the Board decided to reduce hours rather than to pay six months’ salary. The Board then passed the following motion, “That the Secretary/Bookkeeper position be made a part-time position at 22.5 hours per week and that this change be effected in accordance with the provisions of the Employment Standards Act”. Ms Moon was notified six months prior to the reduction in her hours. The next item on the agenda was the report from Mr. Bodner that the “ Pay Equity Payments had been made in accordance with the requirements of the legislation and Resolution # 93-041 of the Board of Directors.” The minute went on to say: “The Executive Director expressed strong concerns about the effect of the Pay Equity Downpayments on the established salary grids and the erosion of pay differentials among senior staff.” The next motion passed by the Board was: “That a $2,500.00 payment be made to the Executive Director and that this payment be made in accordance with the provisions of the policy on salary and bonus payments.” Mr. Hazzard testified that this was done to try to correct the problem created by Mr. Bodner’s position not being funded for a pay equity downpayment. The Board wanted to “ensure that the Executive Director was paid appropriately, that the gap created by pay equity was closed and that the integrity within the pay grid was maintained”.

15. Mr.Bodner testified that he had advised the Board that he had concerns about whether the Society should accept the pay equity downpayment at all, as well as his concern that his position had not been included in the downpayment. He suggested that the Board not hold up the payments but should see if they could “get out of pay equity”. He was advised by the Board to call the funder to inquire about opting out and to ask two questions: l) would the salary grids be adjusted permanently; and, 2) if the payments were cancelled or reduced, how would the salaries be maintained. Following a discussion of the pros and cons of opting out of pay equity - a discussion not included in its minutes - the Board passed a motion that the downpayment be paid out. Mr. Bodner testified that the motion was based on the recommendation he had received from the funder.

16. On May 19,1993 the funder advised Mr. Bodner to accept the downpayments and to continue to make his concerns known. He was also told that his concerns regarding his own job class were subject to appeal. He testified that he understood from the Government that, although he had been excluded in the initial pay equity survey, he would be included in the future survey. He was also told that there would be no changes in the downpayment.

17. The issue was discussed on another occasion with the Program Supervisor at the Ministry of Health where Mr. Bodner requested information concerning the appeal process to challenge the gender status of his position. In a letter dated June 16, 1993, from the Program Supervisor at the Ministry of Health, Mr. Brian Bildfell wrote: “ For the downpayment program they followed the rules of the survey and by using the gender of the incumbent in the job class to determine the gender. When you do pay equity plans as per The Act, the fine points are to be sorted out at that time.” Mr. Bodner felt that the answers from the funder were not clear. The Program Supervisor responded further that pay equity would flow through the Agency and would be paid on top of existing salaries.

18. Mr. Bodner received a letter dated May 4, 1993 from the Operations Manager, Ministry of Health, intending to clarify some of the concerns expressed by various agencies. That letter read in part:

Funds for this initiative will be funded 100%, based on the 1992 allocation. Funds for this initiative will be ongoing..... It is the intention of the Government to provide financial assistance to raise the wages of female job classes, in anticipation of the amendment to the Pay Equity Act.

19. It is clear from the correspondence that the Government intended to fund pay equity on an ongoing basis as an additional item of funding over and above current budgets. Pay equity increases, therefore, would not come out of the Society's current budget.

20. The Tribunal heard evidence from both the staff and some of the Board members about the attitude in the Society towards pay equity. There is no disagreement between the parties that Mr. Bodner was clearly opposed to not being included in the downpayment. It was agreed by the parties that he was concerned that increases accorded the female job classes at the Society would further erode, in his view, the already problematic differentials in the salary grid as it pertained to him. His feelings were shared by many of the members of the Board. Although Mr. Bodner had been complaining about the differentials for some time, no steps had been taken to address that concern until the arrival of the pay equity downpayment and its exacerbation of an already existing problem, that of adequate differentials in the salary grid. As noted above, several things happened from that time until the firing of Ms Moon and the contracting out of the bookkeeping duties.

21. At the January 19, 1994 Board meeting the Board directed Mr. Bodner to review staffing and prepare a report that would address “duties, job descriptions, and strategies to maintain reasonable salary differentials,” and that “ upon completion of the report Cathy Hoffman would be hired to restructure the salary grids.” It appears that although the report was done by Mr. Bodner, Ms Hoffman was not involved upon the completion of the report. The decision was made by the Board to eliminate Ms Moon’s position and to contract out the bookkeeping duties. We see this as a continuum.

THE CONTESTED FACTS

22. There was contested evidence with respect to Mr. Bodner’s comments to staff regarding pay equity and of his exclusion from the pay equity downpayment, and, in particular, statements allegedly directed at Ms Moon. According to Ms Moon, Mr. Bodner’s attitude towards pay equity was negative from the beginning and never changed. She testified that there were ongoing discussions about pay equity from May 1993 to March 1994. She recalled that when the downpayment cheque arrived, Mr. Bodner said that he didn’t agree with pay equity and that it would erode the salary grid.

23. Ms Moon recalled that when she told Mr. Bodner that the purpose of pay equity was to narrow the wage gap between men and women, he became angry. According to her evidence he made the following comments to her during that period of time:

• that he did not agree with pay equity;

• that there was an ongoing effort to get out of it, as well as an ongoing effort to get it for himself;

• that if he did not get it the staff should not get it;

• that he had checked with the Ministry and with other Boards as to how to get out of pay equity; and,

• that he had contacted the Ministry to ascertain if it was possible for him to also get a pay equity downpayment.

