Benita Larsen v. Liquor Control Board of Ontario, 1997 CanLII 12219

PAY EQUITY HEARINGS TRIBUNAL

PE-0494-94 Benita Larsen, Applicant v. Liquor Control Board of Ontario, Respondent

PE-0498-94 Liquor Control Board of Ontario, Applicant v. Benita Larsen, Respondent

Before: Mary Woo Sims, Vice-chair, and Members Bruce Budd and Margaret Kvetan

Appearances: Benita Larsen on her own behalf; Vincent Johnston and Peigi Ross for the Respondent

Cite As: Liquor Control Board of Ontario (No. 3) (20 February 1997), 0494-94; 0498-94 (P.E.H.T.)

DECISION OF THE TRIBUNAL, February 20, 1997

Background

1. Application 0494-94 concerns the allegation by Ms Larsen that the Liquor Control Board of Ontario (L.C.B.O.) has violated section 9(2) of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (the “Act”). At the time that Application 0494-94 was initially filed, five other employees were involved. At the commencement of this hearing, Ms Larsen was the sole applicant in this matter. Ms Larsen seeks to enforce a Review Officer’s order finding that the L.C.B.O. had violated section 9(2) of the Act and ordering her reinstatement. She seeks reinstatement and full compensation from the date of her termination of employment (September 2, 1993) to the date of reinstatement. The L.C.B.O., in its application 0498-94, seeks to overturn the Review Officer’s order.

2. These applications were the subject of two previous decisions of the Pay Equity Hearings Tribunal (the "Tribunal"), L.C.B.O. (1994), 5 P.E.R. 96 and L.C.B.O. (No. 2) (1995), 6. P.E.R. 148. As a result of these decisions, the allegations which remain before the Tribunal, as set out in Ms Larsen’s Application 0494-94, are as follows:

∙ breaking the law and the Pay Equity Act;

∙ change in roles and responsibilities without current notification;

∙ workplace harassment;

∙ severely curtailed courses, conferences and professional associations;

∙ usual work assignments were given instead to contractors and/or consultants;

∙ termination without the offer of alternative positions;

∙ attempting entrapment with the intention of firing B. Larsen;

∙ low profile assignments’ negative impact on careers;

∙ low performance appraisals;

∙ red-circling; and

∙ the Business Systems Analysts (BSA) were terminated after LCBO had met government reduction targets.

3. Section 9(2) of the Act states:

No employer, employee or bargaining agent and no one acting on behalf of an employer, employee or bargaining agent shall intimidate, coerce or penalize, or discriminate against a person,

(a) because the person may participate, or is participating in a proceeding under this Act;

(b) because the person has made or may make, a disclosure required in a proceeding under this Act;

(c) because the person is exercising or may exercise, any right under this Act; or

(d) because the person has acted or may act in compliance with this Act, the regulations or an order made under this Act or has sought or may seek the enforcement of this Act, the regulations or an order made under this Act.

4. The L.C.B.O. does not dispute that a prima facie case under section 9(2) of the Act has been established. Once a prima facie case under section 9(2) of the Act has been established, pursuant to section 25(7), the evidentiary and legal onus shifts to the L.C.B.O. to establish that what happened to Ms Larsen was not connected to her having exercised her rights under the Act. Mr. Johnston acknowledged that it is up to the L.C.B.O. to prove there was no anti-pay equity animus and no violation of the Act. Given this, we feel it is unnecessary to recap the history of pay equity activities that Ms Larsen was engaged in while employed by the L.C.B.O. as a Business Systems Analyst (BSA) from March 21, 1988 to September 2, 1993. These activities will become apparent through the course of this decision. The issue before this Tribunal is essentially this: did Ms Larsen suffer any negative consequences in her career at the L.C.B.O., including her termination from employment, because of her pay equity related activities?

5. On commencement of the hearing on the merits, one of the Respondent’s counsel, Mr. Johnston, raised an issue concerning the composition of the panel. He indicated that in approximately 1990 or 1991, he had been assigned, on a temporary basis, to work with, and report to, the panel Vice-Chair in her employment prior to her appointment to the Tribunal. The Vice-Chair explained the nature of her working relationship with Mr. Johnston to the parties and indicated that since then, she has had no contact with him. Based on the information disclosed, Ms Larsen stated that she had “no problems” with the composition of the panel, or with the Vice-Chair continuing to hear the matter.

The Evidence

6. Before we proceed to deal with the evidence, we wish to state our view that an unrepresented party can effectively participate in a hearing before the Tribunal. Laypersons have successfully appeared as agents for a party before this Tribunal. It is obvious that it is important for any party appearing before the Tribunal to be aware of the legal parameters in which a hearing must proceed and to be clear about the nature or scope of the issues before the Tribunal. The party must then be prepared to put forward their position before the Tribunal and to challenge, where necessary, the position taken by the other party.

7. Although the onus is on the L.C.B.O. to prove no anti-pay equity animus towards Ms Larsen, it is still up to the Applicant or her counsel to contradict and challenge the case of the L.C.B.O., through effective cross-examination and presentation of her own case, sufficient to refute the explanations put forward by the L.C.B.O. Throughout the conduct of the hearing, we were mindful of the fact that Ms Larsen was representing herself. We provided Ms Larsen with assistance and direction when appropriate. In the end, we found no evidence to support Ms Larsen’s allegations concerning differential treatment towards her by the L.C.B.O. because of her pay equity activities. We also found that her termination from employment was not as a result of, nor tainted by, her pay equity activities. We feel it important to recount the evidence of all the witnesses as it will assist in understanding why the Tribunal ultimately reached its decision to dismiss Ms Larsen’s Application and uphold the L.C.B.O.’s Application.

The L.C.B.O.’s case

Murray Kane

8. Mr. Kane has been the Vice-President of Human Resources for the L.C.B.O. for the past eight years. He described the L.C.B.O. as having six major divisions: Human Resources, Finance, Information Technology (IT), Retail, Merchandising and Distribution. There is a group termed “Executive Offices” which is not a division. The L.C.B.O. has four warehouses, some 600 stores spread throughout the Province, and has regional offices in Hamilton, London, Sudbury and Ottawa with the head office in Toronto.

9. In the summer of 1992, after years of recession and declining sales, senior management at the L.C.B.O. determined that it should “right-size” the organization. The L.C.B.O. initially laid off approximately 60 part-time and 60 full-time employees. As a result of the concerns expressed by employees and the former provincial government about the layoffs, a memo was sent by Larry Gee, Executive Vice-President of the L.C.B.O., along with a document entitled “Cost Cutting Measures Q & A” to the Vice-Presidents of all Divisions. The document was meant to assist management in their “right-sizing” task. Human resources personnel had already been assigned to divisions “to assist in hiring and firing and everything in between”. In addition to those duties, these personnel were now also to assist in the right-sizing activities.

10. The L.C.B.O. introduced a voluntary exit program in the spring of 1993 called “New Beginnings”. Around the same time, the “Social Contract” came into effect. Mr. Kane was the L.C.B.O. spokesperson and major representative at the provincial Agencies, Boards and Commissions Sector table negotiations. As he recalled, the L.C.B.O. was to achieve savings of $7.5 million. Discussions took place between L.C.B.O. management and the Ontario Liquor Board Employees’ Union (OLBEU) concerning ways of achieving this target. The OLBEU agreed that the “New Beginnings” programme could help to achieve the targeted $7.5 million and this plan was approved by the government. The programme was open to all full-time employees across the entire organization. Mr. Kane said that there were “guesstimates” as to how many employees would opt for the voluntary exit. When asked whether there were targets set as to how many employees the L.C.B.O. wanted to leave, Mr. Kane responded that the targets were vague as they just did not know how many employees would take advantage of the programme.

