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 (21 March 1995) 0465‑93; 0471‑93; 0478‑93 P.E.H.T.
DECISION OF THE TRIBUNAL, MARCH 21, 1995
In an oral ruling on November 3, 1994, we ordered Metro Toronto to post its pay equity plan in January of 1995, failing which the Tribunal would intervene and take steps to prepare a pay equity plan for Metro Toronto's non‑union employees. Metro Toronto posted its plan on January 20, 1995. This is a plan that should have been posted on January 1, 1990. Metro had posted an earlier plan, but when objections were made with respect to it, Metro decided to prepare and post a new plan to replace the earlier one.
Counsel for the Applicants has requested that we order Metro Toronto to notify employees who have left the employ of Metro Toronto since January 1, 1990 (Former Employees") of the posting of the new plan. Metro Toronto opposes this request.
Counsel for the Applicants argued that the order is necessary to allow affected individuals the opportunity to review the plan and object to it. In the normal course of events, a pay equity plan is posted in the workplace on the mandatory posting date, and thus, can be reviewed by the employees affected by it. In this case, Counsel argued, where the posting is more than 5 years after the mandatory posting date, not all the affected employees are still in the workplace. Counsel argued that the Tribunal had jurisdiction to make the order pursuant to subsection 25(2)(g) of the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (the Act"), which provides:
(2) The Hearings Tribunal shall decide the issue that is before it for a hearing and, without restricting the generality of the foregoing, the Hearings Tribunal,
(g) may order a party to a proceeding to take such action or refrain from such action as in the opinion of the Hearings Tribunal is required in the circumstances.
Counsel acknowledged that the Act does not otherwise require an employer to give notice to former employees, but Counsel said it is not surprising that the Act did not anticipate a posting of a plan five years after the mandatory posting date.
Counsel for the Applicants proposed that Metro be ordered to either send copies of the plan to Former Employees at their last known address, or send a notice informing Former Employees of the posting and the statutory deadlines for review and objections, with a phone number and address where they can obtain a copy of the plan.
Counsel for Metro argued that we have no jurisdiction to order a notice not contemplated by the Act. In Counsel's submissions, the requirement of posting in the workplace set out in the Act, an exhaustive code for providing notice, and ordering anything else would exceed our jurisdiction. Even if we have the jurisdiction, we should decline to make the order because Former Employees were advised of this proceeding and chose not to participate. In the alternative, Counsel for Metro argued that if we decide to require notification, it should be by a brief notice, with a contact to get a copy of the plan. Metro noted that there are approximately 700 Former Employees and sending a 30 page document to all would be onerous.
We have determined that we have the jurisdiction to make an order requiring notice to Former Employees, and that in the circumstances of this case, it is appropriate to do so.
We acknowledge that the Act does not require posting of pay equity plans other than in the workplace. Subsection 1(3)(b) requires an employer to furnish a copy of the plan to employees affected by it on request, but does not require the employer to make the employee aware of the plan's existence other than by the workplace posting. However, the circumstances of this case have not followed the anticipated statutory scheme of a workplace posting on or before the mandatory posting date, when the people affected by it are still in the workplace and able to review the plan, make their comments and file objections within the Act's timeframes. In this case, with the passage of more than 5 years from the mandatory posting date, there are 700 Former Employees for whom posting in the workplace is meaningless notice.
We realize that Former Employees were advised of this proceeding. However that notice would not have led individuals to anticipate this outcome, that is Metro posting a plan, to which the Act's review and objection process would apply.
We find that subsection 25(2)(g) gives us the jurisdiction to order notification to Former Employees. This general remedial power is, in our view, intended to permit the Tribunal to make orders that are consistent with the legislative scheme and responsive to, in the language of the subsection, what is required in the circumstances". Requiring Metro to notify Former Employees is consistent with a legislative scheme of giving effective notice so that the review and objection process can occur. And notification of Former Employees is required in the circumstances of a posting more than 5 years after the mandatory postingdate.
We therefore order Metro Toronto to advise Former Employees of the posting of the pay equity plan within 10 days of this decision. In order to give Former Employees adequate time to review the plan and make comments, we are amending the posting date from January 20, 1995 to March 31, 1995. We do this under subsection 25(4) of the Act. The review and objection deadlines found in section 15 will then follow. In this way, Former Employees will have adequate time to review the plan, and the potential confusion of different review periods for existing and former employees is avoided.
The notice shall advise of the posting of the plan, and the fact that it replaces the old plan. The notice shall advise who Former Employees can contact to obtain a copy of the plan and the deadlines for comments and objections. We note that Metro's pay equity plan has a section entitled Objections to Plan", outlining the review and objection process. We suggest that Metro use that as a basis for outlining the statutory deadlines for review and comments, using the new posting date of March 31, 1995. Counsel for Metro Toronto indicated that 10 days was sufficient time to accomplish this task. To be clear, we are not requiring that Metro send a copy of the plan with the notice, but that a copy of the plan will be sent to all who request it.
As we understand that this decision determines all the outstanding issues in these proceedings, we anticipate that the Applicants will withdraw their applications. If they do not do so within 30 days of this decision, we will adjourn these matters sine die.