PAY EQUITY HEARINGS TRIBUNAL
1812-06-PE Call-A-Service Inc./Harmony Hall Centre for Seniors, Applicant v. An Anonymous Employee, Pay Equity Commission, Respondent.
BEFORE: Patricia E. DeGuire, Former Vice-Chair, Margaret Kvetan and Pauline R. Seville, Members.
APPEARANCES: A. Wall, Counsel for Call-A-Service Inc./Harmony Hall Centre for Seniors and David Lieberman.
CITE AS: Call-A-Service Inc./Harmony Hall Centre for Seniors (No. 4) 1812-06-PE (2 December 2008) (P.E.H.T.)
RECONSIDERATION DECISION OF THE TRIBUNAL: December 2, 2008
I. INTRODUCTION/BACKGROUND
1These are the reasons and decision in the matter of the request for Reconsideration filed by Call-A-Service Inc./Harmony Hall Centre for Seniors (the “Employer”). The Employer brought an Application under subsection 25(1) of the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”) challenging a Review Officer’s Order dated March 30, 2006. In that application the Employer had asked the Tribunal to revoke the Review Officer’s order; and issue a declaration that pay equity has been achieved for the Coordinator II and Driver job classes; and award costs associated with making this Application.
2The Review Officer had concluded that the Employer had contravened subsection 7(1) of the Act, and accordingly, issued an order under subsections 24(2) and 24(3) of the Act.
3On April 28, 2008, the Tribunal issued its Decision and reasons varying the Review Officer’s order (the “Order”). The Tribunal’s Order is reproduced below:
- Accordingly, the Order is varied. The Tribunal directs the Employer to:
(a) For the purpose of information, post a copy of the August 30, 2002 deemed approved plan in the workplace within 24 hours of the date of this Decision.
(b) Provide each present and past employee a copy of this Decision and the deemed approved plan dated August 30, 2002, within 30 days of this Decision.
(c) Make retroactive pay equity adjustments of $1.36 to all past and present employees in the Casual Driver job class for all hours worked effective January 1, 1994 to current date and adjust the current job rate to $13.75 within 60 days of this Decision.
(d) Pay the $3.10 wage gap in the Team Leader job class for all hours worked from January 1, 2005 to the present. Adjust the job rate to $21.50. The adjustment must not be taken from the 1% of the Employer’s payroll for the preceding twelve-month period. Payment must be paid within 60 days of this Decision.
(e) For future pay equity adjustments, distribute the 1% of the Employer’s payroll for the preceding twelve-month period to the Coordinator I, Bus Driver and Casual Bus Driver job classes until pay equity is achieved.
(f) Provide the Review Officer, in writing, a summary statement of pay equity adjustment calculations for each affected past and current employee within 60 days of this Decision.
(g) Pre-judgement Interest should be calculated in the following manner as set out in Pay Equity Hearings Tribunal decision: Royal Crest Lifecare Group (No. 5) (November 18, 2002), at paragraph #17:
After calculating the amount owed to each employee or former employee, the amount is divided in half and the rate of interest as prescribed in section 127 of the Courts of Justice Act, R.S.O. 1990, c.C43 is to be applied from January 1, 1994, the date the pay equity adjustments should have been implemented. This is a rough and ready interest calculation, taking into account that the total amount would not have been received at once. The Ontario Gazette prescribes the rate for the first quarter of 1994 as 4.3%. Consequently, the Employer must pay interest at the rate of 4.3%, calculated on half of the amount owed to each person from January 1, 1994.
II. Request for Reconsideration
4In a letter dated May 27, 2008, the Employer asks the Tribunal for a clarification of paragraph 64(c) of its Decision. The Order is in paragraph 64. Specifically, the Employer raises two questions for clarification: Since the Tribunal found that additional pay equity increase of $1.20 to the Executive Director job class was made effective April 1, 2003, should the effective date for the corresponding retroactive pay equity increase to the Casual Driver job class not be April 1, 2003 as opposed to January 1, 1994? Since the Tribunal found that the Casual Driver job class already received a $0.16 adjustment for the same year, should not the actual retroactive adjustment to the Casual Driver job class be $1.36, less monies already paid?