11. Management of the L.C.B.O. devised a plan for additional positions that could be downsized or layoffs which could occur in the event that the “New Beginnings” programme did not result in the necessary savings. It was intended that there be a period of 2 - 3 months when employees could decide if they wished to opt for the programme. Thereafter, Division Heads would review their staffing complement to determine what further action, if any, should be taken. Approximately 330 full-time employees opted for the “New Beginnings” programme including twelve employees in the Human Resources Division. Mr. Kane said that more employees in his division took the programme than he thought would, but in the end, he still had to terminate the employment of three employees in his division.

12. Mr. Kane referred to a document which was prepared by the Human Resources Division for the current provincial government to show that the L.C.B.O. had taken its fiscal responsibilities seriously and had been engaged in a process of downsizing for a number of years. The document covered the period of time from March 31, 1985 to February, 1996. For purposes of brevity, the document is reproduced here, in part, to illustrate the results of downsizing by the L.C.B.O. These figures represent remaining staff.

Year as of March 31 Permanent Full Time Permanent Part-Time Contract

1985 3417 549 2

1989 3396 645 2

1993 3073 400 26

1995 2824 329 27

13. He was aware that the Business Systems Analyst (BSA) position had been targeted for possible downsizing. He said the L.C.B.O. had been backward in its technology and that the IT Division had increased its staffing for several years in order to catch up. It had always been contemplated that once the organization had caught up with technology, there would be some downsizing of these positions. He had not been surprised that the BSAs had been targeted for downsizing as the position was considered redundant. When asked by counsel if he had any information that the termination of Ms Larsen was as a result of her pay equity activities, Mr. Kane answered “No”.

14. Ms Larsen’s cross-examination of Mr. Kane did not challenge the information provided by him concerning the L.C.B.O.’s efforts at downsizing and reorganizing nor did it put him on notice of any contradictory evidence to be raised in response. Mr. Kane testified that he was vaguely aware of the pay equity activities that Ms Larsen was involved in and had met her as well as other employees in the BSA position category regarding their concerns on a few occasions, but could not recall the substance of those discussions. When asked by Ms Larsen if Mr. Kane had any information that her termination of employment was as a result of pay equity activities, he answered “No”. Ms Larsen did not pursue the questioning further.

Marlene Adelson

15. Ms Adelson is currently a Human Resources Advisor and is responsible for staffing, organizational development, labour relations and most other human resource-related activities of the IT and Finance divisions. She has occupied that position since March 1994. Commencing in May 1991, Ms Adelson was hired, on contract, by the Vice-President of IT to develop and implement a career planning program, to coordinate training and development and to facilitate employment equity initiatives. Ms Adelson testified that the career planning initiative was developed to address evolving requirements of IT. Technology was changing and the process would help identify the skills of employees as well as their training needs. The initiative was also developed to shift the organizational culture from that of “entitlement”, to employees taking responsibility for their own career management. Employees were asked to attend career planning workshops at which they would be provided with a workbook Ms Adelson had developed for IT. Once completed, the employee would meet with her and she would assist the employee in developing a career action plan. The career action plan would be forwarded to the employee’s manager for signature. If training was needed, this would then be scheduled so long as the training requested met organizational requirements.

16. Ms Adelson’s first contact with Ms Larsen was when she was one of over a hundred participants in the career planning programme. Ms Larsen’s career action plan, completed in August 1992, was submitted as evidence. Ms Adelson said she felt that Ms Larsen’s career plan was unrealistic in that she named two positions - Manager, Systems Architecture and Director, Systems Architecture Planning - as career goals. Neither of those positions existed within the L.C.B.O. in 1992 nor do they exist now. She said she asked Ms Larsen to identify what the position duties might be so she could better understand Ms Larsen’ plan and assist her in identifying other career goals which existed. These discussions were not successful. As is the practice, the next step was to forward Ms Larsen’s plan to her immediate supervisor, Anatole Haytchouk. Mr. Haytchouk rejected the career plan and wrote on it “Rejected August 26, 1992 Is not + does not focus on viable IT pos’n or org. struct.”.

17. Ms Adelson testified that Ms Larsen subsequently revised her career action plan and a memo to that effect was sent to Mr. Haytchouk, with a copy to Ms Adelson dated October 16, 1992. Ms Adelson said that the second career plan was more realistic and that she recalled that portions of the plan were implemented.

18. She discussed Ms Larsen’s training requirements with her in the context of her career plan. In her original career plan, Ms Larsen had written that she should, among other things:

Be given the opportunity to attend management-initiated courses as well as two personally-initiated courses or conferences that support personal career objectives within each fiscal year.

Ms Adelson’s interpretation of this request was that Ms Larsen wished to attend any two courses of her choice. Ms Adelson said that the direction of her Vice-President was that employees had to attend courses that were related to the needs of the organization. The manager would only approve attendance at courses if they met this criterion. Ms Adelson said that there was a problem with the blanket statement or proposal in Ms Larsen’s career development plan that she wanted to take two courses of her choice. Ms Larsen, in being considered for any course, would have had to indicate the job-relatedness of the course or the connection to her career development plans or how the course would be beneficial to organizational goals.

19. Ms Adelson was asked if Ms Larsen was ever refused an opportunity for training. She responded that no records were kept of training requests which had been denied; however, she did not recall any specific courses which had been denied Ms Larsen. Ms Adelson testified about a document prepared in late summer 1993 which showed various courses that Ms Larsen had attended since June 1991. It shows that Ms Larsen attended eight “classroom” courses totalling fourteen days, three “computer based training” courses and one course under the title of “video programs”. Ms Adelson went through each of the training courses Ms Larsen had taken and testified as to the job-relatedness of each of the courses. They were either technical training courses or courses related to organizational goals. For example, the diversity course which Ms Larsen attended was open to all employees and developed to support the L.C.B.O.’s employment equity initiatives.

20. Ms Adelson testified that in about May 1993, she was working as a human resources advisor when she was asked by Gord Anderson, the Vice-President of IT, to temporarily assist in the assignment of people from the “resource pool” to various IT projects. She was permanently assigned these duties in March 1994, a task normally done by the Manager, Systems Planning. She could not recall if that position was held by Mr. Haytchouk at the time or Bill McDowell, however, the Manager had just resigned and she took on the duties at Mr. Anderson’s request. Projects were initiated based on the specific needs of the project and the Project Manager, individuals within the IT resource pool would be assigned. Ms Larsen was part of the resource pool. Ms Adelson testified that she had difficulty in assigning Ms Larsen to projects as Ms Larsen lacked the technical skills required. At other times, when she offered Ms Larsen’s name to managers, they would refuse her on the ground that she didn’t have the required programming skills, or analytical skills or that she was not appropriate for their needs. The managers preferred to have programmer analysts or a senior systems consultant assist them.

21. Ms Adelson was involved in the assignment of contractors and consultants to various projects. These persons were hired primarily as programmer analysts for short term projects or as consultants. When asked if these contractors and consultants were hired to replace BSAs Ms Adelson responded, “No. The work was different”.

22. With respect to Ms Larsen’s pay equity activities, Ms Adelson testified that she was not aware of Ms Larsen’s pay equity activities at the time of her discussions with Ms Larsen concerning her career action plan. It was only after she became a human resources advisor, that she became aware of the pay equity activities of Ms Larsen. When asked if any of the project managers with whom she dealt had mentioned Ms Larsen’s pay equity activities, Ms Adelson said “no”.

23. Ms Adelson was then asked questions concerning the Senior Planning Analyst (SPA) position in the context of Ms Larsen’s allegations that the SPA position replaced the BSA position. Ms Adelson said that the IT division continues to evolve. The planning function under the current Director of IT is different from when Ms Larsen was part of the department. The planning function is no longer centralized and the SPA position no longer exists. The L.C.B.O. has not hired for the SPA position since 1992. Of the three SPAs that were hired, two moved to the Information Services department and are responsible not only for planning but also implementation. The remaining SPA is assigned to the “Data Resource Management Team” to do data administration work.

