Kidakarn Apaiwongse v. Management Board Secretariat and Ministry of the Attorney General, 2001 CanLII 28101

PAY EQUITY HEARINGS TRIBUNAL

PE-0696-99 Kidakarn Apaiwongse, Applicant v. Management Board Secretariat and Ministry of the Attorney General, Respondents

Appearances: Kidakarn Apaiwongse on her own behalf and Melissa Nixon and Aura Andrada on behalf of Management Board Secretariat and the Ministry of the Attorney General

Before: Heather MacNaughton, Chair; Margaret Kvetan and Pauline R. Seville, Members

Cite as: Apaiwongse (No. 2) (13 February 2001) 0696-99 (P.E.HT.)

1Kidakarn Apaiwongse requests reconsideration of the decision of the Tribunal dismissing her Application (Apaiwongse v. Management Board Secretariat and Ministry of the Attorney General (7 November 2000) 0696-99). The respondent, Management Board Secretariat opposes the reconsideration request and filed written submissions in support of its position.

2The Tribunal has the discretion to reconsider its decisions. In a number of decisions including Women’s College Hospital (No.2) (1990), 1 P.E.R. 178, Riverdale Hospital (No.2) (1991), 2 P.E.R. 8, and most recently in Management Board Secretariat (No. 7) (1999-2000), 10 P.E.R.1, the Tribunal has set out the test and factors it will consider in exercising its discretion. Reconsideration will only be granted in compelling and extraordinary circumstances. The panel will consider the following factors:

• Were there legal submissions, or evidence, which could not have been presented by the party seeking reconsideration at the time of the hearing and which, if accepted, would be practically conclusive in changing the outcome of the case?

• Since the decision, has there been a change of circumstances such that the decision should not stand?

• Is the decision wrong in law?

3The Reconsideration Application filed by Ms. Apaiwongse does not address the factors set out above. However, her application refers to three reasons which, she submits, support it. First, she believes that the Tribunal misunderstood her evidence with respect to her job duties. She says that transmitting court orders was not part of her regular job duties but that she was required to do it. Second, she submits that she received a lower hourly rate than that received by male enforcement clerks for performing the same duties. Finally she says MBS obstructed her attempts to obtain replacement work.

4MBS submits that most of what Ms. Apaiwongse relies on in support of her reconsideration request was fully argued before the Tribunal at the hearing and, to the extent it may not have been articulated in the same way, Ms. Apaiwongse had ample opportunity to make those submissions at the hearing. In particular, MBS submits that while the allegation that the applicant was paid less than male enforcement clerks was not made before the Tribunal, it was open to her to make that allegation. In any event, MBS submits that male enforcement officers were part of an Office Administration job class that was a female job class in the OPS Pay Equity Plan. The fact that she may have received a lower hourly rate, they submit, does not necessarily entitle Ms. Apaiwongse to a pay equity adjustment.

5MBS submits that Ms. Apaiwongse has failed to meet the test for reconsideration by failing to meet any of the three factors outlined above.

6We propose to deal with each of Ms. Apaiwongse’s submissions separately. Ms. Apaiwongse gave evidence about her job title and job duties at the hearing. Those duties were briefly described in the decision. Whether or not those job duties fell within her job description or were additional duties required of her is not evidence which, if led, would have impacted the outcome of this case.

7Ms. Apaiwongse submits that she earned less than male enforcement clerks did. This argument was available to her at the hearing and she raised this issue in both her opening statement and closing submissions. Ms. Apaiwongse did not however plead her case on that basis and led no evidence in support of it. Hence, as we set out in paragraph 18 of our original decision the Application did not disclose a prima facie case alleging a breach of the Act.

8Ms. Apaiwongse dealt with her allegation that MBS blocked her attempts at re-employment at the hearing and filed correspondence with us that set out her debts. These issues were not relevant to our determination in the first instance and clearly do no meet the test for reconsideration outlined above.

9Ms. Apaiwongse does not rely on a change of circumstances which would suggest that the decision should not stand and makes no submissions that the decision is wrong in law.

10None of the facts relied on by Ms Apaiwongse in her Reconsideration Application are legal submissions, or evidence, which could not have been presented by her at the hearing and, if accepted, would be practically conclusive in changing the outcome of the case. For all of these reasons the application for reconsideration is dismissed