Dare Foods Limited v. Bakery, Confectionery & Tobacco Workers International Union, Local 264, 1993 CanLII 5425

0213-91 Dare Foods Limited, Applicant v. Bakery, Confectionery & Tobacco Workers International Union, Local 264, Respondent

Before : Janis Sarra, Vice-Chair; Melda Okoye and Janet Slone Taylor, Members

Cite As: Dare Foods Limited (No.2) (1993), 4 P.E.R.1

Reconsideration

The Tribunal refused Dare's request for reconsideration finding that its decision was consistent with the approach to collection of job content adopted in Haldimand-Norfolk (No. 6), that the parties were aware of that decision and that, therefore, any submissions with respect to its impact could have been made at the time of hearing. Dare also asserted that there had been no evidence before the Tribunal upon which it could base its conclusions about the committee's ability to evaluate jobs. The Tribunal reviewed the evidence and concluded that there was adequate evidentiary support for its findings and, in any event, the inferences drawn by it were not determinative of the issues in dispute.

Nouvel examen

Le Tribunal ont refusé de faire droit à la demande de nouvel examen de Dare pour les motifs suivants: la décision rendue était compatible avec l'approche adoptée en matière de collecte de données sur le contenu d'un emploi dans l'affaire Haldimand- Norfolk (No. 6) et les parties connaissaient cette décision et, par conséquent, toute observation en ce qui concerne les répercussions de cette décision aurait pu être présentée à l'audience. Dare a également fait valoir que le Tribunal ne disposait d'aucune preuve sur laquelle il pouvait appuyer ses conclusions sur la capacité du comité d'évaluer les emplois. Le Tribunal a examiné les preuves présentées et a conclu qu'un nombre suffisant d'éléments de preuve justifiait sa conclusion et, qu'en tout état de cause, les déductions qu'on pouvait en tirer n'étaient pas des facteurs déterminants des points en litige.

DECISION OF JANIS SARRA, VICE-CHAIR, AND MEMBER MELDA OKOYE, APRIL 1, 1993

1This is an application by the Employer, Dare Foods Limited, seeking reconsideration of a Tribunal decision dated September 28, 1992 ("the Decision"). The Decision dealt with several issues relating to the pay equity bargaining process and comparison of job classes in dispute. In its decision, the Tribunal was unanimous in the result, but divided in its reasons. The Tribunal found that the Packer and Dough Feeder job classes were of equal or comparable value; the Packaging Machine Operator B and Janitor job classes were of equal or comparable value; and the Sample Room and Receiver job classes were of equal or comparable value. Among the remedies ordered, the Tribunal unanimously directed the parties to negotiate a pay equity adjustment schedule and to post a pay equity plan.

2The Employer has asked the Tribunal to reconsider its decision on the comparison of the job classes based upon three grounds; first, that the comparison system ought not to have been amended in that it was agreed to and its contents were not in dispute; second, that materials and documents not before the Tribunal were considered by the panel in reaching its decision; and third that there was no evidence to support a conclusion that the rating committee was able to adequately assess the male jobs but not the female jobs.

3Decisions of the Tribunal are meant to be final. Subsection 30(1) of the Pay Equity Act, R.S.O. 1990, c. P.7, specifies that the Tribunal has jurisdiction to determine all questions of fact or law, and that a decision of the Tribunal is final and binding for all purposes. The purpose of subsection 30(1) is to provide certainty and finality to the parties who have rights and obligations under the Act.

4However, in some circumstances, it may be appropriate to reconsider a decision. Subsection 30(2) provides that the Tribunal has the jurisdiction, at any time, if it considers it advisable to do so, to reconsider a decision or order made by it and to vary or revoke the decision or order. The Tribunal has previously assessed the factors it will look at in order to determine whether to exercise its discretion to reconsider a decision or order. The purpose of reconsideration is not to allow parties to re-argue their case. The Tribunal has held that the discretion to reconsider ought only to be exercised where there are compelling and extraordinary circumstances which make it appropriate to do so. [Riverdale Hospital (No. 2) (1991), 2 P.E.R. 8 at paragraph 4; Women's College Hospital (No. 2) (1990), 1 P.E.R. 178 at paragraph 7]. The Tribunal will consider the following in determining whether to exercise this discretion:

• is there evidence or legal submissions which could not have been presented by the party seeking reconsideration at the time of the hearing and which, if accepted, would be practically conclusive in changing the outcome of the case;
• since the decision, has there been a change in circumstances such that the decision should not stand;
• is the decision wrong in law?