24. In 1993, Ms Adelson, along with other management staff of the L.C.B.O. met with the then Minister of Consumer and Corporate Relations (M.C.C.R.) to brief her on the fact that the BSA position was to be abolished. This meeting was unusual, but Mr. Anderson (V.P. I.T.) believed it was necessary to obtain ministerial approval to eliminate the BSA position. Ms Adelson understood that Ms Larsen and Gail Wells, another BSA, had previously met with the Minister about their concerns about the L.C.B.O. Ms Adelson said the Minister accepted the rationale for the elimination of the BSA position.

25. In cross-examination, Ms Adelson maintained that she was unaware of Ms Larsen’s pay equity activities when they were discussing her career action plan. Ms Adelson did not know if Ms Larsen had ever received any feedback on her revised career action plan of October 1992. As she recalled, Ms Larsen was away for 6 months and it might have been during that time period that the revised career action plan would have been discussed with her manager or approval of it would have been obtained.

Nick Virdo

26. Mr. Virdo is currently employed at the L.C.B.O. as a Human Resources Advisor, a position he has held for the last 5 - 6 years. He described his role as that of a human resources generalist. He has divisions assigned to him, which he called “client divisions” and is responsible for providing advice to managers and employees of those client divisions on human resource matters including performance appraisals, benefits coverage, other corporate entitlements and career counselling. His current clients are Distribution, Head Office and the Durham warehouse. In September 1991, he was assigned the IT division.

27. Mr. Virdo said that in 1989, a consultant, Mercer’s, was hired to conduct a thorough review of the IT division. The consultant made extensive recommendations concerning changes that could be implemented within the division which would result in systems and equipment changes and an organizational structure which would support those changes. When Mr. Virdo was first assigned IT, there were approximately 120 permanent full-time employees. Staffing in IT peaked in 1992 and has come down since then. The business of IT was in transition. The IT systems were changing from the “old VAC system to the new MVS system” and new people were needed to operate the new system. New skills were needed and a lot of hiring took place. Training was also occurring in order to allow the “veterans” to learn the new skills that were required. Mr. Virdo participated in developing job advertisements, sat in on interviews to assist the hiring manager and helped with the paper work. At the same time, IT also retained consultants and contractors in order to deal with “a spike in the workload” or to provide a specific skill set as required. Mr. Virdo did not typically get involved in recruiting contractors for short-term work. Usually, the Manager of the Resource Pool would hire the contractors and consultants.

28. Mr. Virdo was asked if he knew of any circumstances where work normally performed by BSAs was done by contractors or consultants. Mr. Virdo said that the only instance he was aware of was a project concerning the automation of the airport stores. The job had initially been given to a BSA but performance problems arose. The systems manager who was responsible for the project was not happy with the work done by the BSA assigned. The BSA in question was not identified. An outside consultant was hired and redid the work.

29. Mr. Virdo’s first involvement with the BSAs and their pay equity concerns was in 1991 shortly after he became a human resources advisor. He was informed by Gail Chapman, Manager of Classification, that there was a pay equity complaint and he was briefed about it, as he would have to follow-up on it in his capacity as human resources advisor. The complaint was related to the L.C.B.O. revising the job description and reclassifying the BSA IV job class to BSA. A Memorandum of Agreement, signed Feb. 12, 1992, was reached between the L.C.B.O. and the BSAs concerning the complaint. The parties agreed to appoint an outside consultant “... to perform pay equity job evaluations of the female job classes of BSA IV ...”. Once the evaluations were completed, the consultant would determine the appropriate male job class comparator and the L.C.B.O. would implement any resulting compensation adjustments. The parties also agreed to the following:

30. In the event that the BSA IV ... [is] reclassified or red-circled in the future, the L.C.B.O. will provide to the employees concerned a written explanation of its reasons for the reclassification or red-circling. The L.C.B.O. will provide to the incumbents in the BSA IV job class a written explanation of the 1991 re-evaluation. Further, the L.C.B.O. agrees that the BSA IV ... will not be red-circled or reclassified before December 31, 1992 and any red-circling which occurs will use as its base the Grade which the (consultant) finds to be appropriate to the female job classes.

31. On March 10, 1992, a letter was sent to the BSAs from Vic Baniuk, Director, Information Technology Planning advising them that the IT Division had implemented a new organizational structure in 1991 and that as a result, a number of positions, including the BSA IV job class had been reviewed, evaluated and reclassified. Other positions were abolished and new positions created. This letter went out in compliance with the provisions of the February 12, 1992, Memorandum of Agreement.

32. Mr. Virdo wrote to Ms Larsen on February 1, 1993 advising her that the BSA position was red-circled effective January 1, 1993. He wrote that the BSA position “ ... had been classified to Pay Grade 8 effective May 1, 1991, with a 1992 salary range of $46,192 - $57, 893 per annum. As your current salary of $61, 392 per annum, exceeds the maximum rate, you will receive red circle salary protection”. He said the red-circling of the BSA position had occurred in the normal course of events and in compliance with the Memorandum of Agreement.

33. With respect to performance appraisals, Mr. Virdo testified that when he was first assigned to IT, Bill McDowell was the Manager of Planning and also managed the resource pool. When Mr. McDowell left, he was succeeded by Mr. Haytchouk. Mr. McDowell contacted him in November 1991 concerning Ms Larsen’s performance appraisal which she had refused to sign. Mr. McDowell asked for and was provided with advice as to how to proceed.

34. In 1992, Ms Larsen joined her co-workers in a complaint to the Pay Equity Commission alleging that the L.C.B.O. had violated section 9(2) of the Act. This complaint concerned a letter which was sent by Vic Baniuk, Director Information Technology Planning, to three of the BSAs about an act of insubordination on their part on which we have made no finding. Although Ms Larsen was on leave at the time, she nevertheless joined her co-workers in the complaint.

35. Mr. Virdo said that although the L.C.B.O. believed there was no merit to the complaint, it was settled with the assistance of a Review Officer. The Memorandum of Settlement between the L.C.B.O. and Ms Larsen, signed June 11, 1992 says in part:

1. Ms Larsen, in conjunction with the LCBO, will continue to work on and finalize a Career Development Action Plan

2. When completed, the Career Development Action Plan will be added to Ms Larsen’s personnel file

3. The Liquor Control Board of Ontario acknowledges Ms Larsen’s contributions to the I.T. Division and the Board, and will endeavour to provide career development opportunities in accordance with the Career Development Action Plan subject to organizational goals and needs

4. Consideration for career opportunities will include consideration of past experience both inside and outside the LCBO.

35. Mr. Virdo said that in June 1992, the L.C.B.O. began discussing how to downsize the organization. He worked with his clients, Distribution and IT, to assist them in determining positions that could be downsized. In considering which positions could be downsized, a number of issues arose. They included issues such as bargaining unit positions that were to be eliminated and possible bumping scenarios. Also of concern was the proposal that the entire BSA job class would be eliminated with a pay equity issue still outstanding. In a document, prepared in June 1992, Mr. Baniuk advised Mr. Anderson, V.P. - I.T. Division, that he had determined that in total nine persons could be affected by the downsizing, including one manager, four BSAs, one SPA, two administrative/support personnel and one data analyst. The L.C.B.O. decided not to take any action until its voluntary exit programme “New Beginnings” had taken its course.

36. Around October 1992 another document, prepared by Mr. Baniuk’s Administrative Assistant, indicated that eight people could be affected by downsizing. All the BSAs were again identified as candidates for downsizing. Mr. Virdo explained that through his discussions with Mr. Baniuk and other managers in IT, it was clear that the BSA’s role was no longer necessary in the organization. In August 1993, a briefing note for the Minister, M.C.C.R. was prepared by John Hannah, a Director in Human Resources, with Mr. Virdo’s assistance. The briefing note was prepared in order that she be apprised of developments since Ms Larsen had written to the Deputy Minister, M.C.C.R. concerning her issues.

