PAY EQUITY HEARINGS TRIBUNAL

PE-0703-00 Ann McNeil, Applicant v. Corporation of the Town of Kirkland Lake, Board of Police Services of the Town of Kirkland Lake, and Kirkland Lake Police Association (Civilian Members) Respondents

Before: Patricia E. DeGuire,Vice-Chair; Pauline R. Seville; and Yvonne Blaszczyk, Members

Appearances: Ann McNeil on her own behalf; Murray Ellis for Corporation of the Town of Kirkland Lake and Board of Police Services of the Town of Kirkland Lake; no one appearing for the Kirkland Lake Police Association (Civilian Members)

Cite as: Kirkland Lake (No. 2) (September 25, 2002) 0703-00 (P.E.H.T.)

DECISION OF THE TRIBUNAL, SEPTEMBER 25, 2002

(issued orally July 4, 2002)

1. Ann McNeil, a former employee of the Corporation of the Town of Kirkland Lake (“Employer”), brings this Application to the Tribunal. She states that she brings this Application because her bargaining agent, the Police Association (Civilian Members) (“Association”), a co-Respondent in this matter, failed to negotiate the proper male comparator for her job class and bring the Application on her behalf. Essentially, she challenges a Review Officer’s Order dated February 17, 1999 (“Order”).

2. The Review Officer concluded that the Association and the Employer had engaged in pay equity negotiations and had executed a pay equity plan that was posted. The Review Officer noted that the Association was uncertain whether it and the Employer jointly had evaluated the Records Clerk job class. The Officer determined, however, that the Applicant was matched with the appropriate male comparator. Accordingly, the Officer ordered the Employer to pay the adjustments by March 13, 1999, the total amount owing as a result of the wage gap between the Records Clerk job and the Assistant Surveyor job class. In addition, the Order required the Employer to send written confirmation to the Commission of the amount paid. Also, the Employer was required to re-post the pay equity plan together with a Certificate of Posting by March 13, 1999, if it could establish that the Record Clerk position existed on January 1, 1990.

3. Among other things, the Applicant now complains that the Order does “not reflect to achieve [sic] and maintain Pay Equity for the female job classification Records Clerk. The Review Officer did not take into consideration all relevant events, and facts that indicate the female job classification, Records Clerk was not appropriately evaluated”.

4. In this Application before the Tribunal, the Association does not represent the Applicant. The Applicant has named it a co-Respondent. The Association took no part in the hearing. From henceforth, the term Respondents refers to the Corporation of the Town of Kirkland Lake and Board of Police Services of the Town of Kirkland Lake.

5. The Respondents say the Association represented the Applicant from October 15, 1990 to 1996. It was the bargaining agent for the purpose of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“Act”). They say the Association and the Employer negotiated all pay equity matters and both executed the pay equity plan. In addition, the Respondents say the pay equity plan was posted and, therefore, is deemed approved. Therefore, they argue, the Applicant has no status to bring this Application before the Tribunal. Thus, if there is a flaw in the posting process of the amended plan, the matter should be referred back to the Review Officer.

THRESHOLD ISSUES

6. The Tribunal notes that initially, the Applicant had filed an application at Review Services. A few months later the Association filed its application representing the Applicant’s issues. The Review Services made a determination on the Application that resulted in the Order. In this Application before the Tribunal, the Association does not represent the Applicant. It is a named Respondent.

7. Based on the pleadings, the parties’ positions and the gist of their opening statements, the panel ruled that it was expedient to determine, before embarking on the hearing on the merits, whether the Applicant has status to bring this Application before the Tribunal, or alternatively, whether the Tribunal has jurisdiction in this matter.

8. The panel posed the following three question to the parties: (i) whether the Applicant was a member of a bargaining unit at the relevant times; (ii) whether the Employer and the bargaining agent for the bargaining unit to which the Applicant belonged negotiated and executed a pay equity plan and whether the Employer posted the plan and; (iii) whether the Applicant has status to bring this Application before the Tribunal.

SUMARY OF EVIDENCE

9. The Applicant and the Respondents concur in the following:

(i) The Applicant belonged to a bargaining unit for which the Association was the bargaining agent;

(ii) The Association did engage in pay equity negotiations with the Employer for that unit;

(iii) A pay equity plan resulted from the negotiations;

(iv) The Association and the Employer executed the pay equity plan which the Employer posted;

(v) The Records Clerk position was not included in the original pay equity plan that was posted on April 4, 1991; and

(vi) Subsequently, the Records Clerk position was added to the pay equity plan and that plan was re-posted sometime in March 1992.

