PAY EQUITY HEARINGS TRIBUNAL
0493‑94 Group of Employees (Anonymous), Applicants and Salvation Army, Respondent
0508‑94 Salvation Army on behalf of a Group of Employers, Applicants and Group of Employees (Anonymous), Respondents
Before: Katherine Laird, Vice-Chair and Members Geri Sheedy and Charles Taccone
Appearances: Michelle Sherwood, Pay Equity Advocacy and Legal Services, for the Group of Employees Mary Beth Currie and M.M. Smith for the Salvation Army and the Group of Employers Jean L. Marentette for the Windsor Grace Hospital Janice Baker for the Scarborough Grace Hospital and the Toronto Grace Hospital Andrew Tremayne for the Grace Hospital Ottawa
Cite as: Salvation Army (Group of Employers), March 7, 1995, 0493-94 and 0508-94 (P.E.H.T.)
DECISION OF THE TRIBUNAL, MARCH 7, 1995
INTRODUCTION
1The task before the Tribunal in these proceedings is to determine who the employer is for a group of Salvation Army-associated facilities and centres located across the province. The proceedings arise out of an Order of an Officer of the Review Services Branch of the Pay Equity Office, dated October 4, 1993, which stated:
I hereby order that, for the purposes of pay equity, the Salvation Army be recognized as the employer for all facilities, corps, and centres of the Salvation Army. I further order the Salvation Army to post revised pay equity plans for its non-union employees in all locations across Ontario in accordance with this Order. (page 6)
2There are two applications before the Tribunal arising out of the Review Officer Order:
- an application by a group of anonymous employees for confirmation of, and compliance with, the Order; and
- an application by the "Salvation Army, on behalf of a group of Applicant Employers" for revocation of the Order and for confirmation that "each Salvation Army facility, centre or corps is "the employer" within the meaning of the Pay Equity Act", R.S.O. 1990, C.P.7 (the "Act").
For ease of reference, the application by the anonymous group of employees will be referred to as the Group of Employees application, and the application of the Salvation Army on behalf of the applicant employers will be referred to as the Salvation Army/Employers application.
3This decision deals with a number of preliminary issues raised by the parties.
PRELIMINARY ISSUES
4Several preliminary issues were raised with respect to these two applications at hearings on October 25, 1994, November 30, 1994 and December 5, 1994.
5On October 25, 1995, the Tribunal gave directions with respect to the posting of the applications in the various workplaces which are the subject of these proceedings. The ruling also provided for posting at four hospitals not included as facilities in the application by the Salvation Army/Employers. These hospitals were brought to the attention of the Tribunal by counsel for the Salvation Army/Employers at the hearing. The four hospitals were: Grace Ottawa, Toronto Grace, Scarborough Grace and Hotel-Dieu Grace Windsor.
6On November 30, 1995, the Tribunal heard submissions from counsel for the four hospitals that the Review Officer Order should be revoked, varied or held not to apply to these facilities. The hospitals' motion was not opposed by the parties. No employees of the hospitals appeared or made submissions as to the status of the hospitals. The Tribunal made an oral ruling holding that the Review Officer Order did not apply to the hospitals and that the hospitals were not parties to the proceedings. It is unnecessary for counsel for the hospitals to make further appearances, and they will not be given further notice of the hearings.
7On December 5, 1994, counsel on behalf of the Salvation Army/Employers raised a number of further preliminary issues with respect to:
- the jurisdiction of the Tribunal;
- the identification of the work sites at which employee applicants are employed;
- confirmation of the employment status of the applicant employees;
- the relevant time periods for evidence;
- the status of counsel for the Group of Employees.
8Counsel for the Group of Employees also raised as a preliminary issue the adequacy of the disclosure with respect to the Territorial Headquarters of the Salvation Army. Given that disclosure was on-going, counsel did not seek a ruling on December 5, 1994.
9Each of the preliminary issues raised at the December 5, 1994 hearing is dealt with below.