5We do not understand the Applicant to suggest that there is a change in circumstances such that the decision should not stand. Therefore, we will not consider that basis for reconsideration further.

Is the decision wrong in law?

6The Tribunal was very clear at the outset of the hearing and specifically alerted the parties to the decision in Haldimand-Norfolk (No. 6) (1991) 2 P.E.R. 105 respecting the requirement of accuracy in the collection and recording of job information. This was in the context of several oral rulings on the scope of evidence to be allowed. Both parties acknowledged this and led extensive oral evidence on job content of all the job classes, as well as lengthy oral evidence on job content missing or inaccurate in the job fact sheets. Both parties asked the Tribunal to evaluate the job classes based upon both the job fact sheets and the oral evidence as the most accurate record of job content requirements. Moreover, the parties requested that the Tribunal apply the agreed system in a gender neutral manner to the job classes in dispute [paragraph 23 of the Decision]

7In deciding that the disputed job classes are of equal or comparable value, the Tribunal did not amend the job comparison system but rather did as the parties requested and, indeed, as the Tribunal's own jurisprudence directs. The Tribunal could not apply the system accurately or in a gender neutral matter where the evidence before it disclosed that the job information collected was not accurate. The majority ordered that the job fact sheets be revised to reflect the parties' evidence and submissions on accurate job content. In our view, this will allow the parties to meet their obligations under the Act without having to amend the evaluation manual or being required to recollect the job information. The Tribunal applied the accurate information to the existing factors in the system, to evaluate each of the job classes.

8Member Slone Taylor decided instead that the parties should negotiate the actual changes to the job fact sheets, but also applied all the job content in both the job fact sheets and oral evidence in arriving at the same point valuations for each of the female and male job classes. The Tribunal was unanimous in its finding that the job classes were of equal or comparable value. Thus, the Tribunal determined the issue in dispute between the parties and the Decision cannot be said to be wrong in law.

Is there evidence or legal submissions which could not have been presented by the party seeking reconsideration at the time of the hearing, and which, if accepted, would be practically conclusive in changing the outcome of the case?

9The Tribunal's comments at paragraphs 37 and 38 of the Decision are relied upon by the Applicant as support for its submission that the Decision considered "materials" not before the Tribunal. The comments are drawn directly from the Tribunal's decision in Haldimand-Norfolk No. 6, supra at paragraph 30. This particular decision was relied upon by both parties at the hearing. The Applicant was aware that the Tribunal would require accuracy in job content, and in fact introduced extensive evidence to support its position with respect to the actual job requirements. The Tribunal considered only materials before it at the hearing. The Applicant had the full opportunity to make submissions and lead evidence based upon the jurisprudence at the time of the hearing. The Applicant made no attempt to distinguish Haldimand-Norfolk No. 6. Thus, there is neither evidence or submissions which could not have been presented at the time of the hearing, and accordingly, we find this is not grounds for reconsideration.

10Finally, the Applicant seeks reconsideration because it submits that the Tribunal had no evidence to support the conclusions reached with respect to the committee's ability to evaluate the jobs.

