PAY EQUITY HEARINGS TRIBUNAL
0704-00 Ford Motor Company of Canada, Applicant v. David Deluzio on behalf of a Group of Anonymous Non-Union Employees, Respondent, Milan Podhorsky, Respondent
Before: Patricia E. DeGuire, Vice-Chair, and Members Margaret Kvetan and Pauline R. Seville
Appearances: Julie O’Donnell for the Applicant, and David Deluzio for the Group of Anonymous Non-Union Employees, and Denise Podhorsky for Milan Podhorsky,
Cite as: Ford Motor Company (October 2, 2001) 0704-00 (P.E.H.T.)
DECISION OF THE TRIBUNAL, OCTOBER 2, 2001
INTRODUCTION
1The Applicant, Ford Motor Company of Canada, seeks to have the Pay Equity Hearings Tribunal (the “Tribunal”) revoke a Review Officer’s Order dated February 7, 2000, (the “Order”). The Order required the Applicant to prepare and post an amended pay equity plan within ninety days, to reflect any changes since November 1993, according to subsections 13 and 15 of the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (the “Act”). Mr. Deluzio and Milan Podhorsky oppose the Application.
ISSUES
2At the hearing on September 18, 2001, the following three preliminary issues were put before the panel:
i) Mr. Deluzio asked that his Response be withdrawn.
ii) Ms O'Donnell raised concerns whether proper notice of Mr. Deluzio's intention to withdraw his Response was given to some or the entire "group of anonymous employees".
iii) Ms O'Donnell stated that there were unresolved issues concerning production of particulars.
ORDER
3The Tribunal directs Mr. Deluzio to communicate with the Pay Equity Office and ask for the names and addresses of all the members who form the “Group of Anonymous Non-Union Employees”. Upon receiving that information, the Tribunal directs Mr. Deluzio to write to those persons and notify them of his intention to withdraw his Response on their behalf and his reason for wanting to do so. He must give the members ten business days to respond. Further, Mr. Deluzio must inform them that if he fails to hear from them within that time, he will continue with his motion before the Tribunal to seek leave to withdraw his Response. In addition, it is necessary for Mr. Deluzio to emphasize in his letter to the group that if the group wishes to remain anonymous, it is crucial to appoint an agent to represent them at the proceedings. Failure to do so may result in the Tribunal proceeding and disposing of the case in their absence without further notice to them: (the Tribunal’s Rules of Practice, Rule 11:02)).
4The Tribunal directs Mr. Deluzio to inform the Tribunal by October 25, 2001, 17:00 hours that he has complied with the panel's directives, including the date on which he gave notice to the group, and the results of his efforts. The Tribunal stresses that the names of the members of the anonymous group must not be divulged to it, or the Applicant or Mr. Podhorsky. To ensure that Mr. Deluzio receives the desired cooperation from the Pay Equity Office, the Tribunal suggests that Mr. Deluzio provide a copy of the Tribunal's decision to the Pay Equity Office.
5While this was not raised during the September 18, 2001 proceeding, the panel notes that the initial title of the proceedings did not conform to the requirements under subsection 32(4) of the Act. Also, Mr. Milan Podhorsky is a party to the proceedings. Accordingly, the Tribunal has corrected the style of cause to read “Ford Motor Company of Canada v. David Deluzio on behalf of Group of a Anonymous Non-Union Employees, and Milan Podhorsky”, and directs the parties to do so as well.
SUBMISSION OF THE PARTIES
(i) Withdrawal of Mr. Deluzio’s Response
6Mr. Deluzio submitted that he wished to withdraw his Response. In his view, he could not be forced to be a party. He averred that he was unable to get instructions from his "client". By explanation, Mr. Deluzio confirmed that he had been in direct contact with one person who had informed him that she was the "liaison" person for four anonymous employees, and that the latter were speaking on behalf of the larger group of anonymous employees. Recently, that person had informed him that she could no longer be the "liaison" person and would get the group to select another "liaison" person. He had not heard from his direct contact since. Accordingly, he sees no alternative, but to withdraw. He stated that he appeared before the Tribunal only as a courtesy to it and to help it in any way possible.