24. Ms Moon testified that Mr. Bodner had told her that Mr. Hazzard, President of the Society, also disagreed with pay equity and would write letters to complain. On January 31, 1994 Mr. Hazzard wrote to the Ministry of Health and to COMSOC, Long Term Care Division, regarding concerns about the paying of pay equity monies to agencies. The letter reads as follows:

We are in receipt of our 1994 Pay Equity Downpayment and have distributed these funds as required.

We have some concerns regarding the paying of Pay Equity monies to agencies. The Board of Directors, along with myself, are of the view that these payments are not appropriate. The Society has put together a salary grid to appropriately pay positions with salary levels corresponding to responsibilities and assigned duties and exclusive of gender considerations. While I appreciate that every effort has been taken to make these payments for pay equity on a basis that is fair and equitable, they do not take our individual situation into consideration leaving our staff with mixed signals when different positions are paid differently. I can’t but wonder what a staff member feels when the Society sets a grid in place and our government gives additional money, different amounts to different employees. What is it saying about our salary grid? Our management and authority?

I would like to express specific concerns regarding these payments to the Alzheimer Society of Chatham-Kent. The position of Executive Director for the Society does not receive any Pay Equity compensation. Until recently this position was filled by a female staff member, and we are aware of other Societies who do receive compensation for the Executive Director that have a male staff member in that position. It would seem appropriate to have this situation reassessed.

I would welcome the opportunity to discuss these issues further and I look forward to your written response.

25. Ms Moon recalled that Mr. Bodner commented directly to her that “she was making too much money to begin with”. He referred to the secretary in Mr. Hazzard’s family business as an example, saying that Mr. Hazzard had said that she only made $8.00 per hour. This in fact was not accurate, according to the amount listed in the survey charts done by Mr. Bodner. The chart shows the Secretary/Bookkeeper working for the Hazzard farm to be earning in the $11.54 to $12.60 range. As noted above in paragraph 8, Mr. Hazzard’s family farm business was used for comparison purposes only for the position of Secretary/Bookkeeper. Mr. Bodner told Ms Moon that Mr.Hazzard also felt she was too highly paid. He also pointed out to her that he had received resumes from people who were better qualified and that he could hire for less money.

26. Ms Rose testified that her only knowledge of pay equity at the Society came from Ms Moon who had made copies for her of the information received from the Government. Ms Rose testified that the information was never posted in the workplace by Mr. Bodner, although the letter from the Ministry directed that it be posted. She testified that Mr. Bodner’s attitude about pay equity was completely negative. She recalled that he had said to her:

• that pay equity was not necessary; and

• that the Society would have to redo the pay grids.

Pay equity was also discussed at a staff meeting held January 13, 1994. Ms Rose’s recollection of the comments made by Mr. Bodner regarding pay equity included:

• that they would be getting it some day;

• that the Ministry had told him that he had to accept the cheque;

• that they were all well paid;

• that pay equity would put the grid “out of whack;” and

• that they did not need pay equity.

The minutes of the staff meeting read “ PAY EQUITY---- Executive director reported that we would be getting it some day”.

27. Megan McKay, a Social Worker at the Society, testified that, although the pay equity material given to her by Ms Moon said that it was to be posted in the workplace, it had not been posted. Ms McKay took the material to Mr. Bodner and asked him if the Society’s employees would be involved. She recalled that his response was that the Society was not going to do it and that they were going to get out of it. He said that they would not do it “at our agency as it would mess up our grids.” He went on to explain to her that grids were “a lot of work and pay equity would mess them up.” These comments were made prior to the pay equity downpayment pay out.

28. Ms McKay testified that she spoke to Mr. Bodner on a further occasion after the second pay out. She had received $1,000.00 and everyone else had received $2,500.00. When she asked for an explanation, Mr. Bodner had responded that it was because she did not provide a direct service. Ms McKay testified that she had contacted the Pay Equity Commission (the “Commission”) and had been told that that was nonsense. She recalled that the Commission had consulted its case file in relation to the Society and had informed her that Mr. Bodner had submitted her hourly rate as $21.00 when it was actually $16.00. The $21.00 was the job rate at the top of the grid for a Social Worker with a Master’s degree, while she was at the bottom of the grid with a Bachelor’s degree. In further discussions with Mr. Bodner he had told her that he was writing a letter on her behalf to “fix it”. She informed him that the Commission had told her that her current rate should have been reported. He had no explanation for the error other than that was what he was supposed to do. The letter that went to the Ministry, and that Ms McKay had seen, had been written on behalf of Mr. Bodner by Mr. Hazzard but did not mention the problem with Ms McKay’s pay out. This letter, quoted above, was tendered in evidence.

29. Ms McKay also testified that at staff meetings Mr. Bodner made negative comments regarding pay equity such as: that they would get it when he got it; when he was ready; that he didn’t want to do pay equity; that he didn’t like pay equity; because he didn’t get any, that they should be grateful; and that it would narrow the differentials, that were too close already. He commented that he had a great deal of responsibility for which he was not getting paid. He stated that Elaine Utting and Tula Moon were paid too much and had been there too long. He further commented that Ms Moon was “the highest paid secretary around”. Comments such as these were made often when Mr. Bodner was handing out pay cheques. He also mentioned at some point that the Board had taken care of his problem, referring to the motion passed at the Board to pay the Executive Director $2,500.00 on each occasion that the female staff received pay equity downpayments. Ms McKay said that she had never asked further about the money owing to her as she felt that Mr.Bodner was not the kind of man you pushed. She never approached him again. When asked why, she replied that both Ms Utting and Ms Moon had received pay equity downpayments and that they had both been fired.