III. Discussion AND DISPOSITION
5In its April 28, 2008 Decision, at paragraph 56, the Tribunal found that, “[o]n the balance, the evidence does not support the Employer’s position that the $1.20 was a merit increase or a one-time merit increase. The Employer has the onus to prove this sub-issue; it has not met that burden. Therefore, based on the evidence, the Tribunal finds that the increase of $1.20 was a pay equity increase”. That increase commenced on April 1 2003. Thus, it followed necessarily, that the Employer had failed to distribute the 1% of its payroll for the preceding twelve-month period according to subsection 13(3) of the Act.
6The January 1, 1994 date in the Order is incorrect. The correct date is April 1 2003. Accordingly, the Tribunal would reconsider paragraph 64(c) of the Order and amend it to show that the effective date for the commencement of the retroactive pay equity adjustments for the Casual Driver job class should be April 1 2003.
7Consistent with that amendment, the Tribunal amends paragraph 64(g) to show a corresponding change in the effective date of the pre-judgement interest calculation. In addition, the Tribunal amends paragraph 64(b) to ensure that affected persons are aware of and understand the effect of the Reconsideration.
8Counsel for the Employer’s second question is whether “monies already paid” to the Casual Driver job class ought to be deducted in calculating the “actual retroactive adjustment to the Casual Driver job class”. The Tribunal is aware that a pay equity adjustment of $0.16 was made to the Casual Driver job class in 2003. Nonetheless, the Tribunal has determined that the Casual Driver job class is entitled to an additional $1.20, that is, $1.36. That is consistent with its findings at paragraph 56 of its April 28, 2008 Decision that the raise, which had been given to the Executive Director job class, was a pay equity adjustment rather than a merit increase.
IV. CONCLUSION
9Having reconsidered the Employer’s counsel’s questions, for all the reasons given above, the Tribunal amends paragraph 64(c), as well paragraphs (b) and (g) of the Order of its April 28, 2008 Decision. The Tribunal’s amended Order below is now the Order that the Employer is directed to implement.
V. ORDER
10Accordingly, the Order is varied. The Tribunal directs the Employer to:
(a) For the purpose of information, post a copy of the August 30, 2002 deemed approved plan in the workplace within 24 hours of the date of this Decision.
(b) Provide each present and past employee a copy of the April 28, 2008 Decision, the deemed approved plan dated August 30, 2002 and this Reconsideration Decision, dated December 2, 2008, within 30 days of this Decision.
(c) Make retroactive pay equity adjustments of $1.36 to all past and present employees in the Casual Driver job class for all hours worked effective April 1, 2003 to current date, less any monies already paid, and adjust the current job rate to $13.75 within 60 days of this Decision.
(d) Pay the $3.10 wage gap in the Team Leader job class for all hours worked from January 1, 2005 to the present. Adjust the job rate to $21.50. The adjustment must not be taken from the 1% of the Employer’s payroll for the preceding twelve-month period. Payment must be paid within 60 days of this Decision.
(e) For future pay equity adjustments, distribute the 1% of the Employer’s payroll for the preceding twelve-month period to the Coordinator I, Bus Driver and Casual Bus Driver job classes until pay equity is achieved.
(f) Provide the Review Officer, in writing, a summary statement of pay equity adjustment calculations for each affected past and current employee within 60 days of this Decision.
(g) Pre-judgement Interest should be calculated in the following manner as set out in Pay Equity Hearings Tribunal decision: Royal Crest Lifecare Group (No. 5) (November 18, 2002), at paragraph #17:
After calculating the amount owed to each employee or former employee, the amount is divided in half and the rate of interest as prescribed in section 127 of the Courts of Justice Act, R.S.O. 1990, c.C43 is to be applied from the date the pay equity adjustments should have been implemented. This is a rough and ready interest calculation, taking into account that the total amount would not have been received at once. The Ontario Gazette prescribes the rate for the first quarter of 1994 as 4.3%. Consequently, the Employer must pay interest at the rate of 4.3%, calculated on half of the amount owed to each person from the relevant date.
Dated at Toronto this 2nd day of December, 2008.
“Patricia E. DeGuire”______
Patricia E. DeGuire, Former Vice-Chair
“Margaret Kvetan”___________
Margaret Kvetan, Member
“Pauline R. Seville”__________
Pauline R. Seville, Member