PAY EQUITY HEARINGS TRIBUNAL
0465-93 Rosemary McGillivray, Applicant v. The Municipality of Metropolitan Toronto, Respondent, Cheryl McDonald, Respondent, Occupational Health Nurses of Metropolitan Toronto, Respondent, Jan Kutcher, Respondent and I. Mae Maracle, Respondent
0471-93 Margaret Cornell, Applicant; Nanci Wansbrough, Applicant v. The Municipality of Metropolitan Toronto, Respondent, Rosemary McGillivray, Respondent and Cheryl McDonald, Respondent
0478-93 Cheryl McDonald, Applicant v. The Municipality of Metropolitan Toronto, Respondent
Before: Mary Ellen Cummings, Vice-Chair and Members, Geri Sheedy and Charles Taccone
Cite as: Metro Toronto (03 March 1995) 0465-93; 0471-93; 0478-93 P.E.H.T.
DECISION OF THE TRIBUNAL, MARCH 3, 1995
1The Applicants have made a number of allegations about the adequacy of the pay equity plan prepared by Metro Toronto. However, the focus of the hearing has been around Metro Toronto's efforts to prepare a new pay equity plan for its non-union employees. At this time, it is not necessary to review the substance of the main matters in any more detail.
2At the commencement of the proceedings, the Applicants requested that the Tribunal order the Employer to permit them to attend the hearings with no loss of pay. A number of the Applicants are still employees of Metro Toronto, and the request was made only with respect to them. The Applicants are not seeking costs at this time, nor are they requesting that the time off without loss of pay be granted as a remedial order. The employee Respondents made the same request.
3The Applicants argued that the Pay Equity Act, R.S.O. 1990, c. P.7, as amended ("the Act") is legislation with both anti-discrimination and labour relations components. Where the employees seeking to exercise rights are not represented by a bargaining agent, as is the case here, the anti-discrimination elements take on greater importance. Counsel argued that in order for the Applicants to access their substantive rights under the Act, the Tribunal had to ensure that barriers to access were removed. In this case, requiring the Applicants to use vacation or other lieu time was a significant barrier to their participation in the hearing. In the event that the hearing is lengthy, the Applicants could suffer economic hardship, or be forced to choose not to participate. Counsel noted that other participants in the hearing are paid their regular wages when participating in the hearing.
4Counsel for the Applicants argued that our jurisdiction to make such an order is found in our right to control our own proceeding under subsection 29(2) of the Act. Counsel also argued that we should consider subsection 9(2) of the Act, which prohibits employers, among others, from penalizing a person who is participating in a hearing. Refusing to pay the regular wages of the Applicants to permit them to participate penalizes them, Counsel said.
5Ms. Shore, on behalf of the Respondent employees, echoed the views of Counsel for the Applicants and indicated that if the employees do not receive their regular wages, they may be unable to participate. She also said that holding hearings outside of normal business hours was not a practical solution because of the employees' child and elder care responsibilities.
6Counsel for the Employer argued that Metro Toronto is not preventing the employees from participating; they may use vacation or lieu time, or unpaid leave of absence. In Metro Toronto's view, the issues is not about penalizing the employees for attending, but rather, about the employees not wishing to suffer any loss. In any event, Counsel for the Employer argued, the Tribunal is without jurisdiction to make the order requested. Counsel argued that while the Tribunal may have jurisdiction to make such an order as part of a remedy, it may not do so at the start of a hearing.
7The Tribunal issued an oral ruling, denying the request of the employees. These are our reasons for decision.
8The request the employees are making is an unusual one. They are asking us to make an order requiring the employer to, in effect, fund their participation in the hearing. We understand that the employees are not asking to have their legal costs paid, but they are asking that time off without loss of pay be granted to attend the hearing.
9The issue of access to the Tribunal and to the substantive rights of the Act is significant; it is of little benefit to provide rights to non-union women under the Act, if economic hardship is a barrier to exercising those rights. However, we do not find that the Act gives the Tribunal a means to order what the employees are seeking on the facts of this case. We do not find that the ability to control our own processes can be extended to requiring an employer to fund the participation of its employees.
10It is important to note that the employees are not asking us to order the employer to fund their participation as a remedy or compensation for the Employer's breach of the Act. They are asking us to make the order before we hear evidence or make any findings on the allegations the Applicants have made. This is analogous to Hospital for Sick Children (1991), 2 P.E.R. 174, in which the Tribunal was asked by a group of employees, at the beginning of the hearing, to order the employer to fund their legal costs. That case is similar in that funding was sought before any findings had been made. At paragraph 14, the Tribunal said:
There is nothing in the Pay Equity Act nor in any other statute which authorizes the Tribunal to make an interim order for costs.
11We similarly conclude that there is no jurisdiction to make an order at the start of a hearing, requiring the employer to pay the regular wages of the employees who want to participate in the hearing.
12The Employer is not refusing to allow the employees to participate. It has suggested reasonable ways that the employees can exercise access to the Tribunal. This is not to say that there will not be any financial or other hardship; using vacation days, for example, means that the employees lose the opportunity to spend that time with family and friends. However, the alternatives offered by the employer are reasonable. We are unable to conclude that the Employer's refusal to fund the employees' participation is a breach of subsection 9(2) of the Act. We can envision circumstances in which an employer's conduct could be found to be a breach of subsection 9(2) and the Tribunal would be able to fashion a remedy to compensate for that breach, allowing employees to participate, but we do not find that conduct here.
13In the circumstances of this case, we do not find that there has been a breach of subsection 9(2), and the Tribunal is otherwise without jurisdiction to make the requested order at this time.