APPLICANT’S EVIDENCE

30. In his testimony Mr. Bodner expressed some of the concerns reported by the previous witnesses regarding pay equity and the fact that he had not received the downpayment. He said that he had expressed his concern to the Board and to the Ministry. He called other agencies to inquire about opting out of pay equity. He agreed that he had taken his concerns to the Board and that he had expected them to listen and to do something about them. He testified that he had received the same amount that the rest of the staff had received in pay equity downpayments. Unlike the female staff, however, the second payment was made a permanent addition to his salary grid. He agreed that he had told the staff that he was going to appeal his exclusion from the downpayment and that he did not agree with the way the downpayment “was done”. He recalled discussing the basic concept of pay equity with Ms Moon, but not the specifics. He testified that the Board, after reading in the press that one agency had returned the cheque to the Government saying that they didn't want anything to do with pay equity, considered just returning the cheque to the funder. He agreed that it was possible that the staff were aware, through informal discussions, that the Board did think of getting out of pay equity and that the Board was not committed to pay equity. Mr. Bodner agreed to the possibility that he had had discussions alone with Ms Moon regarding pay equity.

31. Mr. Bodner denied that he had said that Ms Moon was overpaid or that he had referred to other resumes in his possession. He said that he occasionally made joking comments regarding the salaries of the staff but that they were not meant in a vindictive manner. Mr. Bodner denied making comments to Ms Moon about receiving resumes or commenting about being able to hire more qualified women for less money. He also denied saying that Paul Hazzard felt that she was too highly paid. Mr. Bodner stated that he would never say that to a staff member. On the other hand, he did not recall the specific discussions about which we heard evidence. He said that the comments about pay equity and the salary grids were usually made following a Board meeting, but he did not recall the content of the discussions.

32. Mr. Bodner agreed that there had been no warning to Ms Moon that she was going to be fired. On the day of the Board meeting where the decision was made, Mr. Bodner asked Ms Moon if there were Record of Employment forms available. She told him that there were 2 or 3 and asked if they were for her. He assured her that they were not. When questioned by counsel for Ms Moon, he replied that he had not at that time been aware that Ms Moon was going to be fired. He said that the decision had not been discussed prior to the Board meeting. When counsel for Ms Moon mentioned that others had testified that the issue had been discussed prior to the meeting and that it had re-surfaced, he then agreed that it had re-surfaced and that it was not a new issue. In fact, Mr. Bodner prepared the reorganization report presented to the Personnel Committee, which included the recommendation to contract out the bookkeeping duties and eliminate the position of Secretary/ Bookkeeper. Therefore, contrary to his initial evidence, he was aware that Ms Moon might be terminated. The report was dealt with by the Committee at the meeting March 14,1994. The Committee did not include the recommendation to eliminate the Secretary/Bookkeeper position in its presentation to the Board on March 16, 1994. However, at the Board meeting the recommendation was added to the report in Mr. Hazzard's handwriting and was passed by the Board.

33. The introduction to the reorganization report prepared by Mr. Bodner, read as follows:

The Alzheimer Society of Chatham-Kent has had a salary grid established for some time. Some specific salaries have changed over the years but the salary grid has not

been reviewed globally. This, together with several external factors, has been responsible for the development of inequities, particularly between the Executive Director’s position and the Social Worker and the Day Away Co-Ordinator positions.

The implementation of Pay Equity Downpayments has resulted in the further erosion of intended salary differentials for the different levels of responsibility for each of the positions. The implementation of the Social Contract legislation and the resulting transfer payment reductions to our agency has meant that there are no additional funds available to address these problems. Another consideration is that it is extremely difficult to reduce salaries of incumbents by methods other than “redlining”. Redlining is the practice of identifying those salaries which are too high in relation to the others and withholding future increases until proper salary differentials are achieved. This option is not available in this instance because of the process of Long Term Care Reform and the intention of this process to reduce health care costs. It is improbable that any incremental increases for salaries will be available for the foreseeable future.[emphasis added]

The only option that appears to be effective at this point is reorganization. This reorganization will involve a review of salary grids, staffing, and job descriptions. The objectives of this organization review are as follows:

1. to ensure that quality, cost-effective programs are available to our clients;

2. to ensure that our staff complement and positions are appropriate for an agency of our size;

3. to ensure that adequate salary differentials exist to recognize the additional responsibilities of the most senior staff.

34. Included in the recommendation passed by the Board was an increase to Mr. Bodner’s salary in the amount of $8,500. This was in addition to the $2,500. amount to match the pay equity downpayments received by the female job classes, and in spite of the Social Contract restrictions on merit increases for employees earning over $30,000. per year.

35. The reorganization report included a section on proposed cost reductions titled “ADDITIONAL COST REDUCTIONS POSSIBLE”. This includes possible cost savings in the elimination of the position of the Secretary/Bookkeeper position as follows:

Salary $16,456.

Benefits 742.

Contract bookkeeping costs (estimate) 10,000.

For a potential savings of $ 7,198.

36. The benefits were included in the cost savings although Ms Moon was part-time at this time and was not entitled to benefits. The possible savings then could only be $6,456. The Board offered no evidence of actual money saved. The evidence shows that the person contracted to do the bookkeeping was now doing job functions other than just bookkeeping and was requesting additional money, as well as benefits, for the increased duties. The Society had claimed that the duties of the

position, other than the bookkeeping, would be divided between Ms Rose and the Executive Director. The request from the contract Bookkeeper shows that the job duties were not taken up by the Executive Director or other staff and continue to exist.