37. With respect to Ms Larsen’s allegation that there was an attempt to “entrap” her, Mr. Virdo responded that when he heard about the allegation, he inquired into it, but that there was no formal investigation. The incident started with a project team meeting which Ms Larsen did not attend. Michael Rassenti, a team member, assigned Ms Larsen a project in her absence. He testified that this manner of assignment was not out of the ordinary, but that Ms Larsen took it as evidence of entrapment. He understood that this misunderstanding was later resolved when Mr. Rassenti met with Ms Larsen. In his view, the BSA’s were not treated differently than any other employee of the L.C.B.O.

38. Ms Larsen’s cross examination of Mr. Virdo consisted mainly of asking questions clarifying the dates and time frames that he had given in his examination-in-chief. Ms Larsen also questioned him about his interpretation of the terms of settlement reached in both pay equity complaints. On the whole, Ms Larsen’s cross-examination failed to establish any contradiction in Mr. Virdo’s evidence or put him on notice of any contradictory evidence to be raised in response.

Hugh Kelly

39. Mr. Kelly is currently the Vice-President of IT. He has held that position on a permanent basis since early December, 1994. Prior to his appointment as Vice-President, he was the successor to Mr. Baniuk as Director of IT. Mr. Kelly described the evolution of IT needs within the L.C.B.O. The staff complement at IT in May 1994 was approximately 135. At the time he testified in May of 1996, he had 120 staff with 2 vacancies. However, in a business plan, submitted to and approved by the Board of Directors and the M.C.C.R., he had further reduced 10 positions effective October 1, 1996, bringing his staffing level from 122 to 112. He attributed the decline in the number of employees to a number of factors of which government restraint and economic reality were the driving forces. He also explained that given the nature of IT, the increasing services available from vendors and the services that the IT Division provided, IT had to continue to demonstrate that its services are an added value to the organization. The budget of the division has been decreased. Savings had to be found. Mr. Kelly described the restructuring of the division, including the disbanding of the resource and planning pool (previously only referred to as the resource pool), and the elimination of the manager’s position.

40. Mr. Kelly described the current circumstances under which contractors and consultants are used by L.C.B.O. He also described the ongoing technological advances that are being made at the L.C.B.O. which could possibly result in further positions being cut. These technological advances have already resulted in the SPA position being reclassified as Senior Systems Analyst (SSA). He believed that 3 or 4 of the positions in the SPA were reclassified to SSA and 1 to a Data Administrator.

41. In cross-examination, Mr. Kelly acknowledged that changes in technology resulted in additional work for employees, but noted that this work required IT personnel to apply different skills than those required under the old technology. He also answered Ms Larsen’s questions concerning the shift from one technology to another. In response to questions concerning the existing management team at IT, Mr. Kelly said that it was his intention to have no more than two directors in the division and that their titles will also change. Ms Larsen’s cross-examination failed to contradict Mr. Kelly’s evidence.

Vic Baniuk

42. Mr. Baniuk worked at the L.C.B.O. as Director, Information Technology Planning from July 1990 to May 1993. His mandate was to implement a new organizational structure to help the L.C.B.O. move from a model of “supply based distribution to stores, to a retail model of customer service”. The L.C.B.O. was also converting its technology from DOS to MVS. The IT division was expected to support new technologies in all aspects: point of sale systems, distribution systems, inventory control, systems in head office for inventory, pricing, finance and human resources functions. As a result of these changes, IT staff were required to have better skills to implement and support these changes.

43. Mr. Baniuk said the BSAs were part of a resource pool allocated or assigned to a project as required. They reported to the Planning Manager who reported to him. His interaction with the BSAs was as a department head. He provided counselling, and through their manager, direction and evaluation. BSAs assisted in projects by analysing their various components. He explained that no two projects were the same and that within a project, there were a number of steps and each step is analysed. The questions asked were: How does something work now? How could it be changed? Does the work relate to what we want to do?

44. Mr. Baniuk said he signed a revised position description for the BSA and approved the position description for the new position of SPA in May 1991. The role of the SPA differed from that of the BSA in that SPAs would be more involved in planning around technological needs. The SPA’s technical knowledge also needed to be greater than that of the BSA’s. At times contractors or consultants would be brought in to provide additional expertise or deal with workload requirements. He then described the difference between a contractor and a consultant. In response to a question as to whether contractors or consultants were ever used to do the work of BSA’s, he responded “No, not to my knowledge”.

45. Mr. Baniuk said he provided work direction to Ms Larsen and specifically named the Nolan and Norton study which was to review the business processes of the L.C.B.O. and to determine what type of data and technological needs were required to support those needs. He had also assigned Ms Larsen to projects from time to time. When asked if there was any attempt to restrict Ms Larsen’s assignments, Mr. Baniuk responded “No”. The projects assigned to Ms Larsen were considered to be appropriate for someone in her position with her skills. There was insufficient work to keep all the BSAs busy because the type of work required for many projects was not BSA work. In fact, Ms Larsen had been away from work for a number of months on leave and no one was hired to replace her because the workload could not justify a replacement. Mr. Baniuk testified that due to technological change, such as the advent of self-contained software packages, the BSA position was no longer necessary. The workload issue and changing technology resulted in the decision to eliminate the BSA position.

46. With respect to training requests, Mr. Baniuk recalled that some of Ms Larsen’s training requests had been denied. He did not recall the specifics, but said that if training was denied, it could only be because it did not comply with L.C.B.O.’s policy that training has to be relevant to the job and the person’s career plan. Mr. Baniuk denied that Ms Larsen’s pay equity actions led to denial of her training requests.

47. Mr. Baniuk said that he was aware that Ms Larsen had refused to sign her performance appraisal of 1991 as she disagreed with its contents. Ms Larsen’s overall performance rating was marked as a 4, meaning that her performance met business requirements, but improvements were expected in noted areas. The appraisal indicated that Ms Larsen needed to refocus her efforts on assigned tasks in order to produce work with quality appropriate to the position. Mr. Baniuk said that Ms Larsen’s pay equity activities would not have influenced the rating, nor was she treated any differently in her performance appraisal, because of her pay equity activities. As a result of Ms Larsen’s refusal to sign the appraisal, he met with her and Mr. McDowell to discuss her concerns about the appraisal. She still declined to sign the appraisal, so the document was sent to human resources with a covering memo from Mr. McDowell to form part of her personnel file.

48. Mr. Baniuk said he became aware shortly after he joined the L.C.B.O, that Ms Larsen had filed a pay equity complaint, although he did not have any direct involvement in this area other than to implement the terms of the settlement that had been reached between the L.C.B.O. and Ms Larsen. Mr. Baniuk described his working relationship with Ms Larsen and the other BSAs as professional however, he found it was:

... difficult to say or do anything that may be construed by the BSAs as being a form of harassment or denial of rights and privileges. Frankly, it became difficult for myself and others to even say hello or good morning because I never knew how that was being interpreted. If you didn’t say anything, you didn’t know how that was going to be interpreted. Management found it difficult dealing with these individuals including Ms Larsen.

When asked how other managers interacted with Ms Larsen and the other BSAs, Mr. Baniuk said that other managers were expected to behave professionally, but they were also concerned that anything they might say to the BSAs would be construed as harassment or denial of equal treatment.

49. With respect to the red-circling, he understood this to have been stated in the terms of settlement reached between the L.C.B.O. and the BSAs. The job class had been re-evaluated, resulting in a lower pay scale. Since Ms Larsen’s pay was higher than the re-evaluated pay scale, her salary was red-circled. Other positions were also reviewed, including the SPA, Planning Analyst, Systems Programmers and Systems Consultants. The review of positions was done to “calibrate jobs with the new organization”.

