Pay Equity Office v. Excel Employment International Limited
PEHT Case No: 3483-14-PE
Pay Equity Office, Applicant v Excel Employment International Limited, Respondent
PEHT Case No: 3768-14-PE
Excel Employment International Limited, Applicant
BEFORE: Patrick Kelly, Vice-Chair, and Members Carol Phillips and Carla Zabek
DECISION OF THE TRIBUNAL: July 8, 2015
Decision
[1]. Tribunal Case No. 3768-14-PE is an application under subsection 24(6) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended ("the Act") in which the applicant employer, Excel Employment International Limited ("Excel") takes issue with an Order dated February 4, 2015 ("the Order"). We shall refer to it as "the Excel application".
[2]. Tribunal Case No. 3483-14-PE is a reference under subsection 24(5.2) of the Act, in which the Pay Equity Office ("the PEO") seeks enforcement of the Order. We shall refer to it as "the PEO application".
[3]. In a decision of the Tribunal (differently constituted) dated June 5, 2015 ("the Decision"), the PEO application was held in abeyance pending determination of the Excel application. At paragraphs 4 through 9, the Tribunal stated:
As I understand Excel’s position, it contends that since its incorporation in 2008 it has never employed more than ten employees and is therefore not subject to the Act.
The Order was issued as a result of an audit, not as a result of an individual complaint. Accordingly, the application was not delivered to any employees of Excel.
Before the Excel application is processed further, including the scheduling of a hearing, Excel must bring notice of the application to its employees. Accordingly, it is directed forthwith to post a copy or copies of the Order, the Excel application and this decision in a location or locations in the workplace where they are likely to come to the attention of Excel’s employees. These copies are to remain posted until July 3, 2015. Furthermore, Excel is directed to inform the Tribunal in writing, no later than June 10, 2015 that it has complied with the direction to post, and to indicate the time and date on which it posted the materials in the workplace.
Any individual who wishes to participate in the Excel application must file a response in accordance with the Tribunal’s Rules of Practice by no later than July 3, 2015.
Following timely receipt of Excel’s confirmation of posting, this matter may be processed in the normal course.
Should Excel fail to comply with any of the directions contained in this decision, the application may be terminated without further notice.
[4]. The Tribunal has not received a confirmation of posting from Excel in response to the Decision. The Tribunal cannot be satisfied that employees of Excel have been given notice of the Excel application. Therefore, in accordance with paragraph 9 of the Decision, the Excel application is hereby terminated.
[5]. This leaves remaining the PEO application. Subsection 24(5.2) states that, on a reference under subsection 24(5), the Tribunal shall not consider the merits of the order that is the subject of the reference. The only issue, therefore, in a reference to the Tribunal is whether or not there has been compliance with an order.
[6]. Excel never claimed to have complied with the Order. Excel’s defense to the Order is that, as an employer with ten or fewer employees, it was not subject to the Act, and therefore not obligated to comply with the Order.
[7]. In these circumstances, the PEO appears to be entitled to the remedies it requested in Schedule C of the PEO application. Excel shall have until July 17, 2015 to provide the Tribunal and the PEO with any written submissions it may wish to make concerning why the Tribunal should not grant the remedies requested in the PEO application. Should Excel fail to file timely submissions in response to this decision, the Tribunal will issue a further decision granting the requested remedies in the PEO application.
Dated at Toronto, Ontario this 8th day of July, 2015.
"Patrick Kelly" Patrick Kelly, Vice-Chair
"Carol Phillips" Carol Phillips, Member
"Carla Zabek" Carla Zabek, Member