37. Mr. Bodner acknowledged that he had had a discussion with the staff about possible solutions to the apparent funding problem. The staff informed him that they would be willing to job share, accept unpaid leave, rotate unpaid Fridays and/or work four days a week in order to prevent anyone losing her job. The staff was, therefore, shocked when Ms Moon told them she had been fired without

notice. Although Mr. Bodner was the only liaison to the Board, he did not take these ideas to the Board or include them in his report.

38. The section in the reorganization report emphasized above in paragraph 32 clearly shows that pay equity was one of the motivations for the reorganization and the elimination of Ms Moon’s position. Also clear is the negative attitude towards pay equity on the part of the Executive Director, Mr. Bodner and the then President of the Board, Mr. Hazzard. We have heard this evidence recounted in some detail from Ms Moon, Ms Rose and Ms McKay. We found their evidence to be clear, internally consistent and consistent with each other and prefer it over Mr. Bodner’s evidence where it differs.

THE LAW

39. The Act protects the right of employees to be free from reprisals for exercising any right under the Act.

Section 9(2) of the Act reads as follows:

9.(2) Intimidation prohibited. No employer, employee or bargaining agent and no one acting on behalf of an employer, employee or bargaining agent shall intimidate, coerce or penalize, or discriminate against, a person,

(a) because the person may participate, or is participating, in a proceeding under this Act;

(b) because the person has made, or may make, a disclosure required in a proceeding under this Act;

(c) because the person is exercising, or may exercise, any right under this Act; or

(d) because the person has acted or may act in compliance with this Act, the regulations or an order made under this Act or has sought or may seek the enforcement or this Act, the regulations or an order made under this Act.

40. The Act also provides in subsection 25(7):

In a hearing before the Hearings Tribunal, a person who is alleged to have contravened subsection 9(2) has the burden of proving that he, she or it did not contravene the subsection.

41. The Tribunal has held in Peterborough(Clow)(No.3)1997, 7 P.E.R.33 (“Clow”) that it is sufficient to be a beneficiary of pay equity entitlement to qualify as excercising a right under the Act. Since there is no dispute that Ms Moon received a pay equity payment and has suffered a detriment - the reduction to part-time and then dismissal - the Society has the legal and evidentiary onus of proving that it did not contravene s.9(2) in its treatment of Ms Moon.

42. Counsel for Ms Moon argued that case law requires the employer to provide more than a seemingly plausible explanation . The Society must establish that there is no taint of anti-pay equity animus in its decision to reduce her hours or contract out the work done by Ms Moon. We agree. We adopt the test developed in Clow as appropriate to apply to the facts in this case. In Clow, the Tribunal established a test for determining whether section 9(2) had been breached. This test requires the Tribunal to analyse the reasons given for Ms Moon’s dismissal and to determine whether they are tainted by anti-pay equity animus.

43. The Tribunal went on to say at paragraph 48:

Whenever the timing of the discipline or discharge coincides with the enjoyment or seeking of a benefit, it should be scrutinized closely and false motives should not be allowed to masquerade as legitimate ones. If an employer has implemented a genuine management objective, even though it coincides with the enjoyment of a benefit, the employer will be able to discharge its onus so long as the employer’s conduct is not tainted with anti-pay equity animus.

44. Since the Society has the burden to persuade us, it must be able to clearly show that anti-pay equity animus did not taint their decision to reduce to part-time and then to eliminate the position of Secretary/Bookkeeper. The Society must convince us on a balance of probabilities that the receipt of the pay equity downpayments by Ms Moon was not a consideration when the decision was made to reduce Ms Moon to part-time and then to discharge her. Although the reasons must be legitimate, they do not necessarily have to be sound business judgements. The Tribunal does not intend to comment on the merits of an employer’s decision if it is free of anti-pay equity animus. We will look at the facts only as they pertain to motive.

ANALYSIS

45. While we accept that it is open to the Society to reduce hours and to eliminate positions to legitimately address funding concerns, the Society did not convince us that Ms Moon’s receipt of the pay equity downpayments was not part of the reason for the decisions to reduce her hours to part-time and ultimately to discharge her. We are not convinced by the rationale put forward by the Society, that is, that the grid differentials and the possibility of reduced funding were the only considerations that prompted the reduction in hours and later the elimination of Ms Moon’s position. While the Society was expecting a reduction in funding in the future, it was an expectation, not a fact. Although they were using the Bingo profits, from the capital account, to pay the rent, they were not operating at a deficit as they claimed. They had also made a decision to continue with an unfunded program at this time. The pay equity downpayments and future pay equity expenses were fully funded by the Ministry. The immediate and real concern was how pay equity affected the salary differentials in the grid. Although Mr. Bodner had expressed concern for some time, the catalyst for action by the Board was the receipt of pay equity downpayment from the Government. We do not accept that the timing was merely co-incidental, when looked at along with the comments made by Mr. Bodner to Ms Moon and other members of the staff regarding pay equity, his feelings about the concept and its unfairness and his comments about the deservedness of the increase.

46. It was clear from the evidence of Board members who were called as witnesses that their knowledge of pay equity was limited to the information presented to them by Mr. Bodner. They made no effort to inform themselves and relied on Mr. Bodner and/or Hazzard to deal with the issue. This does not, however, absolve the Board from its responsibility under the Act. We agree with the Tribunal in Clow which said at paragraph 49:

We accept that there was no evidence to support the suggestion that the City , on a corporate level, made any decisions intended to affect Mrs.Clow directly. However, the City had an obligation before implementing that recommendation to ensure that it was legitimately motivated. By implementing Mr. Clancey's recommendation, the City breached section 9(2) of the Act.