7In answer to the panel's questions, Mr. Deluzio admitted that he had made no attempt to communicate with the Pay Equity Office, as "agent" for the group, to get a list of the names of the individuals who make up the group. He was not quite clear whether he had sent specific enough communication to his direct contact, for example, a registered letter stating that he could no longer be the agent and was seeking leave from the Tribunal to withdraw his Response because he could not get instructions from her or any member of the group.
8Ms Denise Podhorsky concurred in Mr. Deluzio's submission that he be allowed to withdraw his Response because he could not get instructions from his client.
9Curiously, Ms O'Donnell informed the panel that she was recanting from her consent that Mr. Deluzio be allowed to withdraw his Response because of concerns of natural justice.
(ii) Proper Notice of Mr. Deluzio’s Intention to Withdraw his Response
10More specifically, Ms O'Donnell submitted that, in her view, Mr. Deluzio had been retained by "a group of non-union employees/anonymous employees". She was not satisfied that Mr. Deluzio had given appropriate notice of his intention to withdraw his Response to the group. They were aware that a hearing was scheduled for September 18, 2001. As such, they could be of the view, albeit misguided, that Mr. Deluzio was appearing on their behalf. Ms O'Donnell stressed that it was in everyone's best interest, particularly her client's, to ensure that everyone received notice that Mr. Deluzio intended to withdraw his Response.
11Essentially, all the parties agreed that the hearing should not proceed until the panel was satisfied that appropriate notice of the withdrawal of Mr. Deluzio's Response was given to all the members of the said group. In their view, the matter could be cured by the Tribunal directing the Pay Equity Office to give notice to all the persons involved in the "group of anonymous employees" that Mr. Deluzio intended to withdraw his Response. The individuals could then make an informed decision whether they wish to appoint an agent to protect their interest.
(iii) Production of Particulars
12Ms O'Donnell and Mr. Deluzio informed the panel that there are other issues concerning production of particulars that they needed to address. All the parties informed the panel that they believe a Pre-hearing conference is essential to help clarify the issues of notice and the exchange of particulars. In the parties' view, the issues concerning particulars should not be addressed until the resolution of the notice issue.
ANALYSIS
13The panel has considered the submissions and proposals put forward by all the parties. The panel understands from an ordinary reading of subsection 32(3) of the Pay Equity Act that an employee or a group of employees may appoint an agent to appear on their behalf before the Hearings Tribunal, or the Review Officer. Where an employee or group of employees wish to remain anonymous, that agent must be the party to the proceedings before the Hearings Tribunal or the Review Officer: (subsection 32(4)).
14It is not clear how Mr. Deluzio was appointed, but it is enough that he has assumed the role as "agent", and for the purpose of this proceeding, he is now the de facto agent for the anonymous group of employees. In that capacity, Mr. Deluzio has the right and privilege to know the names and addresses of the members who make up the group of anonymous employees he represents. By his own admission, Mr. Deluzio made no attempts to obtain the list of names of the members of the group from the Pay Equity Office.
CONCLUSION
15The panel concludes that Mr. Deluzio cannot withdraw his Response until, at least, the Tribunal is satisfied that all the members of the group of anonymous non-union employees have received notice of his intention to do so. Further, the panel concludes that it is pre-mature to hold a hearing on the merits at this juncture until the preliminary issue concerning production of particulars has been dealt with to its satisfaction. Finally, the panel has decided to reserve on the parties’ request for a pre-hearing until the issue of notice has been resolved.
Dated at Toronto this 2nd day of October 2001.
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Patricia E. DeGuire,
Vice-Chair
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Margaret Kvetan,
Member
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Pauline R. Seville,
Member