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
Cite As: Management Board (Review Officers) (No. 4) February 13, 2001, 0636-97 (P.E.H.T.)
DECISION OF THE TRIBUNAL FEBRUARY 13, 2001
1On September 29, 1999 this panel issued an Interim Decision (Management Board (Review Officers)(No.2) (1999-2000), 10 P.E.R. 4, which defined the scope of a preliminary motion brought by The Crown in Right of Ontario (“Management Board”). That decision sets out in some detail the circumstances giving rise to the preliminary motion. In paragraph 15 of that decision we said:
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. (emphasis added)
2The Interim Decision, and its reference to the ALR 20 job class, was based on Management Board’s Response to the Application, the Prehearing Memorandum of Agreement, the Opening Statement of Counsel for Management Board, the legal submissions, and the evidence that had been led by Management Board to that point. In particular, Management Board had called a number of witnesses employed in, or supervising, positions included in the ALR 20 job class. Their evidence was directed at assisting us in a comparison of the duties, skills, responsibilities and qualifications of Review Officers vis a vis the other positions in the ALR 20 job class.
3The Review Officers seek to have the Interim Decision revised or reconsidered in light of the evidence that has emerged at the hearing subsequent to its release. They argue that it is now clear that for all of the steps during the development by Management Board of the Pay Equity Plan the Review Officers were included in the ALR 19 job class. The Review Officers submit that at some point the Review Officer position was reclassified under the Management Compensation Plan to the ALR 20 level, and subsequently moved to the ALR 20 job class for pay equity purposes where it appeared when the Pay Equity plan was posted in February, 1990. The Review Officers submit however, that including Review Officers in the ALR 20 job class for posting purposes does not alter the fact that they were treated as ALR 19s for all other purposes during the pay equity process.
4Management Board does not dispute that for much of the pay equity process and analysis Review Officers were considered part of the ALR 19 job class. They argue however that how Review Officers were treated during the process is not relevant to the determination they ask us to make. They argue that the job class crystallizes at the time of posting and hence the appropriate comparator for determining “similarity”, as that term is defined in the Section 1 definition of job class, is the ALR 20 job class. In essence they argue that if Review Officers ended up in the right job class at the end of the pay equity process it does not matter how they were classed during the process steps.
Decision
5A review of the steps required to achieve pay equity as set out in Parts I and II of the Pay Equity Act, R.S.O. 1990 c.P.7 as amended (the “Act”) indicates that one of the first steps necessarily undertaken by an employer in a non-bargaining unit pay equity plan is to determine the job classes in the establishment. Once that determination has been made the employer can determine the gender predominance of the job classes and hence whether they are female or male (s. 1(5)). Only after these two essential steps have been completed can a gender-neutral comparison system be used by the employer to analyze pay policy and to determine what steps are necessary to achieve pay equity. In a non-negotiated plan the determination of job class and the assessment of gender predominance is determined solely by the employer.
6We learned during the course of the evidence that, for the most part, Management Board used their pre-existing job classification system, the Management Compensation Plan, for the determination of job class for the purposes of pay equity under the Act. As documents were ordered to be disclosed to the Review Officers and the evidence was led, it became apparent that for the purposes of most, if not all of the steps in the pay equity methodology used by Management Board the Review Officers were in the ALR 19 job class. That is the job class to which they were assigned under the Management Compensation Plan when the pay equity process was commenced.
7We learned from the evidence of Allan Norwich, a former Senior Quantitative Analyst for the Pay Equity Project at Management Board, that Management Board undertook a number of steps in order to achieve pay equity. Those steps are outlined in detail in exhibits filed before us and include: identifying male and female work using legislated criteria, identifying relevant aspects of work, ensuring that the four legislated factors were covered, gathering information about the jobs including the development, testing and administering of a survey, analyzing the survey results, posting a plan and making the necessary salary adjustments.