10. The Applicant contends, however, that the Association and the Employer did not engage in any negotiations with respect to the pay equity plan that the Employer posted which bears her signature (as she was then Ann Wojtus), and the signatures of Rick Witty, (as he was then President of the Association), and the late Mr. Sharratt (as he was then Town Administrator/Engineer). The Applicant contends that neither she nor Mr. Whitty signed the plan. Furthermore, she argues, the Association and the Employer did not negotiate the amended plan. In addition, the Applicant contends adamantly that her signature was pasted on the document. Therefore, the amended plan should not be deemed approved.

11. The Applicant’s evidence is she became the part-time Records Clerk on October 15, 1990. She states that the Collective Agreement for the period January 1, 1990 to December 31, 1990 did not specifically include the Records Clerk position (Exhibit 1). Furthermore, although she was a member of the Association, she did not pay dues.

12. On September 16, 1991, she became the full-time Records Clerk. She began to work a forty-hour week, but her hourly rate of pay remained at $9.29 per hour. However, in the Collective Agreement for January 1, 1991 to December 31, 1991, signed April 14, 1992, the Records Clerk position was included (Exhibit 2 at p. 5).

13. The Applicant admits that for the said period of the Collective Agreement, her hourly rate of pay increased from $9.29 per hour to $10.896 per hour as indicated in Exhibit 2 at page 5. The Applicant concedes that the hourly wage of $10.896 per hour reflects pay equity adjustments as opposed to a wage increase (Exhibit 12 at Tab 12).

14. The panel asked the Applicant two questions: (i) whether she did receive moneys and; (ii) if she did, at the time she received the moneys, what was her understanding why she received the payments?

15. In response, the Applicant concedes that in addition to the increase in her hourly rate of pay, when she began to work full-time she received two adjustments, namely, $1.10 per hour for 1990 and $1.57 per hour for 1991 (Exhibit 12). She states that at the time, she believed the payments were for pay equity. She testifies that she received adjustment for the years 1990, 1991 and 1992.

16. However, she avers that in 1998, she found out that the calculations and the evaluations were not done correctly. In her pleadings, the Applicant states that the Records Clerk position was not matched with the correct male comparator. She states that the Records Clerk job should have been set at $14.95 as at April 10, 1992. As a result, she did not receive the correct amount of adjustment or maintenance. In her view, it should have been matched with the “highest rate of compensation for the [male] job class.”

17. The Applicant testifies that Ms Donna Harasym had informed her that the Records Clerk position was not included in the pay equity plan because it had not been evaluated. Also, Ms Harasym had informed her that the chief secretary, Ms Diane LeClerc, wrote the comparator for the Records Clerk position and its hourly wage adjustments on the pay equity audit and comparison results document. In addition, Ms Harasym had informed her that she did not know from where Ms LeClerc had obtained the information. However, she acknowledges that by letter dated March 13, 1992, the late Mr. Sherratt informed Ms. Buchanan, Treasurer, that as a result of recent job evaluations, the Records Clerk position had been rated Level 3 (Exhibit 4). Further, she testifies Chief Maas had informed her sometime around March 1992, he had done his best for her to obtain the increase in her hourly wage adjustment with respect to pay equity.

18. In cross-examination the Applicant concedes that on March 6, 1992, she saw an amended pay equity plan posted. That plan contained the position of Records Clerk, but it was written in by hand. She avers that about half an hour after she saw the posted plan, she signed a document. She contends strongly that the document she signed was not the pay equity plan.

19. After the Applicant had declared she had presented all her evidence in this matter, the Employer and the Board of Police Services, Town of Kirkland Lake, by their counsel, brought a motion to dismiss the Application. The ground for the motion is that the Applicant failed to make out a prima facie case for the remedies sought. At the conclusion of the hearing on July 4, 2002, the Tribunal issued its decision and reasons orally. It informed the parties that written reasons would follow.

ANALYSIS

Was the Applicant a member of a bargaining unit at the relevant times?

