Pay equity hearings tribunaL

0763-03 Pay Equity Office, Applicant v. Precious People Place Child Care Centre Inc., Respondent

Before: Mary Ellen Cummings, Chair; Pauline R. Seville and Diane Rose Members

Appearances: Senka Dukovich, Ann Peers and Fred Berenbaum for the Applicant, Natasha Rosemary Reid and Rosa Xavier on their own behalf

Cite As: Precious People Place Child Care Centre Inc. (March 5, 2004) 0763-03 (P.E.H.T.)

decision of the tribunal, MARCH 5, 2004

Introduction

1. This Application was brought by the Pay Equity Office (“the Office” or “the PEO”) asking the Tribunal to conclude that Precious People Child Care Centre Inc. (“the employer”) has not complied with the Order of a Review Officer dated January 28, 2003. The referral is brought pursuant to section 24(5.1) of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”). The PEO asks the Tribunal to uphold the Order of the Officer.

2. The employer did not file a response, nor attend at the hearing. The Tribunal is satisfied that the employer received reasonable notice of the application and the proceeding. We continued in the employer’s absence.

3. The Tribunal is satisfied that the employer has not complied with the Officer’s January 28, 2003 Order. The employer has not prepared and posted a pay equity plan, using the proxy method of comparison, and it has not made any pay adjustments that may be required by its pay equity plan, as ordered. Ms. Reid and Ms. Xavier, who are former employees, confirmed that they are not aware of the posting of any plan nor of the payment of any adjustments.

4. The Officer required the employer to comply within 45 days. The PEO asks us to update that timetable. In addition, the Office would like the Tribunal to require the employer to pay interest on any wage adjustments, which, under the statute, the employer should have started paying in January 1994. In the alternative, the Office seeks payment of interest from the date of the hearing forward.

5. The Office sought to address the Tribunal’s concern, expressed in previous decisions, that on a referral for compliance, section 24 (5.2) contemplates that “…the Hearings Tribunal shall not consider the merits of the order that is the subject of the reference.” The Tribunal has stated that it may be inappropriate for a party to seek variance of the Order, including its remedial aspects, in a compliance referral (Kitchener-Waterloo Lutheran School (2001-02), 12 P.E.R. 112). Counsel for the PEO argued that it is entirely foreseeable that the Tribunal would order interest. The employer has consistently sought to avoid its pay equity obligations, and the processes mandated by the Act. The employer has not co-operated with the Office, and its failure to respond to the referral or to attend at the hearing are only the latest instances of its refusal to meet its legal obligations.

6. The Tribunal declines to vary the Order to award interest. First, the Office’s power to make referrals alleging non-compliance is intended to provide a speedy and effective process to bring about a final decision of the Tribunal, that can then be enforced in the courts. We risk losing that speedy avenue, if we permit parties to review any part of the Order, including the remedies. In our experience, the referral is a useful “nudge” to parties who are debating whether or not to bring an application with respect to the merits of the Order. When such an application is brought, the PEO’s referral seeking compliance is adjourned, and the workplace parties can litigate all aspects of the Order, including the remedies.

7. Of course, when Review Officers first make Orders, they can require employers to pay interest on outstanding adjustments. In a referral by the PEO alleging non-compliance, the Tribunal, if satisfied the Order had not been met, would make its own order, encompassing the Officer’s direction to pay interest. Alternatively, the Officer could make a further Order in this case, requiring the employer to pay interest. The Officer may have intended to wait and see the plan, and the adjustments required, and at that point decide whether an Order in respect of interest is appropriate.

8. A second reason for declining to make an award for interest is that the employer was never advised that the PEO was seeking an award of interest. We mean no criticism. However, while the Tribunal is prepared to proceed in the absence of a party who received reasonable notice of a claim, we risk denying natural justice to a party in permitting that claim to be amended, in the party’s absence.

9. We make the following Order:

a) Precious People Child Care Centre Inc. is directed to prepare a pay equity plan for the workplace, using the proxy method of comparison, as described in section 111.2 of the Act;

b) Precious People Child Care Centre Inc. is directed to post the pay equity plan in its workplaces, within sixty (60) days of the date of this decision;

c) Precious People Child Care Centre Inc. is directed to start making any adjustments required under the pay equity plan, retroactive to January 1, 1994, within ninety (90) days of this decision, having regard to the provisions in respect of minimum and maximum adjustments, set out in section 13 of the Act.

10. If the employer does not comply, it can expect the Office to use its broad powers, as set out in section 33, to enforce the Act.

Dated at Toronto this 5th day of March, 2004

Mary Ellen Cummings, Chair

Pauline R. Seville, Member

Diane Rose, Member