Reduction of compensation prohibited
(9) (1) An employer shall not reduce the compensation payable to any employee or reduce the rate of compensation for any position in order to achieve pay equity.
Glengarry Memorial Hospital v. Ontario Nurses’ Association, 1991 CanLII 4447 (ON PEHT) 1991-06-06 — The Tribunal refused a proposition by the employer, who argued that the health care aide positions comprising the job classes were causal because employees were dispatched inconsistently. At para. 12, the Tribunal considers the Hospital’s conduct and finds that differential treatment wherein male comparator job classes did not receive salary increases with other non-union salaries had the effect of “artificially holding back” the nurses’ job rate and thus violated s. 9(1).
CUPE, Local 1623 v. Greater Sudbury Regional Hospital, 2005 CanLII 60099 (ON PEHT) 2005-07-07 — The Tribunal refused an application from a Union that alleged the employer contravened section 9(1) of the Act through its use of red- circling. At para. 59, the Tribunal emphasized the language contained in 9(1), ‘to achieve pay equity’. This section of the Act prohibits parties from reducing the compensation of a male job class, but not increasing the compensation of a similarly valued female job class in order to achieve pay equity.
Call-A-Service Inc v An Anonymous Employee, 2008 CanLII 88827 (ON PEHT) 2008-04-28 — The Tribunal held that that an employer contravened section 7(1) of the Act by introducing salary scales that were inconsistent with the Act, after the plan had been approved. Specifically, section 9(1) prohibits an employer from setting salary scales below the pay equity adjusted wage rate or the pay equity job rate. When an employer sets steps incorrectly, by setting steps below the pay equity job rate, a wage gap may be created.
Intimidation prohibited
(2) No employer, employee or bargaining agent and no one acting on behalf of an employer, employee or bargaining agent shall intimidate, coerce or penalize, or discriminate against, a person,
(a) because the person may participate, or is participating, in a proceeding under this Act;
(b) because the person has made, or may make, a disclosure required in a proceeding under this Act;
(c) because the person is exercising, or may exercise, any right under this Act; or
(d) because the person has acted or may act in compliance with this Act, the regulations or an order made under this Act or has sought or may seek the enforcement of this Act, the regulations or an order made under this Act.
Alzheimer Society of Chatham-Kent v. Moon, 1997 CanLII 12220 (ON PEHT) 1997-12-16 — The Tribunal found that the employer contravened the Act by reducing an employee’s hours to part-time and ultimately discharging them for pay equity-related activities. The Tribunal held at para. 40 that the employer had the onus of proving they did not contravene the Act and that there was “no taint of anti-pay equity animus” in its decision to reduce the employee’s hours and ultimately discharge her.
Quach v. St. Christopher House, 2009 CanLII 51436 (ON PEHT) 2009-09 — The Tribunal refused to dismiss an employee’s application that the Act was contravened because a pay equity plan was never posted, and was “lost”. The employee also argued that she had been penalized for her pay equity complaints, but the Tribunal dismissed it as they found that she had entered into a binding settlement which precluded her right to bring this complaint.
Clow v. Peterborough (City), 1996 CanLII 8060 (ON PEHT) 1996-06-25 — The Tribunal held that an employer contravened the Act when a part-time employee was terminated for pay equity activity. The employee did not make a complaint, but section 9(2) protection is not limited to persons who file complaints. Where applicant engaged in pay equity activities and shortly thereafter terminated, onus is on the employer to demonstrate that termination was not motivated in whole or in part due to anti-pay equity animus.
Corporation du Village de Plantagenet v. Bastien, 1997 CanLII 12221 (ON PEHT) 1997-05-15 and Corporation of the Village of Plantagenet v. Bastien, 1997 CanLII 12218 (ON PEHT) 1997-08-28 — The Tribunal found that an employer penalized an employee, by dismissing her for exercising her rights under the Act. The Tribunal examined what information the employer had when it made its decision and how the decision to dismiss the applicant was made. The Tribunal found that the dismissal was motivated in part by anti-pay equity animus. They held at para. 36 that reinstatement is the remedy of choice except where the employer convinces Tribunal that the workplace environment makes reinstatement not practicable.
Farr v. Great Lakes Brick and Stone Ltd. [1994] O.P.E.D. No. 2 — The Tribunal refused to dismiss an employee’s allegations that she was terminated so that the employer could avoid making a pay equity adjustment. The Tribunal held it had jurisdiction to hear the matter and that a prima facie case for 9(2) is made out if an employee alleged that she was engaged in protected activity and also alleged that she suffered a detriment. If prima facie case is made out, the evidentiary and legal burden shifts to the employer.
Townships of Belmont and Methuen (1994), 5 P.E.R. 5 — It was established that the Applicants were laid off by the employer and that they made a complaint (i.e., the protected activity) in respect of the pay equity plan. The Tribunal found that the applicants successfully made out a prima facie case for their allegations that they were terminated for making complaints regarding the pay equity plan.
Compensation adjustments
(3) Where, to achieve pay equity, it is necessary to increase the rate of compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms. R.S.O. 1990, c. P.7, s. 9.
EA/OCT/CYW Bargaining Unit v. Brant Haldimand-Norfolk Catholic District School Board, 2009 CanLII 41201 (ON PEHT) 2009-07-31 — The Tribunal found that it was impermissible for an employee to pro-rate the pay equity adjustment made at each step of a multi-step pay grid based on the relationship between the rate of compensation and the highest possible the job rate for their job class. At paras. 5, 26-31, Tribunal clarifies that each step of multi-step pay grid must be adjusted by an equal dollar amount. Section 9(3) of the Act exists to avoid the “achievement” of notional or partial pay.
Call-A-Service Inc v An Anonymous Employee, 2008 CanLII 88827 (ON PEHT) 2008-04-28 — The Tribunal refused an application from an employer asking them to declare that pay equity had been achieved. The tribunal held that the employer’s distribution of 1% of the employer’s payroll must be done correctly. Every job class that has not achieved pay equity must receive an adjustment. Every employee in the same job class must get the same dollar adjustment.
Canadian Union of Public Employees, Local 1999 v. Lakeridge Health Corporation, 2010 CanLII 46187 (ON PEHT) 2010-08-11 — The Tribunal refused an application asking them to adjust the wage grids of female job classes to mirror those of male classes. At paras. 27-30, the Tribunal found there was no requirement to equalize wage grids between male comparators and female job classes. Section 9(3) only makes sense in a scheme where its absence would mean the only statutorily-mandated pay equity adjustment would be to the “job rate”, such that positions in the female job class that were paid below the job rate would not benefit from the “achievement” of pay equity.