20. Specifically, the Applicant concedes that she was a member of the bargaining unit that the Association represented. On the evidence adduced before the panel during examination-in-chief and cross-examination, the Tribunal finds that the Applicant was a member of a the Association’s bargaining unit at the relevant times of her employment. The Tribunal finds that the Association was the designated bargaining agent for the bargaining unit to which the Applicant belonged.

21. The fact that the Applicant was a part-time Records Clerk and did not pay union dues at that time is not relevant in the determination of this case. As the part-time Records Clerk, the Applicant was an employee for the purpose of the Act. The only worker in an establishment who is excluded from the category of “employee” is “…a student employed for his or her vacation period.” (Section 1).

22. A salient agreed fact is, soon after the Applicant became a full-time employee, her classification and wages were specifically included in the Collective Agreement – (Exhibit 2 p. 5). Furthermore, the Collective Agreement reflects an increase in the Applicant’s hourly wage. She concedes the adjustment was for a pay equity adjustment as opposed to a wage increase. Also, the Applicant concedes she received pay equity adjustments for the years 1990, 1991 and 1992. She states in her pleadings that in March 1999, the Employer compensated the Records Clerk $5,846.59 for pay equity adjustments. Exhibit 5, a document entered into evidence by the Applicant, indicates that the Records Clerk classification was comparable to the Assistant Airport Supervisor position, and the hourly adjustment required retroactive to January 1, 1990 was $1.57. It seems that only the comparator job title was an error.

23. As noted above, the Association was the designated and exclusive bargaining agent for this establishment for the purpose of the Act. Nevertheless, where there is a bargaining agent, the Act requires specific processes before any pay equity plan could be deemed approved.

Did the Employer and the Association negotiate and execute a pay equity plan; and did the Employer post the plan, as the Act requires?

24. Subsection 14(2) of the Act states that “[t]he employer and the bargaining agent for a bargaining unit shall negotiate in good faith and endeavour to agree, before the mandatory posting date, on (a) the gender-neutral comparison system used for the purpose of section 12; and (b) a pay equity plan for the bargaining unit.” The Applicant accedes that the Employer and the Association complied with that requirement of the Act.

25. Based on the undisputed facts, the Tribunal finds that the Employer and the Association negotiated and executed the original pay equity plan. The Employer posted the original pay equity plan on April 4, 1991. The Tribunal finds that there was a pay equity plan and that plan was “deemed approved” for the purpose of the Act. Therefore, as a deemed approved plan under Part II of the Act, it binds all employees (including the Applicant), the Employer and the Association: (subsection 13(9).

26. The Tribunal finds that although the Association represented the bargaining unit, the Records Clerk position was not included in the original pay equity plan that was executed and posted. The Applicant accedes that the Records Clerk position was added to the pay equity plan and that plan was re-posted sometime in March 1992.

27. The Applicant argues, however, that the Employer and the Association did not negotiate the amended plan that included the Records Clerk position (which was handwritten as opposed to typewritten). Therefore, she argues, the amended plan should not be deemed approved.

28. The Applicant contends that Ms Harasym had informed her that she did not know the source of the results of the evaluation ascribed to the Records Clerk position. However, the Applicant’s evidence is that Chief Maas had informed her that he had done his best for her in obtaining an increase in her hourly wage from $9.29 to $10.896. As noted earlier, she concedes that adjustment was for pay equity. In her pleadings the Applicant states that Chief Maas had asked her to sign “a piece of paper…which stated, in hand writing ‘assistant airport supervisor $1.57’.” She had asked Dianne Preston and Ms Harasym whether she had to sign it. Ms Harasym had advised her that she could have refused to sign it on the basis that “…there was no Association Representative present during the evaluation of the Records Clerk.” There was no compelling evidence before the Tribunal to support these allegations.

29. Based on the Applicant’s evidence, it is reasonable to conclude that Chief Maas had engaged in some kind of negotiation with a person other than the Employer to effect an evaluation and an adjustment for the Records Clerk position. Notably, Chief Maas was part of the Board of Police Services of the Town of Kirkland Lake’s management. The Employer through its counsel submits that all pay equity matters were negotiated and signed by it and the Association.

30. The Tribunal finds that the original pay equity plan was amended to include the Records Clerk position. Further, the Tribunal is satisfied that the Employer and the Association evaluated, agreed on the male comparator and executed the amended pay equity plan. Thereafter, the Employer posted it. Therefore, as a deemed approved plan that has been amended, it is binding on the Applicant, the Employer and the Association: (Subsection 13(12)).

