Many of our doctors have part-time and casual staff. Those of whom are in Ontario are now (rightly!) concerned about getting complaints based on pay equity under the new provisions of the Employment Standards Act.
Whichever province you are in, there are many good reasons to do performance reviews. Some have to do with documenting poor performance (playing offence, if you will). But for Ontario employers, there is a new and extremely important reason to do them: as a defence against pay equity complaints.
We have had pay equity legislation for decades to protect against wage disparity on the basis of gender (for example, a male and female receptionist could not be paid differently if they did substantially the same job). However, now employees in Ontario also cannot be paid a different “rate of pay” based on employment status (full time vs. part time, permanent vs. temporary, seasonal or casual).
The new rule does not apply if the difference is because of these:
(a) a seniority system;
(b) a merit system;
(c) a system that measures earnings by quantity or quality of production; or
(d) any other factor other than sex or employment status
Once an employee makes a complaint, the employer must increase their wage to match (it is prohibited to reduce the higher wage) or provide written reasons to justify the disparity. If an employment standards officer finds that an employer has contravened the Act, the officer may determine the amount owing to an employee as a result of the contravention and that amount will then be deemed to be unpaid wages for that employee.
In that regard, a simple performance review template, regularly completed, can be invaluable. We have provided an easy-to-use sample below for your assistance. This can be modified for your use. The idea is that you should have at least something in place to document a “merit system”.
We do not believe the “overall rating” category must necessarily be an average of the other ratings, as the importance of the different categories may not be equally weighted to you as an employer. Or perhaps the total rating might reflect an employee’s failure to comply with your Workplace Policy Manual. (For readers who are already Practice Protection PackageTM clients, the Discipline Notice form we provided in your Workplace Policy Manual can be similarly invaluable.) When completing the Performance Review form, we are of the view that you would be well advised to use the written comments section, especially if the employee has sub-par ratings. In any event, it is important to have external, legitimate criteria for differential pay rates documented.
It goes without saying (as regular readers will know) that we think this is a ridiculously cumbersome incursion into the management of a small business for already harried owners. These laws are written by people who, with all due respect, almost invariably have never run a successful business or provided good jobs for anyone. When the author was an undergraduate student at the University of Toronto, there was a food-vending truck regularly parked on St. George. Did anyone else see this? The truck had a brilliant sign emblazoned on the side: “Eat…or we both starve!” If a business is not profitable, it fails, and the jobs are gone with it.
Click here for the sample Performance Review template and good luck! We have tried to set out helpful information here, but be sure to recognize when you need legal advice specific to you situation. And then email us or call us: 905-825-2268. We are extremely proud of our outstanding and continually growing track record both in Court and in negotiations. But generally speaking, the longer you wait to contact us, the less we can improve your position.
Until next month, be careful out there!
About the Author
Founding Lawyer, MBC Legal and MBC Brokerage
find out more about the author at https://www.linkedin.com/in/marianabracic/ or visit her website at https://www.mbcbrokerage.ca/