Jurisdiction of the Tribunal
Positions of the Parties
10The position of the Salvation Army/Employers was that the jurisdiction of the Tribunal in these proceedings was limited by the scope of the Review Officer Order. It was argued that the Order must be interpreted as applying only to the one facility named in the Order and to the two or three other facilities referred to in the Order. Counsel submitted that it would be a breach of natural justice to expand the ambit of the Order to cover institutions not involved in the Review Services process. The power of the Tribunal to vary an order under s. 25(2)(d) was said to exist only as between the parties who participated in the Review Services process. The question before the Tribunal was defined as being "who is the employer" as between the Salvation Army and the three or four facilities referred to in the Order or involved in the Review Services process.
11Counsel for the Group of Employees argued that the issue taken to Review Services, and decided by the Order, was precisely the question of who is the employer for all of the facilities and centres across the province. Relying on the City of Scarborough decision (unreported, March 15, 1994), it was the position of the Group of Employees that the employer issue with respect to all facilities was properly before the Tribunal.
Decision
12The issue that was in dispute between the parties at Review Services, decided by the Order, and raised in the current applications, is, whether the employer is, for purposes of the Act, the Salvation Army itself or each of the facilities and centres across the province. This issue is squarely within the jurisdiction of the Tribunal in these proceedings. All facilities, and their staff, have been given notice of the proceedings. We are satisfied that there has been no unfairness in the Review Services process which would impair our ability to hold a fair hearing on the issue before the Tribunal.
Reasons
13Both applications in these proceedings are filed pursuant to s. 24(6) of the Act, which provides that an employer, bargaining agent or employee complainant "may request a hearing before the Hearings Tribunal with respect to the order" of a Review Officer under s. 24 (emphasis added). Under s. 25(1)(b), the Tribunal is directed to hold a hearing when it receives such a request and, under s. 25(2)(d), it has the power to confirm, vary or revoke the Order of the Review Officer.
14The wording of s. 24(6), and the enumerated powers in s. 25(2)(d), establish that the Tribunal has the authority to consider, at the very least, all matters raised in the Review Officer Order. This approach has been adopted by the Tribunal in Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50 (at paragraph 9). In City of Scarborough , the Tribunal considered more broadly the question of its jurisdiction.
What is substantively at issue in any application to the Tribunal is a function of several variables:
the substantive issues the parties took to Review Services;
any additional issues the Review Officer may have raised and decided by order or referred to the Tribunal;
the issues the parties raised in their pleadings to the Tribunal; and
any agreements the parties may have reached subsequent to the close of pleadings.
Items (1) and (2) determine the outermost parameters of the issues that may come before us.
(City of Scarborough, paragraphs 16 and 17)
15Applying item (1) of the City of Scarborough criteria to our case, we can look to the Order to answer the question of what issues the parties took to Review Services. The Review Officer Order defines the issue in dispute at Review Services as follows:
The sole issue in dispute is the definition of employer for the purposes of pay equity. The Applicants contend that the Salvation Army is the employer for all of its facilities and centres across the province. The Salvation Army argues that each of the facilities constitutes a separate employer. This issue is critical because many Salvation Army facilities have no male job classes to use as comparators for the female job classes. Using a broader definition of employer expands the pool of male comparators in work places where pay equity comparisons might not otherwise be found. (page 2)
16Applying item (2) of the City of Scarborough criteria, we cannot accept the submissions of the Salvation Army/Employers that the Order on its face applies only to three or four facilities, as opposed to the approximately 160 named in their application. Although there is only one facility named in the Order, it is discussed as an example. The Order does not attach a total number to the facilities considered, but it does refer to "facilities and centres across the province". The Order decides the issue of who the employer is for Salvation Army-associated facilities throughout Ontario, and accordingly the employer issue before the Tribunal is with respect to all such facilities, as named in the application of the Salvation Army/Employers.
17Turning to item (3) of the City of Scarborough criteria, we note that application of the Salvation Army/Employers expressly challenges the finding of the Officer that the Salvation Army is the employer for all the named facilities. As well, it is this finding that the employee applicants seek to have confirmed in their application.
18The Tribunal adopts the City of Scarborough test in finding that the employer issue before us is not limited to three or four facilities. However, before leaving the jurisdictional question, it is necessary to address the submissions of the Salvation Army/Employers with respect to the fairness of considering an issue which affects facilities apparently not involved in the Review Services process.