31. The Applicant’s evidence is that she received adjustments retroactive to the inception of the pay equity plan. The evidence before the Tribunal is that the Employer compensated the Applicant for the wage gap between the Records Clerk job and the selected male comparator.

32. The Applicant does not allege the comparison system adopted by the Employer and the Association was flawed. Nor does she claim the Employer’s compensation practises employed in the pay equity plan failed to provide for pay equity. She does not allege the Employer and the Association adopted pay equity plan that failed to comply with the minimum standards under Part II of the Act. Further, there is no allegation before the Tribunal that the Employer and the Association failed to comply correctly with the primary precepts proclaimed in Part I of the Act.

33. Essentially, the Applicant’s complaint is that she is not satisfied with the evaluation done by the Employer. She is dissatisfied with the Review Office’s conclusion that the position of Records Clerk, a female job class, was comparable to the Assistant Surveyor, a male job class.

34. The Applicant argues that her job class was compared to the wrong male comparator and that the job rate ought to have been the “highest rate of compensation for a [male] job class.” Implicit in the Applicant’s argument is there were more than one comparison between the Records Clerk job class and the male job classes in her establishment. Specifically, she believes that the correct comparator ought to have been the Assistant Airport Supervisor, with the highest job rate, as opposed to the Assistant Surveyor’s position, with a lower job rate. The Applicant, however, fails to adduce evidence to support why this should be so.

35. That allegation does not incline the Tribunal to pierce the veil to examine a “deemed approved plan”. Absent evidence to the contrary, the Tribunal is satisfied that the Employer and the Association have met the strictures of Part I and Part II of the Act.

36. Much of the Applicant’s evidence focuses on the point that she did not sign the amended pay equity plan. Implicit in her position is that if she did not sign the amended pay equity plan, it is not valid for the purpose of the Act. The Applicant’s evidence is she was neither a member of the Employer’s nor the Association’s team that negotiated the pay equity plan.

37. Subsection 14(4) states that “[w]hen an employer and a bargaining agent agree on a pay equity plan, they shall execute the agreement and, on or before the mandatory posting date, the employer shall post copy of the plan in the workplace.” By implication, the Act requires only the Employer and the bargaining agent to execute “the agreement” –). Accordingly, whether the Applicant signed the pay equity plan or her signature was “pasted” on it, is irrelevant in the determination about whether the amended pay equity plan meets the requirements of the Act.

Does the Applicant have status to bring this Application before the Tribunal or alternatively, does the Tribunal have jurisdiction to hear this Application?

38. The short answer is the Applicant has no status to bring this Application before the Tribunal. Surely the Tribunal has jurisdiction to deal with this Application. However, in the interests of fairness and natural justice, the Tribunal has set out guidelines that should be met before it enquires into the merits of an Application. Those guidelines are discussed in more detail below. At this point, the Tribunal summarises its findings immediately below.

39. The Tribunal found that the Applicant was a member of a bargaining unit and that the designated bargaining agent for that unit negotiated and executed a pay equity plan with the Employer. The Employer posted the plan. Therefore, the original pay equity plan was a “deemed approved” plan.

40. In addition, the Tribunal found that subsequently, the plan was amended and re-posted according to the Act. Furthermore, the Tribunal concluded that the amended pay equity plan was binding on the Employer, the Association and the Applicant. The Tribunal is satisfied that the Employer compensated and maintained pay equity to bridge the wage gap between the Records Clerk and the Assistant Surveyor position.

41. The Tribunal carefully has reviewed the Application before it. The Application does not make out a prima face or arguable case. Significantly, the Applicant’s pleadings challenge the processes adopted by the Employer and the Association in amending the pay equity plan. Indeed, the Applicant alleges that the Employer alone arbitrarily assigned the job rate for the Records Clerk position. As noted earlier, she presents no evidence to buttress her allegations.

42. The Tribunal finds that the Applicant fails to plead an arguable case that the Employer and the Association have breached the fundamental precepts articulated in Part I of the Act. Further, the Applicant fails to show that the compensation practices set out in the original and amended plans fail to meet the strictures stipulated in Part I of the Act. The Applicant fails to establish that the Employer and the Association failed to meet the requirements set out in Part II to comply with Part I of the Act.