47. The facts in this case are similar in that we did not find that the Board acted with the intention to directly affect Ms Moon. However, the Board is responsible for the actions of the Executive Director who acts on its behalf. It accepted the initial recommendation to reduce Ms Moon’s hours of work and later the recommendation in the restructuring report to eliminate her position entirely, without ensuring there was no breach of the Act and without challenging him to justify his recommendation or to explore other options. The Board was on notice of Mr. Bodner’s pay equity concerns and had a duty to ensure that his recommendation was legitimately motivated.

REMEDY

48. Ms Moon asks that she be reinstated into her job. The Society does not want a remedy that would require them to re-hire Ms. Moon. The Tribunal has held that where section 9(2) has been contravened, reinstatement should be the remedy of choice. (Clow,supra). The exception to a reinstatement order is where the employer persuades the Tribunal that reinstatement is not practicable. (See also Plantagenet (May 15,1997) 0541-95 (P.E.H.T.)). We concur. The factors we propose to consider in determining whether reinstatement is appropriate are: the impact in the workplace on the employees, the change in management and the Board, the skill set required for the job and the change in the job duties, if any, where applicable.

49. Ms Moon’s competence was put into question by Mr. Bodner due to an auditor's letter submitted to Mr. Bodner following the firing of Ms Moon. Mr. Bodner alleged that the auditor's letter not only confirmed the legitimacy of firing Ms Moon but was also one of the reasons for not reinstating her. The auditor's letter noted some discrepancies in the financial statements which Mr. Bodner attributed to Ms Moon. The evidence showed, however, that the problems happened either when Ms Moon was not in attendance, were part of the job intended to be done by the Executive Director or Ms Rose, or, were, in fact, errors caused by other employees. In one instance the letter referred to a practice of rectifying errors when the bank reconciliation was done. This practice was in place over the years and Mr. Bodner was aware of it. Neither the Board or Mr. Bodner had questioned Ms Moon’s competence prior to her termination. Filed with us was the performance evaluation for Ms Moon, dated November 30,1993. In that evaluation report Ms Moon was rated as a 4 (competent) or 5 (very good) in each of the categories listed. In the written comments of the report Mr. Bodner wrote: “Tula has demonstrated her dedication to her work and her commitment to be a consistent, dependable employee”. In the area on requiring development Mr. Bodner wrote: “Tula will continue to adapt to new changes particularly when her position becomes a three day per week position.” Although the form calls for two or three areas where improvement is needed, none was recommended. Mr. Bodner went on to comment at the end of the report: “Tula has demonstrated an enthusiasm for her job and a willingness to adapt to the changing needs of our agency. She works well with other staff and encourages team work and co-operation.” The testimony of Ms Rose and Ms McKay indicated Ms Moon was a very hard working and knowledgable employee and Mr. Bodner agreed that he had had no problem with her work. This does not indicate any problems with the work that Ms Moon was performing for the Society. We conclude that the alleged problems were not any part of the reason for the elimination of the position. Further, we have no concern about her ability to perform her job. The Society has not shown any reason not to reinstate Ms Moon.

50. Mr. Bodner is no longer with the Society. Following his departure, the Board became aware that there were several problems that he had created. The Board held a meeting with the staff of the Society at which they acknowledged the previous difficulties with the Executive Director, especially in the area of communication between the staff and the Board. The Board undertook to rectify the situation. The fact that Mr. Bodner no longer works for the Society eliminates any concern we may have had regarding the workplace atmosphere. The staff testified that they had enjoyed working with Ms Moon and would welcome her back to the Society. This, in our view, eliminates the concern that the workplace environment would be an impediment to reinstatement. We are not aware of any issue that would prevent Ms Moon's reinstatement.

51. We do not agree with the Society’s position that the job has been eliminated. The job duties performed by Ms Moon still exist. Ms Rose testified that the person contracted to provide the bookkeeping services at the Society on a contract basis, was in fact, performing other duties previously done by Ms Moon. In the minutes of the Board meeting dated April 19, 1995 it was reported that the person providing the bookkeeping services was requesting an increase of $2.00 per hour as well as a request for benefits to be paid by the Society. She felt that she was doing a number of tasks over and above what she was contracted to provide. The increase requested would exceed the salary Ms Moon was receiving prior to her termination. Evidence shows that the job still exists

and we order the Society to reinstate Ms Moon into her former full-time position at the appropriate pay equity adjusted rate of pay.

LOST WAGES

52. Counsel for Ms Moon argues that she should be paid back wages from the date on which she was reduced to part-time. We agree. Ms Moon is entitled to her loss of income up to and including the date of her reinstatement. Counsel for Ms Moon argued for entitlement to interest on the outstanding amount. The Tribunal has determined that it has jurisdiction to award interest and is of the view that the amount of all compensation includes an amount equivalent to the amount Ms Moon would have been paid but for the breach. This in our view includes the payment of interest.

53. The amount ordered is subject to Ms Moon’s obligation to mitigate her damages. Counsel for Ms Moon led considerable evidence regarding Ms Moon’s extensive job search. Ms Moon was, in fact, successful during that time in finding temporary work. Ms Moon also testified that she extended her job search beyond the immediate Chatham area. We find her efforts to be more than satisfactory. Ms Moon’s earnings from her temporary employment, as well as benefits received from the Employment Insurance Commission, are to be deducted from the lost wages that we have ordered.