19The Tribunal does not know who all the participants were in the Review Services process, on the employee side or the employer side. We do not know if there was discussion at Review Services of the issue of notice to, and participation of, the individual facilities, and if so, what positions the parties took in this respect. Although the Salvation Army was represented by counsel at Review Services, the employees were not. Counsel for the Salvation Army/Employers stated that the participation at Review Services of a legal advisor to the Salvation Army, Captain Hutchinson, was not participation on behalf of each individual facility.
20The Tribunal must always be concerned with questions of fairness and abuse of process affecting its own proceedings, but will not otherwise generally concern itself with issues of process and procedural fairness at the Review Services stage. (See New Liskeard Board of Police Commissioners (No. 1) 1990, 2 P.E.R. 39, Cybermedix Health Services Ltd. (1990), 1 P.E.R. 41) In this case, all facilities and centres have been given notice of the proceedings before the Tribunal, and have the opportunity to present evidence and make submissions at a hearing de novo into the very issue of their status. In the circumstances, we find that the fairness of our proceedings is not impaired.
Identification of Work Sites
Positions of the Parties
21In arguing that the applicant employees should be required to identify the facilities at which they are employed, the Salvation Army/Employers relied upon s. 32(4) which gives employees the right to anonymity, but makes no reference to work sites. Counsel argued that, without disclosure, individual facilities would not know that the status of their facility was at issue, and would not have the opportunity to participate in the hearing. It was also argued that a failure to order disclosure of the work sites would give the appearance that the issue of who is the employer had been pre-judged.
22Counsel for the Group of Employees advised the Tribunal that, in some cases, the anonymity of the individual employees would be compromised by disclosure of the work sites, given the small number of employees at some of the facilities.
Decision
23The Tribunal declines at this time to order the Group of Employees to identify the facilities or worksites at which the individual employee applicants are employed.
Reasons
24The Tribunal notes that all facilities and centres identified in the Salvation Army/Employers application have now received notice of the proceedings. Each facility has the opportunity to participate in this hearing, and has in fact been represented thus far by counsel appearing for the Salvation Army on their behalf. Moreover, because the Review Officer Order finds that the Salvation Army is the employer with respect to all facilities across the province, the question of which staff has joined in the Group of Employees application is of limited significance to the legal question. The status of each facility is at issue regardless of whether its employees have joined in the Group of Employees application.
25It appears to the Tribunal that identification of the worksites would vitiate the right of some employee applicants to anonymity under s. 32(4) without being of any assistance in terms of notice or in narrowing the issues in dispute. The Tribunal fails to see how a failure to order disclosure of this information at this time would suggest that the issues in dispute have been pre-judged. The Tribunal has the task of reviewing an Order affecting facilities across the province, now identified in the Salvation Army/Employers application. Regardless of the worksites of the applicant employees, all facilities are affected and have the opportunity to participate in the hearing.
Employment Status of Employees
Position of the Parties
26Counsel for the Salvation Army/Employers has asked for a ruling requiring the employee applicants to provide the Tribunal with some form of written confirmation of their request for anonymity and their employment status during the relevant period of time.
27Counsel for the Group of Employees took the position that the request for anonymity in Schedule A to the application was confirmation of the request, and that an affidavit from her as to the employment status of the applicants should be sufficient.
Decision
28The Tribunal directs counsel for the Group of Employees, as agent for the applicants pursuant to s. 32(4) of the Act, to file with the Tribunal by March 27, 1995, an affidavit of a staff person of the Pay Equity Advocacy and Legal Services confirming that s/he has obtained information from each of the employee applicants confirming their employment status during the relevant period at one of the facilities listed in the Salvation Army/Employers application.
29For the purpose of this affidavit, it will be sufficient if the information relied upon is in the nature of a signed statement from each employee applicant setting out their period of employment and specifying the worksite. The statement should be supported by documentary evidence, such as a T4 slip, a pay stub, or a benefit card, but the statement and supporting materials should not be attached to the affidavit. A copy of the affidavit will be provided to counsel for the Salvation Army/Employers, and filed with the Tribunal. The employee statements and the supporting documentary evidence need not be filed with the Tribunal at this time, or provided to the other parties. Any issues arising out of this order may be brought to the Tribunal at the resumption of the hearing.