50. Mr. Baniuk said that at the time of the re-evaluation, consideration had been given to eliminating the BSA category altogether, but it was felt that it would be interpreted by the BSAs as harassment or retaliation because of their pay equity activities. A complaint concerning retaliation was nevertheless filed by the BSAs because of a letter he sent in March 1992 about the insubordination of three of the BSAs who had attended a meeting in spite of their supervisor’s refusal to allow them to do so. (This is the same letter that Mr. Virdo testified to in his evidence.) Ms Larsen was on sick leave at the time of the meeting and was not a recipient of the letter; however, she joined the BSAs in their complaint to the Pay Equity Commission. Under the terms of settlement reached between the L.C.B.O. and Ms Larsen, the parties would work together to finalize a career action plan. The L.C.B.O. would endeavour to provide her with career development opportunities in conjunction with her plan, subject to the L.C.B.O.’s organizational goals and needs. Finally, Ms Larsen’s past experience, both inside and outside of the L.C.B.O. would be considered for career opportunities. Mr. Baniuk was not involved in the career planning process but was apprised of the progress and results. His understanding was that agreement could not be reached between the L.C.B.O. and Ms Larsen concerning her career action plan because Ms Larsen’s expectations were beyond the capability of the organization in terms of its organizational goals and needs.

51. Mr. Baniuk said that in June 1992 he prepared a document for the Vice-President indicating which positions he felt could be targeted for reduction, either because they were redundant and/or because their incumbents exhibited poor performance levels and low productivity. The positions identified for reduction were: Manager, Quality Assurance, BSA, SPA, Administrative Assistant, Clerk 5 and Operations Data Analyst. Ms Larsen was included on the list because there was little or no work for her skill set or for BSAs in general. The work could be performed by systems consultants or planning analysts. Furthermore, Ms Larsen’s last performance review was at a level 4 and her productivity was low. He testified that pay equity did not play a role in the preparation of the list of candidates and positions for reduction. The organization decided not to implement the reductions at that time, but it was not due to pay equity. In the fall of 1992, Mr. Baniuk helped to prepare responses to the “Cost Cutting Measures Q & A” for the IT division wherein he again identified positions that could be targeted for reduction. Again the factors considered were redundancy or performance. The positions listed for reduction were: Systems Consultant, BSA, SPA and Production Control Clerk. Ms Larsen was again on the list for the same reasons as before. Again, no reductions took place because the M.C.C.R. had decided not to proceed. By the time the “New Beginnings” package was offered, Mr. Baniuk had left the L.C.B.O.

52. Mr. Baniuk was cross-examined extensively on the work performed by BSAs. Mr. Baniuk maintained his position that the BSAs workload was ever-decreasing due to more user-friendly technology and that the needs of the organization had changed, resulting in the BSA position becoming redundant. He acknowledged that the transfer of technology had not been completed by the time he left but that again, the BSA position was redundant, in his mind, as far back as 1991. Ms Larsen asked Mr. Baniuk a series of questions concerning her contention that BSA duties had been transferred to the SPA. Ms Larsen’s cross-examination on this point was incomplete and was of no assistance to us. Ms Larsen asked Mr. Baniuk if he ever thought she was capable of doing the job of an SPA. His response was “No I don’t think I thought of it in those terms”. Ms Larsen then moved on to ask questions concerning the use of contractors and consultants. Again, Ms Larsen’s cross-examination failed to elicit any information which established her view of the case.

53. Ms Larsen asked a series of questions concerning her performance appraisal and the negative comments that had been made about her performance. Mr. Baniuk acknowledged that he was aware that Ms Larsen had submitted a written rebuttal to the performance appraisal. He was asked by Ms Larsen to read out portions of her rebuttal but was not asked any questions concerning its contents.

54. Ms Larsen then introduced the “L.C.B.O.’s Administration Manual section: Job Evaluation/Salary Administration, subject: Performance Appraisal General” through Mr. Baniuk. We admitted the document as evidence as Ms Larsen stated that this document would lay the foundation for further questions. Ms Larsen then asked Mr. Baniuk to read certain portions of the document to the Tribunal but then failed to ask him any questions concerning the Administration Manual. We did not find this helpful at all as Ms Larsen then moved on to ask Mr. Baniuk other questions on other issues. She did not challenge his statements that he felt the BSAs construed every action of management interaction with them as retaliation. Further, Ms Larsen’s cross-examination failed to establish any contradiction in Mr. Baniuk’s evidence or put him on notice of any contradictory evidence to be raised in response.

55. Following the conclusion of Mr. Baniuk’s examination-in-chief and cross-examination, members of the Tribunal asked questions concerning comments contained in Ms Larsen’s performance appraisal which Mr. Baniuk clarified. Mr. Baniuk was asked if the L.C.B.O. had a policy regarding training of incumbents in order to upgrade their skills for other positions. Mr. Baniuk said that he believed that there was a policy to offer opportunities to all employees. The L.C.B.O. staffs its positions through a competitive job posting process. He explained that if an employee was in a redundant position, he or she could compete with others for a posted job. Also there was a career planning function that assisted all staff in planning their career, not just for the job, but also for preparing an action plan for training. An employee cannot be placed into another position without having gone through the competitive process as that is the policy of the L.C.B.O.

Ms Larsen’s Case

Gail Wells

56. Ms Wells was employed with the L.C.B.O. as a BSA and then promoted to a Senior BSA position. She was hired through a competitive process by Ron Laurie who was then the hiring manager for the BSA group. Some time after Ms Wells commenced her career at the L.C.B.O., she was provided with a Selection Criteria Question and Answer sheet for the BSAs by Mr. Laurie as she participated in a hiring panel for a BSA. She testified that she had been asked the same questions when she was being interviewed. It outlined the skill sets required for the position, which included structured analysis and design, project estimates, project management, structured methodologies, good listening skills and data flow diagramming. Ms Wells, using a position description for the position of BSA as an aid, described her job duties as: preparing requests for proposals, conducting feasibility studies, cost analysis, assisting and acting for various managers. She had “functional” staff, that is, she headed projects where users and other staff functionally reported to her. She said that “the job description says assists, but we did prepare and acted as quality assurance managers for projects.” She performed post-implementation reviews and strategic planning. She would solicit business from departments within the company. She would assist managers in finding solutions to meet business requirements and information needs and acted like a mentor to junior staff. She also managed projects from the study phase to the implementation phase and directed staff through the process.

57. Ms Wells testified that she had worked with Ms Larsen and that Ms Larsen had headed up the request for proposals for the purchase of certain data packages. One was called Accelerator and the other, Stratus. She was also involved in pay equity activities along with Ms Larsen. In May 1989, the BSAs worked together on responding to a pay equity questionnaire.

58. Ms Larsen had begun to ask a series of questions related to the contents in the BSA pay equity questionnaire and similarities in the job descriptions of the BSA and the SPA when Respondent’s counsel, Mr. Johnston objected. His objection was firstly based on relevance of the questions being asked to the matter before us. Ms Larsen replied that she had alleged that the L.C.B.O. systematically eliminated the BSA position after the BSAs had contacted the Pay Equity Commission. The purpose of her questions was to show how the BSA position evolved into redundancy and that it occurred after the BSAs had contacted the Pay Equity Commission. Mr. Johnston then objected to these questions based on the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.) which prevents a party from raising issues in chief upon which they have previously failed to cross-examine.

59. The Tribunal, recognizing that Ms Larsen was unrepresented and in order to ensure fairness for both parties in this proceeding, had proposed to adjourn the next day of hearings in order for the parties to prepare submissions on the following options:

60. rule that the Browne v. Dunn rule had been violated and not allow the questions;

61. rule that as an administrative tribunal we have the flexibility to control our own proceedings and are not bound by the strict rules of the court. As such we could allow the questions and allow full right of reply; or

62. stop Ms Larsen’s examination in chief of her witness and of the presentation of her case as she has barely begun it and ask the L.C.B.O. to recall the witnesses in order for her to have the opportunity to put her case properly before the witnesses.