8Mr. Norwich testified that for all of these steps Review Officers were included in the ALR 19 job class. Exhibits filed before us confirmed that evidence and it was not disputed by Counsel for Management Board. For example, pursuant to our order Management Board produced the surveys completed by Review Officers. On their face they specifically refer to the Review Officer position as a Labour Relations AM-19. That reference is to the Administration Module of the Management Compensation Plan level 19.
9We also learned from the evidence of Murray Lapp, the former Director of Review Services, that while the pay equity process was ongoing at Management Board the Pay Equity Office and the Ministry of Labour were involved in reclassification exercise for the Review Officer position under the Management Compensation System. At a date which is not certain, but which is after the pay equity surveys were completed and the results were analyzed, the Review Officers were reclassified from a level ALR 19 to an ALR 20.
10Many of the facts that we, and the parties, now know emerged for the first time during the course of the evidence in part because the parties to this dispute did not have the benefit of the investigation and disclosure that occurs when a complaint is processed through Review Services of the Pay Equity Office. Because the Applicants in this case are an anonymous group of Review Officers employed in Review Services of the Pay Equity Office, and because of the conflict that posed for Review Services, no investigation was done with respect to this Application prior to it being filed with the Tribunal. As a result the panel has been required throughout this motion to give extensive direction to the parties regarding disclosure and to rule on an ongoing basis on the scope of the issues before us. Further, the parties have had little opportunity to understand the nature of each other’s case and the positions that they would take with respect to some of the issues.
11In light of the evidence now before us, which is not disputed, it is apparent that the preliminary motion brought by Management Board is ill-founded and our Interim Decision, to the extent that it referred to the parties being in the ALR 20 job class, has unduly limited the scope of the evidence that would be necessary for us to make a determination of the appropriateness of the job class determination that was made by Management Board.
12The Review Officers urge us to amend our ruling to delete the reference to the ALR 20 job class and to refer instead to the ALR 19 job class. Management Board urges us to delete any reference to a specific job class and to move to the next stage of this dispute, which they submit, is a determination of the correct job class in which to place the Review Officers. Neither of these submissions are reflected in the pleadings as filed.
13Surprisingly, and for the first time on the last hearing day of February 6, 2001, the Review Officers suggested that they might well be satisfied with being placed in the ALR 19 job class for the purposes of pay equity. They do so on the basis that, in their view the ALR 19 job class is female dominated which may result in them being entitled to a pay equity adjustment under the Act. In response Management Board, again somewhat surprisingly, indicated that it might well be prepared to concede that the Review Officer position is not similar to the others in the ALR 19 job class and hence asked us to embark on an inquiry which would look at which other job class the Review Officers properly belonged.
14However, neither party has pleaded their case in the way they now wish to proceed and neither party has committed themselves to the positions outlined above.
15Having considered all of the available options, the possible outcomes of each of those options, and the submissions of the parties, the Tribunal is of the view that there is very little to be gained by continuing with the preliminary motion as framed by Management Board. Further, there is no basis on which we could treat the Review Officers as being in the ALR 19 job class for pay equity purposes when the plan as posted did not reflect that placement.
16We now have evidence which potentially impugns the job class determination for the entire non-bargaining unit plan. We are unable to currently determine whether the use of the Management Compensation Plan job classes for the purposes of pay equity meets the requirements of the Act. The Tribunal concludes that the appropriate way to proceed is to require both parties to file new pleadings to properly put in dispute the issues now revealed by the evidence and the outcomes that flow therefrom.
17The Review Officers are to deliver their revised pleadings by March 30, 2001. Management Board will have until April 20, 2001 to respond and the Review Officers will have until April 27, 2001 to reply. To avoid the disclosure difficulties that have plagued this hearing thus far, Management Board is to prepare a sworn list of all of the documents that are or were in their possession, control or power relating to the development of the non-bargaining unit plan and to provide that list to the Review Officers by May 25, 2001. If there are any disputes over the disclosure the Tribunal will arrange for a motion to be argued.
Heather M. MacNaughton
Panel Chair
Pauline R. Seville
Member
Margaret Kvetan
Member