11The Tribunal heard the evidence of thirteen witnesses over 15 days of hearing. The witnesses included six members of the joint committee, as well as supervisors and workers with first hand knowledge of the job requirements. Both parties led extensive evidence on the job content of each of the job classes in dispute. The witnesses called and examined were:

• Randy Breyer, employed at Dare from 1975 to 1990, member of the joint evaluation committee, with first hand knowledge of the job requirements of shipper, mixer, dough feeder, oven captain, baking foreperson and supervision of packers;
• Karl Walker, employed with Dare since 1988, member of the joint evaluation committee, with first hand experience as oven captain, dough mixer and dough feeder;
• Carol Tarbett, an employee at Dare, with 18 and a half years of first hand experience in the sample room job class;
• Mara Todic, an employee at Dare for 10 years with experience as a packer and machine operator A;
• Charles Tucker, employed with Dare for 12 and 1/2 years, with experience as a receiver, service, packer and shipper;
• Edith Baldwin, an employee of Dare between August 1990 and December 1991 working as a packing machine operator B and packer;
• John Becker, employed as a janitor with Dare since May 1989;
• Karl Thompson, employed with Dare for 17 years, including 15 years as a mechanic;
• Mike Thibodeau, former Human Resources Director and member of joint evaluation committee;
• Lois Crane, personnel supervisor, employed by Dare since 1974;
• Gregory Espinet, production manager, with experience in dough feeding and baking;
• Ron Piercey, business agent and member of the joint evaluation committee and
• Bill Leathern, former Vice President of Capital Developments for Dare, employed by Dare for 10 years until June 1990, and member of the joint evaluation committee.

12Thus the Tribunal had the benefit of an extensive amount of first hand evidence on the job fact sheets, and the actual work requirements of each of the job classes in dispute. Based upon all the evidence and submissions, the Tribunal evaluated the male job classes and unanimously agreed upon the point values. As the parties requested, the panel evaluated each job class under each factor and sub-factor contained in the system. The point values for the male job classes which the panel unanimously found, based upon all the evidence led, were the same point values as assigned by the committee to the male job classes. The Tribunal also evaluated the female job classes and unanimously agreed upon the point values.

13From the oral evidence, the majority drew inferences about the committee's ability to assess the job classes. Ms. Slone Taylor found that such an inference was not necessary. The only issue is whether the majority's findings on the ability of the committee to value the job classes gives rise to the kind of compelling and extraordinary circumstances that reconsideration ought to be granted. Regardless of the disagreement between the panel on the inference drawn, the conclusion is the same. If one were to adopt Ms. Slone Taylor's approach, that it was not necessary to draw the inference, the critical finding of equal value was the same. The Tribunal was unanimous in its finding that the female job classes were of equal or comparable value to the male job classes.

The dissent

14We have now had the opportunity to read the dissent and have no additional comment, except to correct certain statements contained in it. First, with respect to the suggestion that the majority, not the parties put the issue of the system's application in dispute, we need only quote from the actual pleadings of both parties regarding the issues in dispute:

Employer's application, issues in dispute:

"objecting to the order of the review officer that the Packer and Dough Feeder Job Classes are of equal or comparable value; that the Packaging Machine Operator B and Janitor job classes were of equal or comparable value, and that the Sample Room and Receiver job classes were of equal or comparable value."

Union's response, issues in dispute:

"The Union agrees with the results of the Review Officer in her order dated August 1, 1990. The Union states that the Company's method of applying the Aiken system is in violation of section 5 of the Act; the Union states that the Company's method of applying the Aiken plan results in gender bias in the evaluation of the female job classes in dispute, in violation of section 14(2) of the Act; the Union states that the Company's compensation practices with relation to the female job classes in dispute is in violation of section 7 of the Act.”

The issue of applying the evaluation manual in a gender neutral manner was before the Tribunal and the parties did not abandon this issue during the course of the hearing. The Employer had full notice of the issues in dispute, and full opportunity to present evidence and submissions on those issues.

15The dissent also suggests that the Tribunal erred in amending the job fact sheets because they were agreed to. The dissent fails to acknowledge that both parties agreed upon the necessity of accurate information on the job content requirements and asked the Tribunal to evaluate the jobs based upon the both the extensive oral and written evidence, including the job fact sheets, as the most accurate record of job content. This is precisely what the Tribunal did. The Employer changed its view of the value of each of the job classes in dispute, from its initial pleadings to its final submission. In the Employer's submission, this was a result of the additional oral and written evidence before the Tribunal. The only dispute which arose with respect to the requirement of accurate job information was where the oral evidence conflicted with the job fact sheet, and in this regard, the Tribunal adopted the approach suggested by the Employer.

