Pay Equity Commission v. Gian Daycare Limited

PAY EQUITY HEARINGS TRIBUNAL

2734-09-PE Pay Equity Commission, Applicant v. Gian Daycare Limited, and Faroogh Mahmoodi, Respondents.

BEFORE: Patrick Kelly, Vice-Chair, Margaret Kvetan and Pauline R. Seville, Members.

DECISION OF THE TRIBUNAL: July 2, 2010

1. This is a referral under subsection 24(5) of the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”).

2. The Pay Equity Office (“the Office” or “the applicant”) asserts that the responding party employer (“the employer”) has not complied with the Order issued by Review Officer Beverly Dalys (“the Officer”) on January 7, 2009 (“the Order”). The Order directed the employer to pay specified amounts to a number of individual employees.

3. The Office seeks to have the Tribunal find that the employer has not complied with the Order, and direct the employer to pay the amounts specified in the Order to the identified individuals.

4. By letter dated May 18, 2010, counsel for the Office requested that the Tribunal deal with the application, without a hearing, on the basis of the declaration and affidavit of the Officer concerning the Order. In the alternative, the Office requested that the Tribunal schedule a hearing.

5. By decision dated June 3, 2010, we directed the responding parties to respond to the request of the Office that the Tribunal deal with the application on the basis of the Officer’s declaration and affidavit and accompanying materials without a hearing. All copies of that decision sent by courier to the responding party employer, Gian Daycare Limited (“the employer”) and its two principals at their last known street addresses were returned to the Tribunal.¹ The employer (which has previously failed to participate in the Tribunal’s hearing concerning the Officer’s Order dated July 21, 2006) and its principals have not informed the Tribunal of any changes in address. Accordingly, we are satisfied that the Tribunal has made all reasonable efforts to provide the employer with notice of the decision of June 3, 2010.

6. We are satisfied, based on the declaration and affidavit of the Officer, as well as the Order and the pleadings contained in the application, that we ought to grant the relief requested by the applicant without an oral hearing.

7. Pursuant to section 24(5.3) of the Act, the employer bears the onus of establishing that it has complied with the Order. It has not demonstrated compliance. Consequently, we find that the employer has failed to comply with the Order.

8. We are satisfied that the Officer’s calculations regarding the entitlement of employees and former employees of the employer to pay equity adjustments are based upon a reasonable assessment of employee information provided to her by the employer when she met with the employer’s representative on March 16, 2005.

9. Accordingly, we order the employer, Gian Daycare Limited, to make the following payments to the following individuals:

• Amaechi, Dorothy 15,741.70

• Singh, Gian 16,011.74

• Charles, Jennilyn 607.83

• Mbaegbu, Rose 16.009.03

• Mahmoodi, Farooq 752.06

• Guevara, Maria 30.54

• Hamilton, Hazel 305.35

• Strazzeri, Angela 3,769.95

• Garg, Nina 6,740.79

• Gahite, Lina 1,106.09

• Gandhi, Sharma 4,062.37

• Elahi, Tahmina 7,378.84

• Shuhaibar, Wand 298.69

• Rayes, Amelda 679.04

• Sabah, Kazem 946.71

• Lynch, Karlene 27.91

• Ehis, Colleen 41.78

• Benjamin, Jaccida 55.83

• Akhter, Farada 174.08

• Beckles, Marcia 863.19

• Poordeh, Rokssareh 223.79

• Theenathayalan, Rany 1,818.65

• Masrur, Shahana 47.95

• Elahi, Tahmina 6,492.35

• Emeka, Uwaezuoke 31.97

• Ghazanafari, Mahsa 776.74

• Iqbal, Nafees 834.60

• Tahmina, Elahi 1,866.25

• Tiano, Moureen 604.66

• Uwaezuoke, Emeka 58.60

• Vizzini, Anna 2,875.16

• Tong, Gui Ying 5,196.36

• Birtwell, Sharon 2,439.58

• Lynn Cox, Charlene 787.23

• Rashid, Shamsun Nahar 136.05

• Wynter, Elvoseta 477.13

• Shakir, Masooma 119.28

• Huang, Gina 1,378.39

• Amina, Khatun 119.28

TOTAL 101.887.50

10. The employer is further directed to pay interest on the above payments to each individual, calculated in accordance with the provisions of the Courts of Justice Act R.S.O. 1990, c. C43, as amended, from January 7, 2009 until the date of this decision.

11. The employer is to make the above payments with interest within 30 days of the date of this decision.

Dated at Toronto this 2^nd day of July, 2010.

“Patrick Kelly”

Patrick Kelly, Vice-Chair

“Margaret Kvetan”

Margaret Kvetan, Member

“Pauline R. Seville”

Pauline R. Seville, Member

Footnotes

1. 1The application itself was successfully served by the applicant on the employer’s two principals, as were previous orders and referral applications.