Pay Equity Hearings Tribunal
PE-0590-96 BICC Phillips Incorporated, Applicant v. Group of Employees, Respondent
Before: Mary Anne McKellar, Vice-Chair, and Members Margaret Kvetan and Geri Sheedy
Cite as: BICC Phillips (7 October, 1997) 0590-96 (P.E.H.T.)
DECISION OF THE TRIBUNAL
INTRODUCTION
1In this Application, BICC Philips Inc. (“the Employer”) seeks to have the Tribunal “revoke Review Officer Ron Chyczij’s Order dated January 18, 1996, and order that because there has been a change of circumstances in the establishment, the pay equity plan is to be revised.”
2The Respondent is a Group of Employees who occupy non-bargaining unit positions in the Employer’s Trenton, Ontario establishment. In their Response, they take the position that the Chyczij Order should stand, and in addition, that “the company [should] post a new plan based on revised circumstances along with maintenance actions”.
FORM OF PROCEEDINGS
3Following the close of pleadings in this matter, the Tribunal convened a Pre-Hearing Conference on September 18, 1996. The Respondent failed to attend. It also failed to attend a second Pre-Hearing Conference scheduled for January 7, 1997.
4On April 10, 1997, Counsel for the Employer wrote to the Tribunal:
It is my understanding that our client is the only party involved in this Application. Therefore, rather than proceed by way of a Hearing, I suggest that written submissions be made on the evidence of our client and our client could then be available to respond to any questions that the Tribunal members may have. It may be a more efficient manner of proceeding than scheduling a full Hearing.
5The Tribunal’s response was contained in a letter from the Deputy Registrar:
The panel assigned to conduct this Hearing has directed me to advise you that the Group of Employees has until May 9, 1997 to indicate, in writing, whether they consent or object to proceeding in the manner proposed by Ms. Hoglund [Employer Counsel]. Should the Group fail to respond by that date, their silence will be construed as consent to Ms. Hoglund’s proposal.
If the Group consents to Ms. Hoglund’s proposal, the Employer’s evidence must be served on the Group and filed with the Tribunal by June 20, 1997. Upon review of those materials, the panel will determine whether any portion of the Hearing should be conducted viva voce.
6The Respondent remained silent in the face of this correspondence. By letter dated June 18, 1997, the Employer forwarded to the Tribunal the affidavit of Susan Atkinson, the Employer’s Director, Human Resources. A Statement of Service (Form 3) was also filed, indicating that this document was served upon the Respondent.
7The Respondent has not communicated with the Tribunal at any time since filing its Response to the Application.
THE ISSUES
8The Chyczij Order found that the Employer had failed to maintain pay equity in respect of the Group and ordered it to do so. The Tribunal can only revoke that Order if satisfied that pay equity has been maintained in accordance with the posted pay equity plan. To be so satisfied, the Tribunal must be able to answer one of the following questions in the affirmative:
(i) Are the job rates for the female job classes at least equal to those of the male job classes identified under the plan as performing work of equal or comparable value to them and has this consistently been the case from the date that pay equity was achieved under the plan?
(ii) If the answer to (i) is negative, is there any justification in the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”) for this difference in job rates?
(iii) In any event, did the conduct of the Pay Equity Office induce the Employer to fail to maintain such that the Chyczij Order should not stand?
THE DECISION
9We decline to revoke the Chyczij Order. If the Employer is of the view that the pay equity plan in the establishment is not appropriate due to changed circumstances, it may prepare and post a revised plan in accordance with the Act.
REASONS
Weight given to the Atkinson affidavit
10The affidavit contains two kinds of assertion: assertions of fact and assertions of legal conclusion. We accept as true all of the assertions of fact and also assume that the facts asserted constitute the Employer’s best case. We accord no weight whatsoever to the legal conclusions asserted, because those conclusions are ones for the Tribunal alone to draw on the basis of the facts asserted. If the facts asserted are not sufficiently cogent to permit us to draw those suggested conclusions, it is not the role of the Tribunal, in the absence of a participating respondent, to engage in an examination of the affiant to test the accuracy of her factual assertions or to permit her the opportunity to bolster them.
Have the job rates remained at least equal?
11Although Atkinson states in Paragraph 17 of her affidavit that she believes pay equity has been maintained, she never clearly states that the job rates for the female job classes have consistently remained at least equal to the job rates for the comparably valued male job classes. Indeed, she states as an alternative position, that if differences in job rates did occur, they were justifiable under the Act. Furthermore, the paragraphs of her affidavit chronicling the events that allegedly constitute changed circumstances in the establishment sufficient to warrant a revising of the plan, strongly suggest that discrepancies in the job rates of female job classes and comparably valued male job classes must have occurred. On the basis of the affidavit evidence tendered, we are unable to answer the question posed in Paragraph 8(i) above in the affirmative.