PAY EQUITY HEARINGS TRIBUNAL
0636-97 Group of Employees (Pay Equity Office), Applicant v. The Crown in Right of Ontario (Management Board of Cabinet), Respondent
Before: Heather M. MacNaughton, Chair, and Members Margaret Kvetan and Pauline R. Seville
Appearances: Ron Chyczij for the Applicants and Liane Brossard for the Respondent(s)
Cite As: Management Board (Review Officers) (No. 2) September 29, 1999, 0636-97 (P.E.H.T.)
DECISION OF THE TRIBUNAL, September 29, 1999
The Applicants are a group of anonymous employees who are Review Officers at the Pay Equity Office of the Pay Equity Commission. They were included in the Pay Equity Plan for Management and Excluded Employees covering the non-union employees of The Crown in Right of Ontario (“Management Board”). In pleadings prepared by counsel on their behalf, the Review Officers allege that the Amended Pay Equity Plan posted by Management Board in January of 1997 (the “Plan”) breached a number of sections of the Pay Equity Act, R.S.O. 1990 c. P.7 as amended (the “Act”). They allege, in particular, that Management Board did not use a gender-neutral comparison system, or develop the Plan using a gender-neutral approach.
In the Response to the Application, Management Board denied the allegations of the Review Officers and indicated that it intended to bring a preliminary motion. In particular Management Board requested that:
“…the Tribunal find that the objecting employees are members of a gender neutral or male dominated job class, and that issues raised by the employees, regarding the pay equity plan as amended, are therefore irrelevant to this proceeding.”
- It is the scope of the preliminary motion regarding job class that is now before us for direction. To understand the issue that has arisen, it is necessary for us to set out, in some detail, the progress of this motion to date.
The Job Class Motion
- Management Board’s preliminary motion was discussed and refined at the Pre-hearing Conference on July 3, 1997. All parties were represented by counsel. The parties agreed that the job class motion would precede Management Board’s motion to dismiss the application on the basis that it was not timely. They signed a Pre-hearing Memorandum of Agreement. The relevant portions, under the heading “The Job Class Motion” are as follows:
(6) This refers to the Employer’s motion that this application should be dismissed because the Applicants do not constitute a female job class. The Applicants dispute the Employer’s interpretation and application of the Pay Equity Act’s definition of job class.
(7) The Applicants will make any requests for disclosure required to address this motion in writing at least 45 days prior to any hearing scheduled on the motion. The Employer will make its best efforts to respond in writing to all such requests at least 15 days prior to such scheduled hearing.
(8) The parties propose that the job class motion be dealt with on a preliminary basis and a decision on it rendered prior to the panel’s hearing the timeliness motion. They further request that two days of hearing be scheduled for this purpose, and agree to exchange the names of any witnesses they intend to call at least two weeks in advance of that hearing.
On December 1, 1998, some 18 months after executing the Pre-hearing Memorandum of Agreement, new Counsel for Management Board advised that they wished to reverse the order of the preliminary motions. Counsel for the Review Officers vigorously opposed their request and advised the panel that she had relied on the Pre-hearing Memorandum in preparing her case.
In a ruling delivered orally on December 1, 1998 the panel said:
“While we acknowledge that there may be a certain logic to the timeliness motion proceeding first, both of these motions are Respondent’s motions and we cannot, and do not, wish to know the scope of the discussions at the Pre-hearing which gave rise to the Agreement with respect to the order of proceeding. We do, however, conclude that parties should abide by agreements reached by them at pre-hearings.
It would be most unfortunate for this case, and many others, to allow counsel after further reflection or after further preparation to change their position. The Rules of the Tribunal regarding pre-hearings were designed to aid the parties in preparing their case for hearing. The parties in this case did exactly what was expected of them. To change this agreement now would undermine the merit of the Tribunal’s pre-hearing process and we are not prepared to do so.”
- In the result, counsel for Management Board commenced argument on the job class motion on December 1, 1998. In her opening statement, counsel for Management Board explained that it was her position that the Review Officers were in the appropriate job class (the ALR 20 job class) when the plan was formulated in 1990. She further said that the ALR 20 job class was not female-dominated. However, the Review Officers, she understood, argued that they should be in a separate job class, which was female-dominated. She then referred to the definition of “job class” in Section 1 of the Act which is as follows:
“job class” means those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates”
Counsel for Management Board explained that she understood that counsel for the Review Officers did not dispute the application of certain of the criteria in the definition of job class. She understood that there was agreement that Review Officer positions were filled by “similar recruiting procedures” and had “the same compensation schedule, salary grade or range of salary rates” as the other positions in the job class. That narrowed the issues in dispute between the parties to: whether Review Officers had “similar duties and responsibilities,” and whether the position “required similar qualifications.” She indicated that she did not intend to lead evidence on the issues that were not in dispute, unless she heard otherwise from Counsel for the Review Officers.