16The dissent suggests the Tribunal erred in making findings about the committee's ability to evaluate the job classes. The majority has already pointed out that this finding was not determinative of the fundamental issue of whether the job classes in dispute were of equal or comparable value. However, in correcting statements made in the dissent, we refer to the evidence. The panel asked a number of questions of one witness, Mr. Walker, with respect to training he had received on the principles of pay equity, and whether he had received any training on gender neutrality. Counsel were given an opportunity to conduct further examination of the witness after these questions. The Employer in its final submissions also specifically relied upon the training as support for its submission that Mr. Breyer's evidence should be preferred over that of other witnesses.

17Further, when the Union objected to the Employer calling evidence of Mr. Espinet's opinion as to the appropriate value of the job classes, the Tribunal in ruled in favour of the Employer, on October 27, 1991:

"We are going to allow the questions; the weight to be given to this evidence is a question for the Tribunal to decide. We do ask Counsel for the Applicant to ground this evidence, specifically whether the witness has ever worked with this comparison system or received training on gender biased free evaluation”

18The inferences drawn by the Tribunal were based upon the oral evidence led at the hearing. Most importantly however, is that the evaluation undertaken by the Tribunal was based upon the totality of first hand evidence led, as well as submissions made by the parties. The Employer cannot now seek to bolster its case by calling evidence which was available to it at the time and which it chose not to call. The parties had full opportunity to lead evidence and make submissions with respect to the issues in this case.

19Finally, the dissent suggests that the Tribunal amended the comparison system by adding a sub-factor. The Tribunal did not amend the comparison system, but in fact did as the parties requested and used the existing system to evaluate the job classes. Where the job requirements had not been collected, the Tribunal adopted the approach suggested by both parties, and evaluated based upon the "best fit". In the case of manual dexterity required by each job class, the "best fit" in the comparison system was under the existing sub-factor of complexity and judgement. The "component "referred to, was a component of work required, the job function of manual dexterity which the Tribunal included in the existing sub-factor. Neither the sub-factor nor the system were altered, rather, the Tribunal included the work requirements in the existing sub-factor, and then assessed all of the male and female job classes in dispute to ensure that this job function was captured consistently in the existing sub-factor. We might add that this "best fit" approach was also the process which each of the parties went through in making their final submissions to the Tribunal.

Conclusion

20Thus, we are not satisfied that there was evidence or legal submissions which could not have been presented at the hearing, and which, if accepted, would be practically conclusive in changing the outcome of the case. We find also that there has been no change in circumstances such that the decision should not stand, nor are we persuaded that the decision is wrong in law. The Applicant fails to meet the test for reconsideration, and accordingly we dismiss the application.

DECISION OF MEMBER JANET SLONE TAYLOR, APRIL 1, 1993

1Dare Foods Limited ("The Employer"), has asked the Tribunal to reconsider its decision of September 28, 1992. (Dare Foods Limited (1992), 3 P.E.R. 142) The majority has refused the request on the basis that the Employer has not met the tests for reconsideration which the Tribunal has established.

2I disagree with the majority's determination. The Dare decision of September 28, 1992 was wrong in law and exceeded the Tribunal's jurisdiction to decide the issue before it. This error in law arises from the fact that the majority, in the process of reaching its conclusions, decided on matters which were not at issue between the parties and on which no evidence was led.

THE MOTION FOR RECONSIDERATION

3Dare dealt with four issues:

• Was the Bakery, Confectionery & Tobacco Workers International Union, Local 264 (the "Union") bound by the agreement on the results obtained by the rating committee with respect to the three female job classes in dispute?
• Did the Union bargain in bad faith?
• Did the Employer intimidate the Union members of the rating committee?
• What were the appropriate ratings for the female job classes and their male comparators?

