Zellers inc. v. Commission de l’équité salariale, D.T.E. 2013T-122 (CRT), December 17, 2012 decision

This matter arose out of a decision rendered by the Commission de l’équité salariale (“C.é.s.”) allowing the complaint of an employee which alleged that the employer had not complied with the Pay Equity Act (« P.E.A. ») with respect to posting results of the evaluation of maintenance of pay equity. According to the C.é.s., the method of posting used by the employer during the course of the initial posting did not comply with Article 76.3 P.E.A., which provides inter alia that the posting has to be made in prominent places easily accessible to employees”. In this case, the employer chose to post results on the company Web-site. On the actual physical premises of the outlet targeted by the complaint, the sole computer work stations available for consultation by employees were located in the offices of supervisors. In order to have access, it was necessary to notify a supervisor or to make a request with the human resources department. In the view of the C.é.s., making available posting in the officers of supervisors from the human resources department was insufficient to meet the requirements of the Act, which requires easy access to such information. 

Furthermore, the C.é.s. determined that the second posting carried out pursuant to Article 76.4 al. 2 P.E.A., was not compliant, as certain mandatory information was absent, i.e. the mention of the remedies available under the P.E.A. and the time within which they may be exercised. 

The employer, who disagreed with the findings of the C.é.s., relied upon Article 104 P.E.A. and applied to the Commission des relations du travail (« CRT ») for an order to quash the initial decision, which had ordered the employer to recommence the postings in relation to maintenance of pay equity.

After having dismissed the employer’s initial argument challenging the jurisdiction of the C.é.s., the CRT also rejected the employer’s argument that it had complied with the Act, in particular the employer’s reliance upon Article 14 P.E.A., which provides that posting may be made using an information technology-based medium”. The CRT concurred rather with the C.é.s. finding that the requirement to notify a supervisor prior to consulting the posting in his office constituted a significant interference with the exercise of the right. Moreover, having to satisfy this preliminary requirement could easily prove sufficiently intimidating to discourage the exercise of this right. It concluded thus that the posting at issue was not easily accessible” as contemplated under the P.E.A.

The CRT also upheld the C.é.s. decision with respect to the second posting, and found that the C.é.s. had jurisdiction to order the employer to recommence the posting process not only in the outlet targeted by the complaint, but also in any and all outlets of the employer, as the evidence demonstrated that the posting procedure was similar at each of the outlets of the employer. In this regard, the CRT emphasized that the C.é.s. was not restricted to examining the issue in the outlet targeted by the complaint pursuant to the Act, but was entitled to undertake its own investigations ex officio to ensure compliance with the Act.