PAY EQUITY HEARINGS TRIBUNAL
0699-00 Pay Equity Office, Applicant v. GL&V and Group of Employees, Respondents
Before: Mary Anne McKellar, Vice-Chair, and Members Bruce Budd and Margaret Kvetan
Cite as: GL&V Process Equipment (No. 4) (23 May 2000) 0699-00 (P.E.H.T.)
INTRODUCTION
The Tribunal issued its final decision in File 0671-98 on December 17, 1999 (“the Decision”). That file involved an Application by GL&V Process Equipment Group Inc. (“the Employer”) objecting to the pay equity plan ordered by a Review Officer. Specifically, the Employer objected to the plan’s identification of its “Buyer” job class as female. The plan also identified the "Eng. Systems Co-ord." as the male comparator. The Respondent to the Employer’s Application was identified as a Group of Employees. That group of employees was represented throughout the proceeding by Mary O’Connell (“O’Connell”). The employees comprising the group were never identified to the Tribunal.
In its decision, the Tribunal found that the “Buyer” was a male job class. In the course of the evidence led before the Tribunal, it became apparent that the sole incumbent of the “Buyer” job class was Doris Jaehnke (“Jaehnke”).
By Application dated February 24, 2000, Jaehnke seeks to have the Tribunal reconsider the Decision. The Tribunal has assigned File No. 0699-00 to her Application. Jaehnke named the Pay Equity Office, the Employer and O’Connell as Respondents to the Application in File No. 0699-00. By letter dated February 25, 2000, the Tribunal notified the Respondents of the Application and that the deadline for serving and filing Responses was March 15, 2000. The Pay Equity Office was not a party to the Application in 0671-98 and advised the Tribunal that it takes no position with respect to the reconsideration request. The Employer takes the position that the request should be dismissed. O’Connell has not responded.
ANALYSIS
The only persons who may seek reconsideration of a decision are those who were party to it, or those who allege that fairness and natural justice demand that they ought to have been a party. We do not know if Jaehnke was among the group of employees party to the Application which resulted in the Decision. For the purposes of her reconsideration request, we will assume that she was. Consequently, she is entitled to seek reconsideration of the Decision.
The Tribunal’s power to reconsider its decisions is found in s. 30(2) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended:
The Hearings Tribunal may at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the decision or order.
In its first decision dealing with a request for reconsideration, the Tribunal noted that the Tribunal’s decisions are intended to be final. A party is not entitled as of right to have a decision reconsidered. Instead, the Tribunal possesses the discretion to reconsider where there are compelling and extraordinary circumstances. See Women’s College Hospital (No.2) (1990), 1 P.E.R. 178, at Paras. 4-7.
Later in that decision at Para. 14, the Tribunal stated that the test for determining whether to reconsider a final decision can be summarized by the following question: “is there some reason to interfere in this case which has already received a decision which was intended to be final?” In answering that question, the Tribunal had regard to three factors:
i. Was there evidence at the time of the hearing that was not presented because it was unavailable to the party asking for reconsideration, and which is likely to make a substantial difference to the outcome of the case?
ii. Since the decision, has there been a change in circumstances such that the decision should not stand?
iii. Is the decision wrong in law?
See also Riverdale Hospital (No. 2) (1991), 2 P.E.R. 8; Dare Foods Ltd. (No. 2) (1993), 4 P.E.R. 1; Management Board Secretariat (No. 2) (1994), 5 P.E.R. 10; Hamilton Civic Hospitals (No. 3) (1996), 7 P.E.R. 26; and Management Board Secretariat (No. 7), September 8, 1999 (PEHT).
Generally speaking, whenever the Tribunal issues a decision, one party is pleased with the outcome, and one party is not. In order to have the decision reconsidered, however, the party that does not like the outcome must go beyond merely disagreeing with the result. The party seeking reconsideration must show that the facts had not crystallized (i.e. could not have been ascertained) at the time of the hearing (factors (i) and (ii) above), or must show that the decision is wrong in law (factor (iii) above).
Jaehnke makes four points in her Application. First, she was the only incumbent of the “Buyer” job class for this Employer. Second, her duties for this Employer differed significantly from those performed by the Buyers who worked for the Employer’s predecessor. Third, the volume of purchases handled by the Employer’s Buyer and Senior Buyer are similar. Fourth, Counsel for the Pay Equity Office should have made submissions at the hearing to support a determination that the Buyer is a female job class.
With respect to her first three points, Jaehnke is submitting evidence and argument. None of it is new, however. All of it was known to Jaehnke at the time of the hearing and could have been introduced then. Indeed, the Employer notes in its submissions that the documents Jaehnke relies on in her reconsideration request were before the Tribunal at the hearing. The fact that the Tribunal did not accord this evidence much weight does not constitute grounds for reconsideration. Similarly, the fact that Jaehnke’s representative, O’Connell, may not have dealt with the evidence or the arguments to the satisfaction of Jaehnke, also does not constitute grounds for reconsideration. See Prescott Russell (No.2) (1997), 8 P.E.R. 26, at para. 8.
With respect to Jaehnke’s fourth point, the Employer points out that each party to a hearing before the Tribunal is obliged to adduce evidence and argument in support of its position. A party cannot simply rely on the fact that the Review Officer made an order in its favour. The Pay Equity Office never appears before the Tribunal to make submissions on the merits of a Review Officer’s order. Under the provisions of the Act and the Tribunal’s case law, it does not have the right (i.e. standing) to do so. The Pay Equity Office was only in attendance during the hearing of Application 0671-98 because it had filed its own application to enforce the Review Officer’s Order. Once the Employer filed Application 0671-98, however, s. 25 (1.1) operated to stay the application of the Pay Equity Office. Hence, Jaehnke’s fourth point does not constitute grounds for reconsideration.
The crux of Jaehnke’s Application appears to be that the Tribunal’s Decision answered the wrong question. Her Application suggests that her duties encompassed both some buying functions and the clerical functions previously performed by the Clerk Typist in the Purchasing Department. In other words, her position appears to be that many of the duties she performed were clerical. Because clerical duties are stereotypically female, she submits that the Buyer is a female job class. This argument could have been, but was never put before the Tribunal. That alone constitutes reason to dismiss the request for reconsideration.
In conclusion, Jaehnke's submissions fail to assert the existence of any of the three factors on which the Tribunal might exercise its discretion to reconsider the Decision. Nevertheless, the Tribunal wishes to comment briefly on her submission. As the Applicant in 0671-98, the Employer had the right to characterize the issue in dispute. It only disputed the pay equity plan’s identification of the Buyer job class as female. The plan identified the Buyer and the Clerk Typist as two distinct job classes, with different male comparators. If the Group of Employees represented by O’Connell wanted to argue that they constituted a single job class, it should have said so clearly in its Response, and might even have filed its own objection to the Order. The consequences of successfully arguing that point, however, might have led to a re-evaluation of the work performed by the job class. That could have resulted in a lower score under the job evaluation system and the identification of a different male comparator.
DECISION
- For the above reasons, the request for reconsideration is denied.
Dated at Toronto this 23rd day of May, 2000.
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair
“Margaret Kvetan”
Margaret Kvetan, Member
“Bruce Budd”
Bruce Budd, Member