Hull-Thomson Limited v. Lorna Keen, 2001 CanLII 28097

Pay Equity Hearings Tribunal

0723-01: Hull-Thomson Limited, Applicant v. Lorna Keen, Respondent & Russel Metals Inc., Affected Party

Before: Mary Ellen Cummings, Chair; Yvonne Blaszczyk and Pauline R. Seville, Members.

Cite as: Hull-Thomson Limited (September 7, 2001) 0723-01 (P.E.H.T.)

Decision of the Tribunal, September 7, 2001

1Hull-Thomson Limited (the Applicant) has requested a hearing with respect to an Order of a Review Officer dated June 11, 2001. In the Order, the Officer concluded that the Applicant was a company that employed between 50 and 99 employees, with the result that it was obliged to comply with the Pay Equity Act by January 1, 1993. The Officer further determined that the job rate for the single incumbent position of Purchasing Manager was $40,000; that the job rate of the male comparator was $47,000 and that the job rate of the Purchasing Manager ought to have been adjusted to $47,000 on January 1, 1993. Consequently, the Officer ordered the Applicant to pay the adjusted rate to the Responding Party, Ms. Keen.

2The Applicant submits that changes in both the duties and responsibilities of the Purchasing Manager, and overall changes in the Applicant's operations as a result of a sale of business to Russel Metals Inc. should have resulted in a downgrading of the value of the female job class.

3More significant, the Applicant seeks a determination that Russel Metals Inc. is the employer for the purposes of the Act, and a declaration that the Applicant is not the employer. Having regard to this pleading, the Tribunal gave notice of the proceeding to Russel Metals Inc. Russel Metals Inc. filed a Response on July 20, 2001. It takes the position that it is not the employer. More important for this preliminary decision, Russel Metals Inc. argues that the issue of who is the employer was not an issue raised at any point prior to the Application being filed. Russel Steel Inc. points out that the Tribunal is without jurisdiction to consider this issue if the matter has not been put before the Review Officer.

4The Tribunal has determined on a number of occasions that it does not have jurisdiction to hear matters that were not raised at Review Services (see for example Scarborough No. (1), (1994) 5 P.E.R. 45). Consequently, as a threshold matter, the Panel must determine whether the issue of "who is the employer" was raised at Review Services. If the panel determines that the issue has not been raised with a Review Officer, then that question cannot come before the Tribunal. At that stage, presumably, all the parties, including Russel Steel Inc. would meet with an Officer with a view to investigating, mediating and ultimately, ordering, if necessary, who is the employer of Ms. Keen and other employees at her workplace.

5If the issue of who is the employer must be adjudicated, a number of potential consequences flow. The identity of the employer affects the determination of "establishment". The issue also profoundly affects the date when the Act must be complied with and the method of compliance. The identity of the employer and "establishment" inform the question of how many employees, which, in turn determines whether the employer has to comply with Part II or Part III of the Act. It is possible, then, that a determination of "who is the employer" will require that further steps be taken or considered before the parties and the Tribunal can properly turn their attention to the questions connected with the position of Purchasing Manager at Hull-Thomson Limited.

6In any event, at this time the Tribunal seeks the parties' submissions on the question of whether the issue of employer was raised at Review Services. The Applicant is required to serve and file its submissions by no later than September 21, 2001. The responding party and intervenor are directed to serve and file any submissions by no later than October 5, 2001. The Applicant may serve and file reply submissions by no later than October 19, 2001.

7The Panel will endeavour to determine the jurisdictional issue on the basis of the written submissions.