4The motion for reconsideration deals with the fourth matter only. The Employer sets out the reasons why reconsideration should be granted at page 1 of its motion as follows:

That the GNCS ought not to have been amended insofar as it was an agreed to system, the contents of which were not an issue in dispute before the Tribunal.

Materials/Documents not before the Tribunal were considered by the Tribunal in reaching its decision.

There was no evidence to support the conclusion that the rating committee was able to adequately assess male jobs but not female jobs.

GROUNDS FOR RECONSIDERATION

5The Tribunal has adopted the principles which other boards and tribunals have applied to their reconsideration provisions. In two previous cases, Riverdale Hospital (No. 2) (1991), 2 P.E.R. 8, and Women's College Hospital (No. 2) (1990), 1 P. E. R. 178, the Tribunal has determined that reconsideration may be granted where there are compelling and extraordinary reasons for doing so. In Dare, the applicable tests for reconsideration are:

1. Is there evidence or legal submissions which could not have been presented at the time of the hearing, and which could make a substantial difference in the outcome of the case?
2. Is the decision wrong in law?

6I agree that the tests have been met. The majority erred in amending the job fact sheets and the factors in the evaluation system, in taking into account materials not before it, and in assessing the capacity of the rating committee to assess the female job classes in dispute.

7To the extent that these matters were put in dispute by the majority and not the parties, and may have influenced the decision which found the female and male job classes to be of equal value, that decision can now be called into question. These are indeed extraordinary and compelling reasons for granting the motion for reconsideration.

THE DECISION OF SEPTEMBER 28, 1992

8In Dare, the majority determined that the three female job classes were of equal or comparable value to the three male job classes. I agreed with this determination, but disagreed with the majority's approach. The basis for my disagreement was that:

1. The decision makes two serious errors in reaching its conclusions. The majority finds that the parties had agreed to the gender neutral job comparison system and to the successive steps in agreement could be reached on the six jobs in question. The majority then makes a number of determinations concerning gender neutrality and bias with respect to the process and the system used by the parties. Gender neutrality was not the issue before us. The parties asked the Tribunal to deal with one issue only in respect of the evaluations: are the three female job classes of equal or comparable value to the male job classes.
2. Second, the decision ignores the Tribunal's own jurisprudence. The Tribunal has previously found that parties are bound to the agreements they have made. In Gloucester (No. 1) (1991), 2 P.E.R. 52, the majority rejected the Applicant's argument that it was not bound by its agreement because the process was flawed, and concluded that the parties were bound by what they had agreed to in the successive steps undertaken to achieve pay equity as required by the Act.

9In that decision, I also noted that the majority erred in determining that the rating committee's initial evaluations were gender biased, and that the committee overlooked the range of content in female job classes by ignoring the physical effort required by the female job class of Packer. I noted that the job fact sheets had been agreed to by the parties and that "the Tribunal should not interfere in a binding agreement." (paragraph 8). I suggested that (since the majority had decided to intervene) it would have been preferable to order the parties to revise the job fact sheets themselves.

AMENDMENTS TO THE SYSTEM

The Job Fact Sheets

10In its decision of April 1, 1993, the majority has denied the motion for reconsideration for a number of reasons. First, the majority finds that the parties were aware that the job fact sheets were at issue. The majority states that:

6. The Tribunal was very clear at the outset of the hearing and specifically alerted the parties to the decision in Haldimand-Norfolk (No. 6) (1991), 2 P.E.R. 105 respecting the requirement of accuracy in the collection and recording of job information. Both parties acknowledged this by leading extensive oral evidence on job content of all the job classes, and by asking the Tribunal to compare the job classes based upon both the written and oral evidence...

