Pay Equity Hearings Tribunal
0629-97 Group of Employees of the Riverdale Hospital, Applicant v. Riverdale Hospital, Respondent and Canadian Union of Public Employees, Local 79, Respondent
Before: Heather MacNaughton, Vice-Chair, and Members Bruce Budd and Charles Taccone
Appearances: Shireen E. Hooshangi, Fitzroy Magloir and Ashoka Boodhoo for the Group of Employees; Lois Cauthers and Stav DAndrea for Riverdale Hospital; and Mary Cornish and Heide Trempus for Canadian Union of Public Employees, Local 79
Cite As: Riverdale Hospital (G.O.E.)(No. 2) (October 20, 1997) 0629-97 (P.E.H.T.)
DECISION OF THE TRIBUNAL (October 20, 1997)
[1]. On August 22, 1997 the Tribunal heard a motion to dismiss the January 1997 Application filed by a group of Registered Practical Nurses (RPNs) employed at Riverdale Hospital (the Hospital). The Application was self-styled a re-Application because the same group of RPNs had filed an earlier application with the Tribunal which was dismissed in our unreported decision Riverdale Hospital (G.O.E.)(No. 1), (October 17,1996) 0599-96. At the conclusion of the motion, we advised the parties that the motion was granted, the re-Application was dismissed, and our reasons would follow. These are our reasons.
[2]. The RPNs are represented by the Canadian Union of Public Employees, Local 79 (C.U.P.E.). The Hospital and C.U.P.E. negotiated and posted a pay equity plan which included the job class of Registered Nursing Assistants now known as RPNs. By operation of section 14(5) of the Pay Equity Act, R.S.O. 1990 c. P.7 as amended (the Act), the pay equity plan was deemed approved by the Pay Equity Commission. The Hospital fully implemented the deemed approved plan.
[3]. Subsequent to the deemed approval, the RPNs expressed dissatisfaction with the pay equity plan as it applied to them, and dissatisfaction with the resulting pay equity adjustment they received. In their first application the RPNs challenged the dismissal of their complaint by the Review Officer and alleged that the pay equity process undertaken by the Hospital and C.U.P.E. identified an inappropriate male comparator for their job class. In the result, they alleged, the pay equity adjustment they received was unfair.
[4]. In our decision dismissing the first application we said:
The Tribunal has provided clear direction that when a deemed approved plan is challenged, the pleadings must set out details of the allegation that the plan, or an aspect of it, does not comply with the Act. Parry Sound District General Hospital (No. 1) (1995), 6 P.E.R. 124, Parry Sound District General Hospital (No. 2) (11 July 1996; 0496-94) and Ottawa Board of Education (28 May 1996; 0473-93; 0474-93; 0485-93; 0487-94),
The Application in this case does not meet the standard that this Tribunal requires. In fact it falls far short. It baldly alleges that the employees have been treated inequitably under the Act and that the assistant chefs job is not of equal or comparable value. It gives no particulars of how the employees were treated inequitably or what flaw there was in the job evaluation rating system that gave rise to an inappropriate comparator. The Applicants seek the opportunity to cross examine the job evaluation committee to discover those flaws. That is just the sort of fishing expedition that the Tribunal sought to avoid by forcing parties to particularize their allegations.
[5]. Our decision of October 16, 1996 was a dismissal of the pleadings for failing to disclose sufficient particulars to support a prima facie case for review of a deemed approved plan. After that decision the RPNs filed their re-Application which, together with their Reply, purported to particularize their allegations that the pay equity plan failed to meet a minimum standard of Part 1 of the Act. In response to the re-Application, C.U.P.E. brought a second motion to dismiss.
[6]. The essence of the re-Application is that the RPNs are unhappy with the result of the pay equity process. Unhappiness with a result is not enough for this Tribunal to examine a deemed approved plan negotiated in good faith by a bargaining agent and an employer.
[7]. Finality and certainty is important to both parties to a negotiated pay equity plan. While the Act contemplates that, in certain circumstances, individual members of a bargaining unit may apply to the Tribunal after deemed approval, the Tribunal has required that such an applicant detail in its pleadings the allegations that the plan does not comply with the minimum standards of Part 1 of the Act (Ottawa Board of Education (No. 2) (1996), 7 P.E.R. 9).
[8]. The Tribunal has reviewed in detail the pleadings filed by C.U.P.E. and by the RPNs. We have concluded that, despite the opportunities given them, the RPNs have consistently failed to meet their pleading obligation. There was nothing in the re-Application, or the submissions, which alleged facts that if proven constituted a contravention of the Act.
[9]. Further, in her submissions, counsel for the RPNs relied heavily on sections of the Act which were not applicable and which were not of assistance in persuading the Tribunal to inquire into this deemed approved plan. Despite efforts by the Tribunal, and by counsel for C.U.P.E., to direct counsel to the relevant sections of the Act, counsel for the RPNs persisted in relying on inapplicable portions.
[10]. We have concluded that the Applicants and their counsel have a fundamental misunderstanding of the Act, the pay equity process, and this Tribunals jurisprudence. We find that there is no prima facie case for C.U.P.E. and the Hospital to meet. The re-Application by the RPNs is dismissed.
Dated at Toronto this 20th day of October, 1997:
Heather MacNaughton Vice-Chair
Bruce Budd Member
Charles Taccone Member```