Reasons
30Section 32(4) is an unusual provision. Counsel did not bring to our attention other similar legislation giving anonymity to employee applicants. The Tribunal should be reluctant to undermine the anonymity to which the employees are clearly entitled under the statute.
31We note that s. 32(4) provides that the agent of the anonymous employees is to "be the party to the proceeding before the Hearings Tribunal". The question of whether, in our case, it is the counsel who is the agent or the Pay Equity Advocacy and Legal Services (PEALS), was not discussed. Given the fact that counsel or PEALS is a party by virtue of s. 32(4), an affidavit from a PEALS staff person testifying, on the basis of information provided by the applicants, that each was employed during the relevant time, would appear to be sufficient for the purpose of ensuring that the employee applicants have standing to bring their application.
Relevant Time Period for Evidence
Positions of the Parties
32The Salvation Army/Employers asked the Tribunal to rule that evidence up to the summer of 1994 would be relevant and admissible. Counsel stated that this would allow the Tribunal to make determinations on the basis of the best evidence available. Counsel advised that there was no significant change in structure until after the summer of 1994.
33In the alternative, the Salvation Army/Employers asked the Tribunal to confirm that evidence would be allowed up to the posting date of each separate facility or centre, noting that, given the different nature and sizes of the centres, there were varying posting dates.
34The Group of Employees took the position that the Tribunal could, as a practical matter, accept evidence up to December 31, 1993, this being the last possible posting date for any of the facilities. Although it was argued that the legislation was based on a "statutory snap shot date", it was agreed that later evidence might be helpful, subject to argument as to weight.
Decision
35Given the varying mandatory posting dates for the facilities at issue in these applications, evidence up to the final possible posting date of December 31, 1993, may be accepted as relevant, subject to submissions as to weight.
Reasons
36In the view of the Tribunal, the pay equity scheme established by the legislation is based on mandatory job data comparisons as of the statutory effective date. We note in particular section 13(11), which gives immunity to complying employers for compensation practices prior to the effective date which were contrary to the Act.
37At the same time, it is recognized that the Act requires parties to complete certain tasks over a varying period of time between the effective date and the applicable mandatory posting date. Clearly, as a practical matter in pay equity negotiations between the parties, data from a period after the effective date is often used.
38We adopt the approach taken by the Tribunal in Hilton Works (1993) 4 P.E.R. 17: relevant evidence up to the mandatory posting date should be considered where it will assist the Tribunal in making the necessary determinations on the issues before it.
Status of Counsel for the Group of Employees
Position of the Parties
39The Salvation Army/Employers raised the issue of the status of counsel for the Group of Employees, arguing that it appeared unlikely that she represented employees from all facilities and centres across the province. Counsel for the Salvation Army/Employers questioned whether the employees represented by PEALS were appropriate respondents to the Salvation Army/Employers application, given that they did not represent staff from all facilities.
40Counsel for the Group of Employees took the position that the employer issue taken to Review Services, and now before the Tribunal, was a question of law, and that as the representative of the employee applicants, she had sufficient standing to make submissions in respect of that issue.
Decision
41We find that counsel for the Group of Employees has the right to fully address the legal issue before the Tribunal, that is, the question of who the employer is for Salvation Army-associated facilities across the province.
Reasons
42We have already made a determination that counsel for the employee applicants does not have to disclose the identity of her clients' worksites at this time. It would undermine our previous ruling, and be inconsistent, to restrict her to making submissions with respect to worksites at which she represents applicants.
CONTINUATION OF THE HEARING
43This hearing is scheduled to reconvene on April 4, 1995, at which time the Tribunal would like to commence hearing evidence in respect of the Salvation Army/Employers application. Both counsel have noted that the facilities across the province are organized into a number of divisions, and have suggested that evidence might be introduced on a division-by-division basis. The Tribunal agrees that evidence in these proceedings could, as a practical matter, be introduced from a selected number of worksites on a division-by-division basis.