11I disagree with this analysis. First, the Tribunal did not indicate to the parties at the outset that it would rely on Haldimand-Norfolk with respect to the requirements of accuracy in the job information. Rather, the Tribunal established at the outset what the parties had agreed to before the hearing began. In the hearing of July 10, 1991, (which dealt with the issue of whether or not the Union was bound by the rating committee's results,) Vice-Chair Sarra sought to confirm what had been agreed to by the Employer and Union in their negotiations. Both counsel stated that the definition of establishment, the job fact sheets, the composition of the rating committee, and the job classes, had been agreed to. Although the Union had initially raised the choice of the plan in its pleadings, Counsel for the Union, Mr. Hanson, stated that the issue of the choice of the plan no longer existed, but only the question of its application in arriving at the final point ratings. He stated clearly that there was no dispute over the Aiken evaluation system, in response to a question from Vice-Chair Sarra.

The System

12A second reason for refusing the Employer's motion given by the majority is that it did not amend the job evaluation system.

13In its motion for reconsideration, the Employer points out at page 2 that:

The decision itself identifies the agreement of the parties that the contents of the GNCS were not "an issue". Indeed, no submission was made by either of the parties to the hearing to the contrary.

In this context, paragraph 3 of the decision provides in part that,

"both parties agreed at the hearing that gender neutrality of the system chosen was not an issue before the Tribunal.”

and at paragraph 23,

The parties agreed upon the evaluation manual of the comparison system which sets out the subfactors and establishes weighting of those subfactors. Given the parties' submissions that they met the requirements of the Act, the Tribunal did not intervene to assess the gender neutrality of the system.

Notwithstanding the above, paragraph 37 of the decision seeks to add components to the agreed to subfactors thereby altering the valuation of the position of packer and packaging machine operator.

14The majority denies that it had amended the job comparison system. Their explanation for this action, at paragraph 7, is that:

In deciding that the disputed job classes are of equal or comparable value, the Tribunal did not amend the job comparison system but rather did as the parties requested, and indeed, as the Tribunal's own jurisprudence directs. The Tribunal could not apply the system accurately or in a gender neutral manner where the evidence before it disclosed that the job information collected was not accurate ... Thus, the Tribunal determined the issue in dispute between the parties and the Decision cannot be said to be wrong in law.

15The majority in Dare clearly state at paragraph 37 that the system has been amended:

As a result we have added a component to the complexity/judgement sub-factor at grade 2 .... As the Tribunal noted in Haldimand-Norfolk (No. 6) we will determine whether a comparison system will capture the value of work in female job classes. (emphasis added)

16The majority added that component after determining that this system was not an issue, had been agreed to by the parties, and there had been no evidence led to assess the system's gender neutrality. The explanation now given for this amendment neither explains or justifies it.

17The majority in Dare noted at paragraph 37 that it had applied the new subfactor in assessing the skills of the male job classes. It is not clear that they in fact did so. For example, the physical dexterity of the dough feeder in removing cookies from the moving oven band for inspection, or of the janitor in disassembling equipment for cleaning, or the receiver in operating a towmotor in a confined space would all seem to qualify for consideration in the added subfactor.

18The consequences of amending the plan are serious. The added subfactor may have been applied only to the three female job classes. In any case, the three female job classes in dispute have been evaluated and rated according to a different comparision system than that used for the other sixteen job classes in the bargaining unit. It is difficult to understand how pay equity could be either achieved or maintained in these circumstances.

19At paragraph 38 of Dare the majority addresses a second method for evaluating the female job classes (in addition to amending the plan).

However, if we are to accept that the value accorded to the male job classes by the committee illustrates agreement of the parties as to the value of physical and mental effort to this organization, our role is to ensure this value is applied consistently without gender bias.

20This method is the appropriate one for the Tribunal to use in this matter. The consistent and gender neutral evaluation of the job classes was indeed the issue which the parties put before the Tribunal, and the evidence and submissions of the parties were directed toward this end. I do not agree that the Tribunal could not have completed its evaluation of the jobs in a consistent and gender neutral manner without amending the job fact sheets or the plan. It was possible to do so by simply applying the subfactor values of the agreed to comparison system equally to the male and female job classes, using the information contained in the job fact sheets, and the oral evidence which explained or amplified it. [It is unclear to me how Vice-Chair Sarra arrived at her conclusion in paragraph 8 as to what information I used in evaluating the jobs.]