Immediately after the options were presented to the parties, Ms Larsen told the Tribunal that she was prepared to present a modified case because she did not want to have to recall this witness at a later date, asked the panel to rule in favour of Mr. Johnston’s Browne v. Dunn objection and asked that the case go forward. Ms Larsen was asked by the panel if she fully understood the implications of her request in that her questioning of witnesses might be limited. She said she did and it was on that basis that she proceeded to continue questioning Ms. Wells. In our view, Ms Larsen’s election, made in spite of the concerns expressed by the panel, severely limited her ability to put her case fully before us.

60. Ms Wells testified that the SPA position did not exist prior to May 1991. When the SPA position was posted, she did not apply for it as she believed the duties were the same and the pay grade level was the same as her existing BSA position. It was only around October 1991 that she found out that the BSAs were to be reclassified and a new job description for the position had been developed. In 1991, the BSAs had no idea that their job would be made redundant. Ms Wells did not know that the job had become redundant until she received her letter of termination on September 2, 1993.

61. Ms Wells was then asked a series of questions detailing work she had done as a BSA. The questions put to Ms Wells set out a chronology of events at the L.C.B.O. concerning the BSAs and related pay equity activities:

∙ May 1989 - Pay Equity Questionnaire completed

∙ June 1990 - Pay Equity Plan posted

∙ Aug. 1990 - Application to the Pay Equity Commission alleging a

violation of section 7(1) of the Act

∙ March 1991 - Review Officer’s Order

∙ May 1991 - New job description for BSAs

∙ Oct. 1991 - BSAs advised that the BSAs had been reclassified

∙ Nov. 1991 - BSAs file a section 9(2) complaint with the Commission

∙ Feb. 1992 - Memorandum of Agreement concerning the s. 7(1)

application

∙ June 1992 - Memorandum of Settlement concerning the s. 9(2) complaint

∙ Sept. 1993 - Ms Wells terminated

62. At this juncture, Ms Larsen attempted to enter her pay equity Application 0494-94 as an exhibit. Mr. Johnston objected. Ms Larsen argued that she wished the Application to be made into an exhibit because the “application contains a compilation of facts and events as they occurred by each one of us and mutually compiled. It is the core of the hearing”. Mr. Johnston’s objection was that the pleadings are not facts; they are assertions. Parties are obliged to prove those assertions, not just to enter pleadings as a fact. He further asserted that insofar as some of the pleadings related to allegations against the L.C.B.O. made by Ms Wells, and since Ms Wells had settled her complaint with the L.C.B.O., those allegations were irrelevant to the matters before this Tribunal. The Tribunal ruled that admitting the pleadings as an exhibit would not be helpful to us. The witness could refer to them in giving her testimony concerning certain events if she wished. Ms Larsen chose not to ask any further questions in-chief of Ms Wells.

63. Mr. Johnston’s cross-examination of Ms Wells was extensive. He asked a series of questions concerning the Pay Equity Questionnaire and Ms Wells stated that Ms Larsen had prepared the document as she was the designated writer for the BSAs but that all of them had agreed to the content. Ms Wells said that Ron Laurie was the supervisor at the time the Questionnaire was being completed and had signed it. The BSAs assumed that by signing it, he had agreed with its contents and that it accurately reflected the job duties of a BSA. Ms Wells stated that the BSAs had disagreed with the L.C.B.O.’s assessment of the pay grade of the BSAs at a Grade 8 and that resulted in an application to the Pay Equity Commission. A Review Officer had ordered that the pay grade should be at Grade 9. The BSAs disagreed and thought it should be higher so they filed an application with the Tribunal. Ms Wells acknowledged that the L.C.B.O. had also disagreed with the Review Officer’s Order and had filed a cross-application with the Tribunal seeking to overturn the Order. The L.C.B.O. believed the pay grade for BSA’s should be at Grade 8. This dispute was resolved by the L.C.B.O. and BSAs agreeing to an external consultant coming in to conduct a review of the job and determine once and for all what the appropriate pay grade should be for the BSAs. Ms Wells understood the agreement to mean that if the consultant’s analysis resulted in a higher pay grade, the BSAs would be paid at a higher grade. If the consultant’s analysis resulted in the BSAs being in a lower pay grade, the BSAs would still be paid at a Grade 8.

64. Ms Wells said she was unaware that the L.C.B.O. had reclassified her position until she received a letter about it in Feb. 1993 advising of the red-circling of BSAs and the reclassification of the BSA position. She acknowledged that she was advised in March 1992 that a re-evaluation of the BSAs would be occurring. When challenged on this point, Ms Wells said she had been told there was a 60 point change in the evaluation but that she didn’t think it would affect her classification. She didn’t believe re-evaluation was the same as re-classification. Mr. Johnston challenged Ms Wells’ understanding of the memorandum of agreement in that it stated clearly therein that red-circling may be an outcome of the re-evaluation of the BSA position to which the parties had agreed. Ms Wells responded that she assumed the L.C.B.O. wanted to protect its position but wasn’t sure why that clause was in the agreement.

65. Ms Larsen’s sole question of Ms Wells on re-examination asked who was the Grade 8 comparator.

Benita Larsen

66. Ms Larsen then called herself as a witness. For the most part, Ms Larsen had a prepared list of questions which she asked and then answered, combined with a narration of events. She was hired by the L.C.B.O. into a BSA IV position on March 21, 1988. She had been interviewed for the position by a panel consisting of Ron Laurie, John Kaharchuk and Tania Zablinski. She said that Mr. Laurie had told her that of all the people he had ever interviewed her answers were the best. She subsequently also sat on a panel selecting candidates with Mr. Laurie and Gerry Steggurda and had been provided with the Selection Criteria, Q & A. Ms Larsen testified that she was the designated writer for the Job Evaluation Questionnaire because Mr. Laurie had made it clear he wanted to promote her to a manager position when he got his promotion to a directorship. The contents of the questionnaire were developed as a group effort.

67. Ms Larsen then referred to her Application and attempted again to file it as an exhibit as “confirmation of facts, events and issues to support our pay equity application”. Mr. Johnston repeated his previous objections concerning the admission of the pleadings as evidence. The Tribunal ruled that Ms. Larsen could use the pleadings to provide assistance in giving testimony as to the events that took place. She was again reminded that the pleadings are allegations which must be proved and not facts. Ms Larsen then read to the Tribunal sections of the Pay Equity Questionnaire to illustrate her duties and responsibilities as a BSA IV. She had worked as an analyst and a programmer in an MVS environment.

68. With respect to her allegations of harassment, Ms Larsen testified that on January 20, 1991, she broke a molar and had asked Mr. Steggurda for time off to see a dentist. Her request was denied. Ms Larsen referred to several other incidents which were in her Application and which she felt were indicative of the “pervasive attitude” towards her after she commenced the pay equity activities.

69. Ms Larsen testified about her interaction with Murray Kane on pay-equity related matters. Ms Larsen testified that there was always analysis work available at the L.C.B.O. and described the type of work she did on various systems. She said that she had requested and had been denied permission, in 1990, to go to a PC Prism training course. This was a tool the L.C.B.O. was using for a particular project. She was twice denied an opportunity to attend the Analytical Techniques Course. She was refused a data flow diagram course. To the best of her knowledge, neither of her career action plans were ever approved by management. She said that in her first career action plan, she had been creative in her selection of job titles but then revised them in her subsequent plan in order to conform to existing job titles within the IT division. She felt that the L.C.B.O. had failed to provide her with career development opportunities in accordance with the Memorandum of Settlement. She also felt the L.C.B.O. failed to take into account her past experience.