54. Further, Ms Moon is to be compensated for all reasonable expenses incurred as a result of her attempts to mitigate her damages. We note that Ms Moon engaged in an extensive job search and order that she be reimbursed for her costs, including postage, stationary, long distance telephone charges if any, and travel to and from interviews. Ms Moon is to provide the Society with a breakdown of these expenses which we appreciate may require an estimate of certain costs, within

two weeks of the date of this decision. Any dispute between the parties as to the total expenses owed to Ms Moon will be resolved by the Tribunal on the basis of written submissions.

55. Ms Moon is also requesting reimbursement for her legal fees paid to her initial counsel in the amount of $1,225.52. In the Clow decision, the Tribunal found that the definition of compensation in section 25(2)(e) does not extend to legal costs. We concur. We decline to award legal costs.

56. We, therefore, order the Society to pay to Ms Moon:

1 the difference in her compensation for the period that she was reduced to part-time (December 17, 1993 to March 17, 1994 inclusive) with interest;

2 compensation for all lost wages adjusted for pay equity owing from

the date that she was discharged to the date of reinstatement with interest, less any money earned in mitigation of damages or received as severance pay during that period;

3 all reasonable expenses incurred as a result of her attempts to mitigate her damages.

57. The formula for interest set out in the case of Hallowell House Ltd. [1980] 1 Can. L.R.B.R. 499 is widely used and was adopted by the Tribunal in Clow and we adopt it in this case. Thus, after a full assessment of lost wages, the amount owing is to be divided in half and the appropriate prejudgement interest rate applied to it. The rate set out in Section 127 of the Courts of Justice Act R.S.O. 1990 c. C.43 for the month of March 1994 is the rate to be applied . The Society will pay post-judgment interest in accordance with the rates established in the Courts of Justice Act, supra, from the date of this decision up to and including the date on which the back wages are paid.

58. We order the Society to meet with counsel for Ms Moon within two weeks of this decision to establish the amount owing. We remind the parties that Ms Moon is entitled to any increments her position would have received and to any pay equity adjustments she would have been entitled to but for the breach we have found herein.

REVIEW OFFICER'S ORDER

59. The Order of the Review Officer is amended in accordance with this decision.

REMAIN SEIZED

60. The Tribunal will remain seized to resolve any issue arising out of our remedial order.

DECISION OF CHARLES TACCONE, MEMBER

1. I am in agreement with the majority in finding that the Society acted with anti-pay equity animus when it terminated the employment of Ms. Tula Moon as the Secretary Bookkeeper. Where I depart from the majority is in their finding that the change of status of the Secretary Bookkeeper position from full-time to part-time was likewise motivated, in part, by the same anti-pay equity animus. I also depart from the majority in the remedy ordered.

2. Section 9(2) of the Act is very clear in its intent: no employer, employee or bargaining agent or any one acting on their behalf shall deny or in any way limit an individual’s enjoyment of a right granted by this Act. This section also explicitly combines both the "is" and the "may" (“... may participate, or is participating...” “... has made, or may make...” “... is exercising, or may exercise...” “... has acted or may act...”). Therefore, the ground for the discrimination need not necessarily be motivated by a specific "action" of the discriminated employee, for the discriminatory consequent could also find its causal antecedent in an action taken by the discriminating agent to prevent an undesired state of affairs deemed by the agent to follow unless the preventive action is taken. As a result, the causal antecedents need not necessarily be traced to the discriminated employee but could just as well reside with the employer, other employees or bargaining agent or any one acting on their behalf.

3. The above does not negate the necessity of the following:

• that the elimination, or reduction, of the enjoyment of a right or the prevention of such an enjoyment must be the sought after or desired (even if unstated) consequent - it cannot be an accidental or unintended consequent otherwise there can be no causal link, however incidental or minimally contributory; and

• that factors or conditions that intend the above end be present, discernible, and at least contributing (i.e., even if not necessary, determining, or sufficient) - irrespective of how determining, or neutral or strictly business, the causal factors or conditions may be, the presence of any factors or conditions that betray any link to the prevention or elimination of the enjoyment of the right is sufficient to make the case for discrimination.

4. The Tribunal in Peterborough (Clow) (No. 3) (1996), 7 P.E.R. 33 (“Clow”), after reviewing the jurisprudence, concluded that:

...the onus ... on the employer is to establish, first, that the reasons given for the discharge or discipline are the only reasons, and second, that these reasons are not tainted by an anti-union motive. ... Whenever the timing of the discipline or discharge coincides with the enjoyment or seeking of a benefit, it should be scrutinized closely and false motive should not be allowed to masquerade as legitimate ones. If an employer has implemented a genuine management objective, even though it coincides with the enjoyment of a benefit, the employer will able to discharge its onus so long as the employer's conduct is not tainted with anti-pay equity animus.

My reading of the above is that if an employer has implemented a genuine management objective and their conduct is not tainted with anti-pay equity animus, then it has discharged its onus.

5. To effectively discharge its evidentiary and legal onus, it is necessary but not sufficient that the employer be able to show and support the reasonableness of the decision as a business decision. It is necessary because in the absence of a reasonable business case, an adverse inference can be legitimately drawn. However, it is not sufficient because, even if a solid case can be made that the employer implemented a “genuine management objective,” if the allegation of “taint” or anti-pay equity animus cannot be repudiated, then the employer has failed to discharge its onus. Anti-pay equity animus attains primacy status as a determining or contributing causal factor, which therefore is sufficient in itself to show that the onus was not met. Shifting the focal point from a reasonable and genuine management case to discriminatory “taint” has far reaching consequences for the employer in establishing a reasonable and sufficient evidentiary base for a favourable determination.