Counsel for the Review Officers indicated that she was not prepared to concede, at that time, that there was no dispute as to recruiting procedures, compensation schedules and salary grades or range of salary rates. After vigorous debate and lengthy submissions the Tribunal granted a 10-minute recess to allow Counsel for the Review Officers to consult with her clients. After the recess, Counsel for the Review Officers confirmed that what was in issue was the duties, responsibilities, and qualifications of Review Officers as compared to other positions in the job class. Agreement had been reached that the other factors in the definition of job class were not in dispute,
Counsel for Management Board continued her opening, summarizing the anticipated evidence on the scope of the duties and responsibilities of the various other jobs in the ALR 20 job class and the required qualifications. She asked us to find, after conclusion of the evidence, that the Review Officers were correctly in the ALR 20 job class and that it was not a female-dominated job class.
Counsel for the Review Officers declined to give an opening address. Counsel for Management Board then commenced to call her witnesses, all of whom testified about the scope of their job duties, backgrounds and training, or those of individuals who reported to them. Management Board completed its case after calling evidence from six witnesses, all of whom were cross-examined. The Review Officers then commenced their case with a short opening and called their first two witnesses.
As a result of the extensive number of evidentiary objections during the evidence of the Review Officers’ witnesses, and the resultant rulings, it became apparent to the Tribunal that the parties had a very different understanding of the scope of the preliminary motion before us. On June 2, 1999, the Panel set out the nature of the misunderstanding and, in an oral ruling, said:
The Prehearing Memorandum of Agreement, the Respondent’s opening statement, and the evidence it has led in its case in chief, all indicate that the motion before us is whether or not the Review Officers are in the right job class. That assumes, and presumes, that the classification system that was used by the Respondents for the purpose of the pay equity plan is acceptable to the Review Officers. The issue for us to determine, therefore is: if Review Officers are not properly in the ALR 20 job class, what other of the pre-existing job classes are they more appropriately in? This characterization of the motion has not been disputed by the Review Officers to date. If the position of the Review Officers now is that the use by the employer of pre-existing job classes for the purposes of the pay equity plan is a breach of the Act, or is gender-biased, then this motion may be much broader.
The panel advised the parties that this confusion needed to be clarified before the motion proceeded any further. The Review Officers indicated that they required the assistance of legal counsel to help them clarify their position.
- A date was scheduled for argument. At that time the Review Officers indicated that it was their position that the scope of the job class motion, as set out in the Prehearing Memorandum, permitted a review of the Management Compensation Plan Job Evaluation System. Alternatively they submitted that if the motion as framed did not permit this argument, it ought to be expanded and that, if necessary, an amendment to the pleadings should be allowed. Management Board disagreed with the Review Officers’ characterization of the scope of the motion contemplated by the Prehearing Memorandum. To so extend the motion, they argued, meant that the job class issue as a preliminary matter was rendered moot and that the parties should move directly to the motion on the merits.
Ruling
Having considered all of the submissions and the conduct of this case to date, the panel is of the view that what the Review Officers are now attempting to do is to extend the scope of Management Board’s preliminary motion and to argue the merits of the case. This was to be a narrow preliminary motion, originally intended to be completed in two days. There were numerous opportunities for the Review Officers to raise issues with respect to the terms of the Pre-hearing Memorandum of Agreement and the scope of this motion prior to Management Board closing its case. To allow them to do so now, at this late date, would severely prejudice Management Board.
We therefore find that the scope of the preliminary motion currently before us extends solely to the determination of whether the Review Officers are in the correct job class. That is, do the duties, responsibilities, and qualifications for the Review Officer position distinguish it from the other positions in the ALR 20 job class. It is open to the Review Officers to explore this in some detail with their witnesses, as they did in their cross-examination of the Management Board witnesses.
If we find that the Review Officers belong in another or a separate job class, then we will have to determine whether or not it is female-dominated and as such is entitled to the benefits of the Act.
Heather M. MacNaughton
Chair
Pauline R. Seville
Member
Margaret Kvetan
Member