MATERIALS/DOCUMENTS NOT BEFORE THE TRIBUNAL

21The Employer has objected to the use of materials or documents that were not before the Tribunal in evidence. In particular, it cites the majority's review of "women's work" and Pay Equity office guidelines. The Employer points out at page 4 of the motion for reconsideration that:

In this context, neither party submitted evidence or made submissions with respect to what type of women's work or effort had been historically overlooked. To the extent that no evidence was before the Tribunal and insofar as the Respondent (sic) did not have an opportunity to address this matter through its evidence or argument, it ought not to have been a basis upon which a decision was made.

22In response to this objection, the majority states at paragraph 9 that:

The Tribunal's comments at paragraph 37 and 38 of the Decision are relied upon by the Applicant as support for its submission that the Decision considered materials not before the Tribunal. The comments are drawn directly from the Tribunal's decision in Haldimand-Norfolk, supra at paragraph 30. This particular decision was contained in the Respondent's casebook and was relied upon the parties at the hearing. The Applicant was aware that the Tribunal would require accuracy in job content and was specifically aware of the Tribunal's findings in Haldimand-Norfolk, supra. The Applicant had the opportunity to make submissions and lead evidence based upon our jurisprudence at the time of the hearing. Thus, there is neither evidence or submissions which could not have been presented at the time of the hearing, and accordingly, we find this is not grounds for reconsideration.

23I dispute this explanation and analysis as well. The Haldimand-Norfolk decision was indeed submitted by the Union, with respect to the issues of what agreements the parties were bound by and the claim by the Employer that the Union had negotiated in bad faith. Neither counsel relied upon or addressed the question of the accuracy of the job content or the gender neutrality of the evaluation system, because they had previously agreed that these issues were not in dispute and were not before the Tribunal.

24The Employer thus had no opportunity to make submissions and lead evidence on these matters, since it was not aware that these matters would be dealt with at the hearing. This point, is in fact, the very basis for the motion for reconsideration.

THE RATING COMMITTEE ASSESSMENT OF THE JOB CLASSES

25The Employer has also objected to the majority's comments concerning their conclusion that the rating committee was able to adequately assess the male job classes but not the female job classes. The Employer has concluded that the Tribunal did not evaluate the male job classes, stating at page 5 of its motion for reconsideration that "The submission of both parties to the Tribunal was for the Tribunal to evaluate the jobs using the agreed to GNCS."

26Counsel for the Employer points out the reason why the Tribunal could not and should not have taken this determination into account in reaching its decision. These can be summarized as follows:

• there was no evidence that 6 of the 12 committee members had any first-hand knowledge of the jobs in question;
• the only evidence concerning the committee's knowledge of the jobs of Packer and Packaging Machine Operator B was that one committee member had performed the Packer job, two members had supervised the packaging area, and one committee member had studied the job (in an efficiency study performed for the production area of the plant);
• one committee member had performed the job of Packaging Machine Operator B, two committee members supervised that area, and one committee member had studied the job;
• one committee member had performed the job of Receiver, one committee member had studied the job, no committee members had supervised the job;
• one committee member had performed the Janitor job, and one member had supervised and studied the job;
• two members had performed the Dough Feeder job, one committee member had supervised the department in which the job was located, and had studied the job.

27Counsel concluded that the only evidence before the Tribunal was that there was no difference in the Committee's first-hand knowledge of the male and female job classes (with the exclusion of the Sample Room job). He further noted that there was no evidence that committee members used their job knowledge differently for the male and female job classes, since the Union did not call any evidence from its female committee members. Finally, he stated that there was no evidence that there were differences in the rating process because both female and male job incumbents were required to attend the committee equally, to supplement the job fact sheets.

28I believe that the Employer is wrong in concluding that the Tribunal did not assess the male job classes. The majority has stated, at paragraph 22 of Dare, that it did evaluate the job classes in dispute. I do agree, however, that the majority had no basis for its conclusion, at paragraph 21, that "the Committee was able to adequately assess the work of the male job classes despite the inaccurate job fact sheets, because they knew the male jobs from first hand knowledge and applied that information in their valuing of the jobs."