6. The issue of taint refers to bias or discrimination which, in a s.9(2) case, manifests itself as an adverse treatment of an employee by an employer or its representative agent. Adverse treatment normally speaks to the process and the grounding or contributing motive. This, of course, refers to the foundational beliefs and propositional attitudes held by the employer and/or its representative agents and operative, either as determining or contributing causal factors, in the decision making process leading to a gender-based (specifically the gender character of the job irrespective of the gender of the actual individual) discriminatory consequence prohibited by s.9(2). Foundational beliefs and propositional attitudes under-pin human behaviours and their presence is inferred in behaviours. For the employer, what is critical here is the realization that the foundational beliefs of its representative agents can motivate consequential action or inaction that can reasonably be characterized as anti-pay equity animus and fall within the scope of s.9(2). This will render the employer accountable for the behaviours of its representative agent even if by definition the actions of the agent may be reasonably characterized as individual behaviours that have nothing to do with their official roles. Furthermore, the notion of “inferred” shifts the focus from the “action” and the agent, to the “perception” and the perceiver and to the reasonableness of the inference made. Therefore, what is under critical scrutiny is not only the decision itself, but the context and the grounds for the decision, the parties involved in the decision and what their behaviours may betray that can be characterized as bias.

7. In Clow the Tribunal stated at paragraph 34:

The Act and the receipt of a pay equity adjustment do not provide jobs with special protection when legitimate management concerns are implemented. Nor was the Act ever intended to interfere with legitimate management decisions about the structure and composition of its workforce.

Legitimacy of concerns and decision-making is the obvious ground for any defence by the employer that the action in question was, strictly speaking, a business decision consequent on business concerns and considerations at the time and untainted by any improper motivations.

8. Given the different vantage point afforded us, it may be tempting to be critical of the actual actions taken and to envision, in hindsight, a different stream of actions and reactions. But the Tribunal is not called upon to stand in the shoes of the employer and adjudicate the “reasonableness” of the business decision. Rather, the Tribunal must seek to understand whether, in the context of the moment, there was a genuine management objective, actuated through a legitimate business course of action, unmotivated by any anti-pay equity factors.

9. The decision to terminate the position of Secretary Bookkeeper was made by the Board on the basis of the Reorganization Report dated March 16,1994. Even a surface reading of the report makes it clear that pay equity was considered by the Executive Director to be a contributing factor to the salary grid problem and that the analysis of the grid centered on pay equity. This taint renders suspect any of the recommendations made in the report or decisions flowing from it. The evidence adduced by the employer makes a business case for the decision but does not, on the balance of probabilities, erase the anti-pay equity taint attaching to the report. As a result, I find myself in agreement with the majority in finding that the employer has failed to meet its onus of proving that, on the balance of probabilities, the termination of Ms Tula Moon, as Secretary Bookkeeper, was not motivated by anti-pay equity animus.

10. The majority has gone to some length to show that both Mr. Bodner and Mr. Hazzard harbored attitudes towards pay equity that were, at the very least, suspect. I am not about to challenge either the evidence relied on or the findings of the majority respecting this point. However, showing that these decision-makers harboured, and at times gave expression to these beliefs does not ipso facto show that these beliefs were in any way linked, however incidentally, to each and every decision taken or influenced by them. That the decision to change the status of the Secretary Bookkeeper from full-time to part-time was influenced by both Mr. Bodner and Mr. Hazzard is clear from the evidence. That the decision was tainted by anti-pay equity animus is not obvious from the evidence but rather inferred from the evidence. At issue here, therefore, is whether, on the balance of probabilities, the evidence is able to support such an inference.

11. The analysis that follows is grounded on the following evidence:

• That Mr. Bodner and Mr. Hazzard testified that they knew and understood that pay equity was to be funded 100% by the funder and was to be a flow-through with no impact on the budget. Both individuals also knew and understood that pay equity was here to stay.

• That the salary grid issue, expressed as inadequate salary differentials, had a longer history than pay equity at the Society. Paul Hazzard, in his evidence in chief, indicated that the salary grid problem "...had been in discussion ever since I joined (Aug '92) if not earlier." Mary Clare Latimer, member of the Board of Directors since late 1988, gave evidence that the concern over the salary grid was on-going and had preceded the arrival of Mr. Bodner.

• That, although pay equity down-payments did not have an impact on the budget of the Society, they would have an impact on the salary grid if they did not impact all the job rates equally. Given that the only job that was not awarded a down payment was the Executive Director's job, pay equity exacerbated the salary differential issue.

• That the Board's award of an “equalization payment” to the Executive Director neutralized

the impact of the pay equity down payment on the salary grid and thus kept the status quo; it did not resolve the salary grid issue that had been simmering prior to pay equity.

• That the equalization payment of $2,500 to the Executive Director's job, unlike the pay equity down payment, did have an impact on the budget of the Society.

• That, given that all the job classes at the Society, possibly including even the Executive Director's job, were female dominated job classes, the issue of systemic gender-bias in the evaluation of female work relative to male work (the defining essence of pay equity) was, at least within the Society, a moot point - job-to-job comparison between male and female dominated job classes could not be use and, as a result, redress for systemic gender-bias in pay could only obtain through an external anchorage point afforded only with Proxy.

