Costco’s move to dismiss ESA application from former worker alleging unequal pay, retaliation rejected by Ontario Labour Relations Board

A Costco Wholesale retail outlet in Sterling, Va. Photo: Grant Beirute/Unsplash

The Ontario Labour Relations Board (OLRB) has rejected a move by Costco Wholesale Canada to dismiss an application from a former worker in advance of a scheduled hearing.

The former employee filed an application for review of a refusal by an Employment Standards Officer (ESO) regarding allegations of unequal pay, wrongful termination, and retaliation. A hearing on the matter was set for April 12, 2024.

The OLRB has decided not only to proceed with the hearing but also to offer guidance aimed at streamlining the adjudication process.

While Costco argued for dismissal on grounds of insufficient evidence and legal basis, the Board highlighted the statutory right of employees to seek a review of ESO decisions, emphasizing a hearing de novo approach. This means the Board will re-examine the case without deference to the ESO’s initial findings, leveraging its authority to issue orders as if it were the original adjudicator.

The Board’s directive also narrows the scope of the upcoming hearing, focusing on the validity of termination and severance pay, compliance with the Equal Pay for Equal Work section, and the substantiation of reprisal claims as per section 74 of the ESA.

It also noted that the worker’s application contains a number of requests that are outside of its jurisdiction.

“The Board cannot, for example, independently investigate the responding party’s disciplinary practices, one of the remedies sought in the application,” it said.

“Furthermore, the applicant’s disciplinary history or alleged improper treatment during her medical leave of absence does not appear to be relevant in the context of this application.  Evidence that is not relevant to the application will not be entertained at the scheduled hearing.”

For more information, see Kamilia Hanna v Costco Wholesale Canada Ltd., 2024 CanLII 5428 (ON LRB).