70. Ms Larsen testified that she filed the first pay equity application related to s. 7(1) on August 31, 1990. She said that in retrospect she believes the BSA IV position was re-written, re-evaluated and re-classified on May 3, 1991. She received the revised BSA job description October 10, 1991. She was advised of the re-evaluation in June 1992 when she returned from sick leave. She did not learn of the re-classification of the position until February 1, 1993. She was never informed, while an employee of the L.C.B.O., that the BSA position had become redundant. The first she heard of it was when she received her letter of termination on September 7, 1993.

71. Ms Larsen testified that contractors were employed at IT because there was more work to do as a result of systems conversions. In fact, a number of systems people were hired by other divisions. She felt she had the skills to do the job for which they were hired. Ms Larsen described various projects that she had worked on and the skills required to perform them. She also recounted her experience with other employers.

72. Ms Larsen testified that she received her very first appraisal, covering the period of March 21, 1988 to March 21, 1989, from Mr. Steggurda and Mr. Layton, Director, Information Services. The appraisal, which she signed, was entered as an exhibit. Her overall performance was rated at 2 which means, according to the evaluation form, “Always meets job requirements frequently exceeds them”. In all areas, she was rated at either a 1 or 2, which are at the top of the rating scale. Ms Larsen signed this appraisal as she agreed with its contents. She refused to sign her performance appraisal of November 1991 because she stated that she had received advice that she could be fired and she felt she was trapped. She wrote a rebuttal to the performance appraisal and read to the Tribunal portions of the rebuttal relating to the projects she had worked on. She felt that the difference in these two performance appraisals and the work she did was indicative of the L.C.B.O.’s assessment of her work prior to and after her pay equity activities.

73. Ms Larsen recounted an incident she felt amounted to an attempt to entrap her. She received minutes of the IT Arthur Project meeting of June 8, 1993 which she had attended. She had been designated as the person to follow-up on the “Buyer 500" changes. She objected to this being in the minutes because the item was not discussed at the meeting. Several pieces of correspondence followed resulting in the minutes being revised and that item being deleted. She was concerned about this because firstly, the item was never discussed at the meeting and secondly, the changes she was being asked to make were “direct changes to production data i.e. real live accounting data. Without an audit trail this is a firing offence”. Ms Larsen gave no further evidence on this point.

74. Ms Larsen testified that after Vic Baniuk resigned in May 1993, Marlene Adelson took over work assignments and acted as the Manager, Resource Pool. She felt Ms Adelson did an excellent job but “since our pay equity application of August 1990, too much time had already passed and too many events had occurred to turn the situation around”.

75. In cross-examination by Mr. Johnston, Ms Larsen acknowledged that when she was first hired, there was a BSA III position and that there had been some discussion about collapsing the BSA III and BSA IV together but she could not recall when. She also acknowledged that there had been a position titled, Manager, BSA and that it had been abolished but could not recall when. Mr. Johnston vigorously challenged Ms Larsen’s assertions that the job duties of the BSAs were assumed by the SPAs. Ms Larsen maintained her position that the duties were similar if not the same in many respects. Ms Larsen acknowledged that although the Senior Planning Analyst (SPA) job description was signed in May of 1991, she had not received a copy of it until much later. In fact, Deborah Dunnigan had been hired October 1, 1990 into the position of SPA.

76. With respect to the career action plan, Ms Larsen said she felt it was inappropriate for Mr. Haytchouk to have been involved with it. She felt he was more of a peer as she felt he was only partly fulfilling the duties of Manager, Resource Pool as he did mostly the work of a SPA. Mr. Johnston reviewed with Ms Larsen the list of courses she was able to attend. Ms Larsen was asked questions concerning the training courses to which Mr. Steggurda had refused to send her. She could not recall what, if any reasons, were given for the refusal but she believed the courses were all work-related and that the refusal to send her to those courses amounted to reprisal.

77. Ms Larsen acknowledged that the persons she said had been hired by the L.C.B.O. as “systems people” were managers and worked for specific divisions and not IT. She admitted that she had no direct knowledge of what work assignments had been given to the contractors but was able to cite which consultants had been assigned to which projects. She did acknowledge that some consultants were representatives of computer vendors who came along with the software packages the L.C.B.O. purchased.

78. She said she believed that the poor performance appraisal conducted by Bill McDowell amounted to an act of reprisal by him for having filed the s. 7(1) application but felt that he was acting under orders. Ms Larsen was cross-examined extensively concerning this point. When asked who gave Mr. McDowell orders to take reprisal action against her, Ms Larsen replied that she had no direct knowledge of this. Ms Larsen also said Mr. McDowell was not involved with her s. 7(1) pay equity application. Mr. McDowell had told her that by signing the appraisal, she was not agreeing with the contents. Ms Larsen refused to do so as she was concerned about the misinformation it contained about her work. She said the misinformation was, to a degree, caused by the switch to matrix management and named Moira Varmazis (Systems Manager, Distribution Services) as a source of misinformation but acknowledged Ms Varmazis was not involved in any of the pay equity related activities. It was her view her treatment by management changed after she filed the application. Asked if she felt matrix management contributed to retaliation, Ms Larsen replied that it was a grey area. “It could have been something they wanted to try because in business, we’re always trying new things, that’s how we grow. If it were reprisal, it was easier to complicate communications.”

79. With respect to Ms Larsen’s allegation of entrapment, Mr. Johnston asked a series of questions concerning the minutes of the Arthur project. Ms Larsen felt that this incident had the potential to be reprisal against her for her pay equity activities. The person who took minutes of the meeting was Heather Babut and the Chair of the meeting was Ian Bruce. Ms Larsen was asked if either of them had been involved in any of her pay equity complaints. She said they were not. When asked if she felt either one of them had been under orders to entrap her, Ms Larsen said “Definitely not. They were oblivious.” When asked if there was anyone on the project team she felt was under orders to entrap her, she named Michael Rassenti. He had input into the minutes. Ms Larsen was unable to say who gave him orders to entrap her.

80. Ms Larsen acknowledged she was aware of the “New Beginnings” program and that Ron Laurie had taken it and suggested to her that she should take the programme. She decided not to take it. She subsequently received a letter of termination dated September 2, 1993. Ms Larsen acknowledged that she had been generally aware that there were organizational changes going on and that there had been lay offs in the organization.

81. In her re-examination, Ms Larsen stated that at the time the “New Beginnings” programme was offered, she was not aware that the BSA position had become redundant. Ms Larsen said she felt Michael Rassenti was involved in retaliation because Ms Babut, who took the minutes of the meeting, told her that Mr. Rassenti had personally asked her to add the action item which identified Ms Larsen as being responsible for the Buyer 500 follow-up.

Argument

82. Counsel for the Respondent, Mr. Johnston, asked the Tribunal to take into account five general principles when considering the evidence presented in this case. Firstly, section 9 of the Act is intended to protect employees from suffering a penalty because they have exercised their right. It is not intended to deprive an employer of the right to manage its business. Secondly, the timing of events is not sufficient on its own to prove a violation of section 9. Thirdly, a person’s perception of events is not sufficient to prove a violation of section 9. Instead, the Tribunal must examine the objective circumstances surrounding the events. Fourthly, the test to be used is the balance of probabilities, that is, whether it was more probable that the action was unrelated to the pay equity activity than that it was related. Finally, the Tribunal should view the termination not in its individual sense but in the context of the larger organization and the issues affecting it at the time. Mr. Johnston argued that given the evidence, the L.C.B.O. has met its burden of proof as the evidence shows that Ms Larsen’s termination was entirely unrelated to her pay equity activities. He said that the termination was part of the restructuring of the IT Division which had invested in, and upgraded, its technology and as a consequence of those changes, required employees to have greater and/or different technological skills. Mr. Johnston asked us to keep in mind the fact that the restructuring of the IT Division took place within the context of the downsizing of the L.C.B.O. in its entirety.

