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The Question

I recently signed a maternity-leave cover contract. When I started at the company, I noticed that my pay is significantly lower than the person’s pay I’m replacing for nine months. Is this legal? I am doing the same work as they would do. Is this discrimination?

The First Answer

Zuleika Sgro, CHRL, vice-president of people, Saje Natural Wellness, Vancouver

Great question. To help level set, it is not abnormal for the same roles to be paid different amounts. There are typically a number of factors that go into a person’s pay such as length of service, years of relevant experience, performance, if you are a public/private company etc. With that said, generally companies should have a reasonable range of pay equity for similar roles. My recommendation is to speak to your manager and/or your HR team about the compensation philosophy/policy at your workplace. I would recommend you approach this with curiosity and an open mind, considering some of the factors above versus comparing yourself to another person’s pay so both you and your employer can remain neutral and productive in your conversations. I assume you also accepted the role at a certain rate of pay in line with your expectations, so I would also recommend you ask questions about compensation upfront so you can feel clear going into any new role. I hope this helps and wish you the best in your conversations.

The Second Answer

Matt Lalande, founder, Lalande Employment Lawyers, Hamilton

On the facts provided it does not sound like this is a discrimination issue. Federal and Provincial Human Rights legislation protects people from discrimination in terms of employment because of age, race, religion, gender, place of origin, sexual orientation, among other things. Now, if you believe that you’re receiving a substantially lowered rate of pay which may be related to discrimination on any of these grounds, then yes, there could be a problem. For example, it’s both illegal and discriminatory for employers to pay employees different on the basis of sex. This might be an issue if you are a female and the person you are replacing is a male who is going on parental leave – which does not seem to be the case here.

Leaving aside the issue of discrimination, the ESA prior to Bill 148 mandated that employers pay women and men performing similar work equally. Ontario Bill 148’s Equal Pay for Equal Work expanded gender pay equity to pay equity on the basis of “employment status” meaning that employers were not able to provide different rates of pay based on employment status (part-time, full-time, seasonal, casual, temporary). Therefore, if you were a temporary employee performing substantially the same kind of work in the same establishment, you were not to be paid less than the person you were replacing. Ontario’s recent Bill 47 repealed Equal pay for Equal Work relating to “employment status” – meaning that employees are no longer be entitled to equal pay for equal work based on a difference of employment status (meaning if you were casual or temporary). It is not against the law to pay you, as a temporary worker, less than the full-time worker you are replacing. Regardless of the ESA changes and to answer the question, I do not see a discrimination issue.

Editor’s note: This story has been updated to reflect the following clarification: Ontario’s recent Bill 47 repealed Bill 148’s Equal Pay for Equal Work, meaning that as of 2019, it is no longer illegal for an employer to pay a temporary employee less than a regular employee for doing substantially the same work.

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