29I dispute the majority's claim that it had grounds and evidence on which to base its conclusions concerning the knowledge of the rating committee.

30The majority responds to the Employer's claim that it did not have the evidence to reach conclusions concerning the rating committee's knowledge by stating that it had relied on the evidence of the thirteen witnesses including members of the joint committee, and that both parties led extensive evidence on the job content of each of the job classes in dispute.

31The fact that evidence was led on the job content cannot be relied upon by the majority in reaching conclusions concerning the committee's ability to evaluate the jobs. The Tribunal heard no evidence on the workings of the committee, or what was in the minds of the members as they evaluated the jobs. We did hear considerable evidence concerning the content of the jobs in question, which amplified and explained the job fact sheets. That evidence was sufficient for the Tribunal to determine the issue before it.

CONCLUSION

32The motion for reconsideration should have been granted, on the grounds that the majority erred in law and exceeded its jurisdiction in arriving at its determination.

33The majority was wrong in law by reaching its conclusion through an amendment of the job fact sheets and the agreed to evaluation system and reaching a conclusion concerning the knowledge of the rating committee, without evidence and indeed, without the knowledge that these matters were at issue.

34It is impossible to determine what impact the majority's approach had, or if the majority might have reached a different decision if they had not raised and then dealt with these issues. Since the majority itself raised these issues, and has stated that it will not reconsider, it is a matter of fairness that the Employer now be given the opportunity to address them.

35The Employer has requested in remedy that the Tribunal conclude that the rating committee's findings for the job classes in dispute, with the exclusion of the job class of Sample Room, be accepted. In the alternative, the Employer has requested the opportunity to call evidence and make submissions on this aspect of the decision.

36I believe that the most appropriate remedy would be to set aside the decision of September 28, 1991, which is seriously flawed. Dare should be reheard.

37However, an alternative would be to require the Applicant to inform the Tribunal as to what evidence and submissions it would wish to make if reconsideration were granted. The Tribunal simply does not know what evidence either party might have led or what submissions they might have made if they had known the breadth of the issues the majority decided on. I would therefore order that the Employer inform the Tribunal as to what further evidence and submissions it would make which might persuade the Tribunal to reach a different result. The Tribunal could then determine if such evidence and submissions would have a potential impact on its determination.

ADDENDUM OF MEMBER MELDA OKOYE, APRIL 1, 1993

1While I concur completely with the majority, I wish to add the following comments concerning the dissent.

2At paragraph 12 of Ms. Slone Taylor's decision she states "Counsel for the Union, Mr. Hanson, stated that the issue of the choice of the plan no longer existed, but only the question of its application in arriving at the final point of ratings." Although counsel for the Union did state that there was no dispute over the selection of the Aiken evaluation system, he went on to say "I am disputing the plan was implemented as there was no agreement”. This fuller statement by Mr. Hanson clarifies that the dispute between the parties concerned the implementation of the system.

3I disagree with Ms. Slone Taylor in paragraph 32 of her decision where she states that "[t]he Tribunal heard no evidence on the workings of the committee, or what was in the minds of the members as they evaluated the jobs". Much evidence was led on this issue by counsels for both parties. The majority refers to this briefly in paragraph no. 16 in relation to training. Mr. Bill Leathern, former Vice-President of Dare, stated that "uncertainty ran through the three days. We simply did not know where it was taking us. It was very suspicious. There were disputes back and forth." Mr. Leathern acknowledged that there was difficulty at first; they were afraid of the procedure and could not understand, until actually into it. He went on to say "there were concerns from both sides because we did not known where we were going, either side".

4Ms. Slone Taylor concludes by supporting the request for reconsideration. However, in the decision of September 28, 1992 all three members of the panel agreed on the outcome. Thus, it is my view that any new evidence presented would not go to challenging the conclusions reached by the Tribunal on the values to be given to the jobs in dispute.