43. Having concluded that the Applicant fails to make out a prima facie case that the Employer and the Association failed to comply with Part I of the Act, the Tribunal has taken the decision not to enquire into the merits of this complaint. This is consistent with the Tribunal jurisprudence concerning the interpretation of Part I with respect to whether it should enquire into a complaint made by a member of a bargaining unit.

44. More specifically, the Tribunal held in its seminal decision, namely, Ottawa Board of Education (No. 2), (1996) 7 P.E.R. 9, at paragraph 44:

45. We will examine an allegation that a deemed approved plan created under Part II contravenes the Act by inquiring whether the plan meets the requirements of Part I. To be successful, the complainant must show in what way the compensation practices do not provide for pay equity, by reference to the specific provisions of Part I of the Act, which set out what pay equity entails. In this way the Act provides for the resolution of two competing aspects of pay equity. The first is the requirement that Part II employers establish and maintain pay equity by the creation, implementation and amendment of deemed approved plans. The second is that they have compensation practices that provide for pay equity and plans that comply with the minimum standard of the Act.

46. It is our view that the standard applicable to determining whether the contravention has been established is necessarily different, depending upon whether the provision in question sets an exact minimum standard or implies a range. Thus, where the Act is precise, compliance is clearly necessary. Where the Act grants an element of choice to those designing the plan, some deference to their decision is appropriate. When the provision of the Act alleged to be contravened sets an exact requirement, we will inquire whether the impugned aspect of the plan is correct. When the provision is not capable of exact application, but implies a range or an exercise of discretion, we will inquire whether the impugned aspect of the plan is reasonable. The decision about whether a plan complies with the minimum standards of Part I is thus as objective an exercise as is possible.

47. We are mindful that in many cases employers have already implemented their plan, relied on its deemed approval and paid out the required adjustments. In these circumstances, employers may be more vigilant about whether the party challenging the plan has alleged a prima facie case. While this is always an aspect of the adjudicative process, it may play a very significant role in these matters. Therefore, the party alleging the contravention must be careful to set out in its pleadings, along with any filed expert reports, the details of the allegation that the plan, or an aspect of it, does not comply with Part I. For, ultimately, the panel hearing the case may be required to determine the sufficiency of the pleadings.

48. At this juncture we are not reviewing issues of process, which are properly raised when the plan is being developed or amended. However, the OSSTF raises another sort of process issue when it alleges that the OBE-OBEEU plan was a sweetheart deal, and that the job rates were inappropriately readjusted. Counsel did not make submissions about how these allegations of improper conduct should be treated. We therefore do not address this issue now….

DECISION

45. For all the reasons stated above, the Tribunal dismisses this Application. The Respondents’ motion to dismiss the Application on the grounds that the Applicant failed to plead a prima facie is allowed. As found above, the pay equity plan was deemed approved as at April 4, 1991 when the Employer posted the original pay equity plan.

46. Consistent with the Tribunal’s jurisprudence, this panel will not enquire into a deemed approved plan because the Applicant has not pled or made out a prima facie case with respect to Part I of the Act: (Parry Sound District General Hospital (No. 1) (1995), 6 P.E.R. 24; Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73; Ottawa Board of education (No. 2), 7 P.E.R. 9; Management Board Secretariat (No. 6) (1998-99), 9 P.E.R. 49; and Centennial College (January 25, 2002), 0718-01 unreported).

47. In sum, as a member of a bargaining unit that was represented by a bargaining agent, which negotiated and executed a pay equity plan that the Employer posted, in this particular case, the Applicant has no status to bring this Application before the Tribunal.

48. The Respondents ask for costs in this matter. Costs are not awarded. There is no specific authority in the Act, nor any authority that even if broadly construed would empower the Tribunal to make an order for costs. More specifically, section 29 of the Act cannot be construed so without resulting in sheer absurdity. Indeed subsection 17.1(1) of the Statutory Powers Procedure Act R.S.O. 1990, c. S.22 empowers a tribunal to make rules respecting cost powers. However, this Tribunal has not passed such a rule that will allow it to exercise cost powers. And, even if this Tribunal had such a rule, this panel is not persuaded that the conduct or course of conduct of the Applicant has been frivolous, unreasonable or vexatious or that she acted in bad faith to warrant an order for costs.

Dated at Toronto this 25th day of September, 2002.

Patricia E. DeGuire, Vice-Chair

Pauline R. Seville, Member

Yvonne Blaszczyk, Member