12. It should be obvious that changing the status of the Secretary Bookkeeper from full-time to part-time could have no possible impact on the salary grid issue - the job rates of the job classes did not change nor did the salary differentials between the jobs, especially the Executive Director's salary range relative to the next in line salary ranges of the Social Worker. The following table (based on documents submitted as evidence) exemplifies the issue of salary grid differentials.

Job Title Job Rate Salary Differential

(Annualized) Relative to Ex. Dir.

Executive Director (Bachelor) $41,514 $ 0.

Social Worker (Bachelor) $34,962 $ 6,552.

DAP Co $34,889 $ 6,625.

Secretary Bookkeeper (part-time) $27,427 $14,087.

Secretary News $24,861 $16,653.

DAP Assistant (part-time) $24,861 $16,653.

Respite Worker (part-time) $24,861 $16,653.

13. Basically the argument is that the difference between salary ranges is not sufficient to recognize the "assumed" difference in value of the jobs. Although the value of the jobs was never formally determined through a proper evaluation, there was an intuitive belief that the degree of escalation from one range to the next was not steep enough. On the balance of probabilities it is most logical to assume that the concern of the Executive Director, or any other job, would be with the differential between the range they occupy and the range immediately below or above. In my view, the Secretary Bookkeeper's salary range is too far removed from the Executive Director's to warrant comparison. In any case, it is obvious that the change in status of the Secretary Bookkeeper had no impact on the salary grid or the salary differential relative to the Executive Director’s position.

14. However, changing the status of the Secretary Bookkeeper from full-time to part-time did have an impact on the budget, as did the awarding of the equalization payment ($2,500) to the Executive Director's job. Were the two connected? Could there have been a link, even an incidental one? That the two events were contiguous is given by the evidence, however, finding that they were linked takes a leap of faith that I, on the balance of probabilities, am not willing to take. The grounds for this are as follows:

• The change in status, to repeat, had no impact on the salary grid issue (the job rate, or salary range maximum, would remain the same - the reduction of hours did not reduce the job rate or hourly rate paid to the Secretary Bookkeeper) nor did it provide a budget equalization to

cover the increase in pay to the Executive Director's job (the estimated savings of the status

change was $10, 971).

• I accept that, on the balance of probabilities, the change in status of the Secretary Bookkeeper was a reorganization move that was motivated by the perceived need to improve the ratio of administrative to operation staff. The evidence indicates that the Society was concerned about increasing the number of program staff to administrative staff. Given the role of the Society (to provide assistance to their clients and their families), this is not an unreasonable objective.

• Also, I accept that the concern over running the operation, year-after-year, on a deficit and funding the deficit through a restricted account (earmarked mostly for capital expenditures)

is a reasonable concern (see table developed from the Audited Statements submitted in evidence below).

Year Ended Year Ended Year Ended Year Ended Year Ended

‘91 ‘92 ‘93 ‘94 ‘95

REVENUE $233,499 $297,954 $305,419 $330,131 $297,746

COMSOC’s portion 0.964 0.935 0.923 0.920 0.930

Fees, Interest & Sundry 0.036 0.065 0.077 0.080 0.070

EXPENDITURE $233,499 $311,400 $334,760 $372,983 $302,854

Salary & Benefits

portion 0.627 0.643 0.700 0.769 0.641

SPECIAL FUNDS (restricted funds):

Fund raising, donations,

summer work pgm,

interest, mbrshp, sundry $69,409 $56,036 $57,351 $46,026 $62,949

Bingos’ portion 0.504 0.505 0.559 0.006 0.569

Expenditures $36,381 $17,284 $12,135 $6,166 $9,454

Capital Exp. Portion 0.504 0.118 0.553 0.081 0.120

Note from audited statements - “Pursuant to municipal guidelines, the Society is restricted from utilizing bingo proceeds for expenditures other than approved capital or operating expenses.”

15. This table shows that in the fiscal years 1991 to 1995 the Society’s revenues have hovered around $300,000 of which approximately 93% have come from COMSOC. The expenditures, from 1992 on, have consistently been in excess of revenue with Salary and Benefits comprising approximately 65 to 70%. The Special Funds, restricted primarily for non-operational purposes, have ranged between $55,000 to $60,000 of which Bingo revenues comprise approximately 50 to 55%. This is the financial context within which the volunteer Board of Trustees endeavoured to provide support to clients and their families.

16. I do not concur with the majority in the remedy ordered. As stated in Clow, any entitlement must be subject to an obligation to mitigate damages and the reasonableness of the efforts to mitigate depend on circumstances such as: qualifications, experience, and area of residence. I find it difficult to believe that Ms. Moon, with well established secretarial and bookkeeping skills and extensive experience, was not more successful in her efforts to mitigate damages. Not only her skill and experience but also the area of residence (located in Chatham with relatively easy access to London, Kitchner and Waterloo) make it difficult for me to be convinced that she could not have found reasonable employment.

17. In line with Clow Ms. Moon is entitled to interest on the amounts owing to her from the date

of termination to the date of this decision; determination of the formula for calculating interest has been stated by the majority and I concur with that. She should receive compensation for lost wages, on the basis of the part-time salary at the point of termination less any mitigation earnings, severance and E.I. benefits with interest calculated in accordance with Hallowell House, plus all reasonable expenses incurred in her attempts to mitigate damages.

Dated at Toronto this 16th day of December, 1997:

Sri-Guggan Sri-Skanda-Rajah, Vice-Chair

Geri Sheedy, Member

Charles Taccone, Member