83. Ms Larsen argued that she had established a prima facie case that section 9(2) of the Act had been violated and that it was up to the L.C.B.O. to prove to the Tribunal, on a balance of probabilities that her termination was not connected to any involvement with her pay equity activities. Ms Larsen recounted the chronology of events that had occurred. It was only after she had become involved in pay equity activities that she received a poor performance appraisal, although previously, she had received overall ratings of 2 when 1 was the top rating; that she was refused requests for time off; that she, as well as other BSAs involved in pay equity activities, found that their jobs were re-evaluated and their pay red-circled; that work previously assigned to BSAs was then assigned to consultants and contractors; and that the BSAs were eventually declared redundant and downsized. Ms Larsen argued that a review of the evidence would reveal that the L.C.B.O. saw the issues of downsizing, and the pay equity matters arising from the classification of the BSA IVs, as intertwined and she asked the Tribunal to find that the L.C.B.O.’s termination decision was influenced by or tainted by the participation of BSA IVs, including her own participation, in pay equity activities. Alternatively, she argued that if the Tribunal is convinced that the L.C.B.O.’s downsizing activities were a reason for the elimination of the BSA position, that we find that there is clear evidence that anti-pay equity animus tainted these reasons. In support of this argument, Ms Larsen referred us to briefing notes which had been prepared by the L.C.B.O. for the M.C.C.R. concerning the elimination of the BSA positions and the pay equity activities of the BSAs.

Finding

84. Both Mr. Johnston and Ms Larsen cited considerable case law on the subject of reverse onus, the issue of taint and acts of reprisal. These cases include: Great Lakes Brick and Stone Ltd. (1994), 5 P.E.R. 1; New Liskeard Board of Police Commissioners (No.2) (1991), 2 P.E.R. 65; Townships of Belmont and Methuen (1994), 5 P.E.R. 5; The Barrie Examiner [1995] O.L.R.B. Rep. October 745; Commonwealth Construction Company, [1987] O.L.R.B. Rep. July 961; Precision Engineering Company [1994] O.L.R.B. Rep. May 596; Naomal Fernando v Alberta Union of Provincial Employees [1985] C.H.R.C. Vol. 6, Decision 417, para. 21226 - 21360; Peterborough (Clow) (No. 3) (25 June 1996) 0545-94; 0515-94 (P.E.H.T.).

85. The Tribunal in Peterborough (Clow) (No. 3) finds that the onus placed on the employer is to establish, first, that the reasons given for the actions taken by management towards an employee including discharge or discipline are the only reasons and second, that these reasons are not tainted by an anti-pay-equity animus. We concur that this two-fold test is appropriate under the Act. In this instance, the L.C.B.O. must persuade us on a balance of probabilities that Ms Larsen’s treatment and eventual termination were not related to her pay equity activities.

86. Having adopted this test, we must point out that as the employer presents its evidence to discharge its onus of proof, it is still the responsibility of the employee (or her counsel) to challenge that evidence whether through cross-examination and/or through the presentation of her case’s evidence.

87. The Tribunal in Peterborough (Clow) (No. 3) also stated at para. 48:

Whenever the timing of the discipline or discharge coincides with the enjoyment or seeking of a benefit, it should be scrutinized closely and false motives should not be allowed to masquerade as legitimate ones. If an employer has implemented a genuine management objective, even though it coincides with the enjoyment of a benefit, the employer will be able to discharge its onus so long as the employer’s conduct is not tainted with anti-pay equity animus.

88. We have adopted this approach in reviewing the evidence before us in this case. We will first address Ms Larsen’s allegations concerning her treatment while employed at the L.C.B.O. which are outlined in paragraph 2 in this decision. The evidence, as summarized throughout this decision, leads us to the conclusion that there is no evidence to substantiate the allegations set out in paragraph 2 and contained in Ms Larsen’s Application 0494-94. We find that there is no evidence that Ms Larsen’s treatment by the L.C.B.O. was as a result of anti-pay equity animus.

89. We believe that as a result of the detailed summary of the evidence in this decision, it is unnecessary to recount the evidence as it relates to each allegation, however, as an example of why we ultimately reached our decision to dismiss Ms Larsen’s Application, we will highlight the evidence with respect to two of the allegations she has raised: that her access to courses, conferences and professional associations were severely curtailed and, that her position was red-circled because of anti-pay equity animus. The evidence is that Ms Larsen did attend a number of courses during the period of time in question and that the L.C.B.O. was able provide plausible explanations for why Ms Larsen might have been denied attendance at other courses. Ms Larsen was unable to provide us with any evidence linking the refusal of a course to her pay equity activities.

90. With respect to the red-circling of the BSA position, this was clearly stated as a possibility in the Memorandum of Agreement signed by the parties on February 12, 1992. If the BSAs were concerned about the possibility that the positions would be red-circled, they should not have signed the agreement. To say now, as Ms Wells did in her testimony, that she felt the L.C.B.O. put in that clause because they wanted to protect their position but was not sure why, and then for Ms Larsen to draw the conclusion that the red-circling of the BSA position constituted retaliation for pay equity activities strikes us, at best, as naive and at worst, as disingenuous.

91. Furthermore, we find that the L.C.B.O. has discharged its onus in proving that Ms Larsen’s termination from employment was unrelated to her pay equity activities. Although there is a discrepancy between Mr. Virdo’s evidence and the documentary evidence as to the actual date of the Mercer’s report on the IT division, the evidence is clear that as early as 1987 a major organizational shift was about to begin in the division. From that time forward, a number of positions within the IT Division, including the BSA position, were made redundant. Further, this change was occurring within the context of a much larger downsizing effort within the L.C.B.O. Ms Larsen did not dispute that the L.C.B.O. was engaged in a major downsizing effort which affected the IT Division.

92. The evidence is also that the L.C.B.O. had hoped that employees would take advantage of the New Beginnings programme in order to obviate the need for further terminations. Once the New Beginnings programme had taken its course, the evidence is that further downsizing, by means of termination, occurred affecting a number of positions including the BSAs. Ms Larsen, in her evidence said that Mr. Laurie, her immediate supervisor, took the programme and suggested to Ms Larsen that she take advantage of the programme as well. It is arguable that the L.C.B.O. could have clearly indicated to those persons likely to be affected by downsizing efforts that the New Beginnings programme was recommended but we also have evidence, which is undisputed by Ms Larsen in cross-examination, that management was concerned that every action they took with respect to the BSA position would be misinterpreted by them as retaliation. It is therefore, perhaps understandable why the L.C.B.O. did not clearly indicate to Ms Larsen during the New Beginnings programme that her position was to be made redundant.

93. There is also no evidence that the decision to terminate Ms Larsen’s employment was tainted in any way by her pay equity activities. Ms Larsen alleged that evidence of taint should be found in the contents of the briefing note that L.C.B.O. management prepared for the M.C.C.R. We find that, given the fact that Ms Larsen and Ms Wells had previously been in contact with the Minister and her office concerning the L.C.B.O., the contents of the briefing note were entirely appropriate and not indicative of anti-pay equity animus. Mr. Johnston, counsel for the L.C.B.O., directly asked management witnesses whether their actions were motivated in whole or in part by their knowledge of Ms Larsen’s pay equity activities. The responses of witnesses were consistently “no”. Ms Larsen had the opportunity to challenge these witnesses on this point. She failed to do so.

94. We therefore dismiss Ms Larsen’s Application (0494-94) and allow the L.C.B.O.’s Application (0498-94) setting aside the Review Officer’s order dated March 30, 1994 which found that the L.C.B.O. violated section 9(2) of the Act.

Dated at Toronto this 20th day of February 1997:

Mary-Woo Sims Vice-Chair

Bruce Budd Member

Margaret Kvetan Member