PAY EQUITY HEARING TRIBUNAL
0732-01 Pay Equity Office/Pay Equity Commission, Applicant v. Kitchener-Waterloo Lutheran School Society/Christ Elementary Learning Centre, Respondent
Before Mary Ellen Cummings, Chair and Members Margaret Kvetan and Pauline R. Seville
Cite as Kitchener-Waterloo Lutheran School (February 12, 2002) 0732-01 (P.E.H.T.)
DECISION OF THE TRIBUNAL, FEBRUARY 12, 2002
The Pay Equity Office (“the Office”) has made a Referral to the Tribunal pursuant to section 24(5) of the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”). The Office asserts that Kitchener-Waterloo Lutheran School Society/Christ Elementary Learning Centre (“the Employer”) has not complied with the Order of a Review Officer dated September 18, 2000. The Order required the Employer to prepare, post and implement a pay equity plan, with an effective date of January 1, 1994; send the plan to former employees; pay out any adjustments within 15 days of the plan being deemed approved, in accordance with the Act; and pay interest on adjustments.
In its Referral, the Office pleaded that the Employer has not complied with the Order, despite reminders and encouragements from the Officer to do so. In the referral the Office has requested the following remedial relief:
(a) an order under subsection 25(2)(a) of the Act directing that a Review Officer prepare a pay equity plan and the Employer pay all the costs of preparing the plan, and an order under subsection 25(3) of the Act providing that the Review Officer may retain the services of such experts as the Review Officer considers necessary to prepare the pay equity plan;
(b) an order under subsection 25(2)(g) of the Act requiring the Employer to take such action or to refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances;
(c) such further and other relief as the Applicant requests and the Tribunal sees fit to grant.
- All of the remedial relief that the Office seeks is within the jurisdiction of the Tribunal to grant. However, it is not clear to the Tribunal that it has the jurisdiction to order such relief in the context of a Referral made by the Office pursuant to section 24(5) of the Act. The relevant provisions are as follows:
24(5) Where an employer or a bargaining agent fails to comply with an order under this section, a review officer may refer the matter to the Hearings Tribunal.
(5.1) The Pay Equity Office shall be deemed to be the applicant for a reference under subsection (5).
(5.2) On a reference under subsection (5), the Hearings Tribunal shall not consider the merits of the order that is the subject of the reference.
(5.3) On a reference under subsection (5), the person against whom the order was made has the burden of proving that he, she or it has complied with the order.
One view of the intention of these provisions is that they restrict the Tribunal to determining whether or not the Review Officer’s Order has been complied with, and if it concludes that there has not been compliance, for the Tribunal to make an order for compliance. The remedies requested by the Office in this Referral would require the Tribunal to do more. At a minimum, the Tribunal would have to consider whether the remedies now being sought by the Office are appropriate in the circumstances.
We note that the Employer has pleaded that the remedies sought are not appropriate. The Employer acknowledged that the pay equity plan “…is not prepared and posted but states that it has taken significant steps to comply with the Order and is in the process of completing the Plan”. Further, “the Employer undertakes to have the Pay Equity Plan completed and posted by March 31, 2002”. The Employer asserts that it is both premature and unnecessary for the Tribunal to order a Review Officer to prepare and post a plan.
It appears that the Office’s Referral to the Tribunal has had the intended effect of focusing the Employer’s attention on the need to comply with the Order. However, scheduling a hearing date is still appropriate. At the hearing, the Employer will be required to prove that it has complied with the Order. If, at that time, the Office still wishes to pursue the remedies set out in the Referral, the panel will want to hear not only why such remedies are appropriate in the circumstances, but also whether they are available in a referral by the Office made pursuant to section 24(5) of the Act.
The hearing will be held on April 19, 2002 commencing at 9:30 am at the Tribunal’s premises, 505 University Avenue, 5th Floor, Toronto, Ontario. In order for both the Tribunal and the Office to better prepare for the hearing, the Employer is directed to serve and file a report about its efforts towards compliance by no later than April 9, 2002.
Dated at Toronto this 12th day of February 2002.
Mary Ellen Cummings,
Chair
Margaret Kvetan,
Member
Pauline R. Seville,
Member