PAY EQUITY HEARINGS TRIBUNAL
0733-01 Renfrew County and District Health Unit, Applicant v. Ontario Public Service Employees Union, Respondent
Before: Mary Ellen Cummings, Chair, and Members Pauline R. Seville and Yvonne Blaszczyk
Cite as: Renfrew County and District Health Unit (No. 2) (January 24, 2002) 0733-01 (P.E.H.T.)
DECISION OF THE TRIBUNAL, JANUARY 24, 2002
This is an Application with respect to a Review Officer’s Order dated December 18, 2001. The Officer identified the issue between the workplace parties, that is the Employer and the Ontario Public Service Employees’ Union (OPSEU), as one around how to calculate retroactive adjustments owing to employees under the parties’ pay equity plan and the challenges the Employer was facing in finding the internal resources to calculate more than 10 years worth of retroactive adjustments for employees who were justifiably eager to receive the monies.
It appears from both the Order and the Employer’s Application that initially the Employer proposed paying out adjustments based on a calculation of 1% of each employee’s salary in the previous year. The Pay Equity Act requires that pay equity adjustments be calculated as follows:
13(4) The first adjustments in compensation under a pay equity plan are payable as of the date provided for in clause (2)(e) and shall be such that the combined compensation payable under all pay equity plans of the employer during the twelve-month period following the first adjustments shall be increased by an amount that is not less than the lesser of,
(a) 1 per cent of the employer's payroll during the twelve-month period preceding the first adjustments; and
(b) the amount required to achieve pay equity.
(5) Adjustments shall be made in compensation under a pay equity plan on each anniversary of the first adjustments in compensation under the plan and shall be such that during the twelve-month period following each anniversary the combined compensation payable under all pay equity plans of the employer shall be increased by an amount that is not less than the lesser of,
(a) 1 per cent of the employer's payroll during the twelve-month period preceding the anniversary; and
(b) the amount required to achieve pay equity.
(6) Except for the purpose of making retroactive adjustments in compensation under a pay equity plan or unless required to do so by an order described in clause 36 (g), nothing in this Act requires an employer to increase compensation payable under the pay equity plans of the employer during a twelve-month period in an amount greater than 1 per cent of the employer's payroll during the preceding twelve-month period.
(7) Despite subsection (6), pay equity plans in the public sector shall provide for adjustments in compensation such that the plan will be fully implemented not later than the 1st day of January, 1998.
It appears from the Order and the Application that OPSEU did not agree that the Employer’s method of calculation was correct or appropriate.
The Officer has ordered, essentially, that the Employer pay out the monies in accordance with the calculations it has made, then meet with OPSEU to discuss making further pay outs based on the calculations required by section 13 of the Act.
The Employer’s Application raises concerns both about the merits of the Order and the process by which it was reached. Principally, the Employer is concerned that the Officer has ordered it to make pay outs even though the Officer believes that the basis of calculation is incorrect, thereby creating a situation in which the Employer may overpay some employees without any mechanism for recovery.
Additionally, the Employer is concerned about the conduct of the Review Officer. The Employer alleges that the Order is based on incorrect facts and was issued as a punitive measure. As remedies, the Employer seeks the revocation of the December 7, 2001 Order; that the Officer be removed from the file; their costs “due to the conduct of the Review Officer” and:
The Employer requests that it be permitted a reasonable period of time to determine the length of time which will be required to complete the final retroactivity calculations properly and to make the payments in accordance with those calculations, the Order dated September 21, 2001 and the Act.
The Tribunal has said on a number of occasions that it will not inquire into the conduct of Review Officers, nor the process at Review Services. The Tribunal’s hearings are de novo and decisions are based solely on the evidence and submissions the workplace parties advance at the Tribunal. Moreover, the Tribunal’s remedial jurisdiction centres on resolving the workplace parties’ dispute. In Royal Crest, (2001) 11 P.E.R. 36, the panel said:
The Tribunal, as early as its first decision in Cybermedix (above), signalled that since hearings before the Tribunal are de novo, it is inappropriate and unnecessary to hear evidence about the process or conduct of the Pay Equity Office. A de novo hearing gives the workplace parties a full opportunity to present all evidence and make full submissions on the issues that were placed before the Review Officer. Parties are not limited to the submissions or information they put before the Review Officer. And the Tribunal neither receives nor reviews the information that the Review Officer considered, unless one of the workplace parties seeks to introduce it.
The Tribunal has consistently held that a de novo hearing provides a complete remedy to any frailties in the process undertaken by Review Officers, with the result that there is nothing to be gained by an inquiry into alleged inadequacies in the investigation.
As counsel for the Pay Equity Office outlined, the very structure of the Act and the description of the circumstances in which the Tribunal will hold a hearing and the remedies it can award, all point to a scheme that envisions the Tribunal focusing on the substantive disputes between workplace parties.
The remedial powers in section 25(2) are entirely devoted to addressing substantive issues. The Tribunal can order reinstatement of employees; adjust compensation; determine if a sale of business occurred; order the revision of a pay equity plan; and generally, confirm, vary or revoke the orders made by Officers. Nowhere does the Act give the Tribunal the power to censure the conduct of Review Officers.
Further, as counsel for the Pay Equity Office noted, the Tribunal's jurisdiction to hold a hearing is set out in section 25(1). That provision determines the circumstances in which the Tribunal can hold a hearing. The only subsection potentially relevant to these proceedings is 25(1)(b), which, in turn, requires a consideration of section 24(6). As set out above, section 24(6) envisions that a request for a hearing is made "... with respect to the order".
The Tribunal concludes then, that its jurisdiction to hold a hearing requires that a request for hearing is made "... with respect to the order" and that its remedial powers are pointed towards addressing substantive pay equity issues. That legislative structure influenced the Tribunal in its determination that hearings before it would be de novo. The proceedings should focus only on the substantive pay equity disputes between the parties.
In this case, a significant part of the Applicant’s pleadings relate to its concerns about the alleged conduct of the Review Officer and the process she followed. Since the Tribunal will not inquire into those issues, it is appropriate to strike them from the pleadings. Accordingly, we strike paragraphs 5, 6, 7, and 8, and the first sentence of paragraph 3 of the Employer’s Appendix A. We also strike from Appendix B, the remedial request that the Tribunal order the removal of the Officer from the file and make a cost award on the basis of the Officer’s alleged conduct.
Turning now to the substantive workplace dispute, it does not appear that the Employer contests that it must comply with the Act in making the retroactive adjustments. Rather, it appears from the application that the Employer’s initial calculations based on individual employees’ salaries were undertaken with a view to that being an acceptable negotiated outcome with OPSEU. The Employer understands that this option is not acceptable to OPSEU and now needs time to make the calculations that comply with section 13. However, in the meantime, the Employer does not want to make pay outs based on its initial calculation.
Having made an Application to the Tribunal with respect to the merits of the Order effectively precludes the Pay Equity Office from referring the Order to the Tribunal to seek compliance because of the effect of section 25(1.1):
25(1.1) A reference under subsection 24(5) respecting an order shall not proceed if the Hearings Tribunal has confirmed, varied or revoked the order following a hearing requested under subsection 23(4) or 24(6).
In essence, then, the Pay Equity Office cannot seek to enforce compliance with the Order while an application with respect to its merits is before the Tribunal and it has not been its historical practice to do so.
It is not clear to the Tribunal that there is a legal issue in dispute among the workplace parties, although we hasten to add that the time for OPSEU to file a response has not yet passed. We understand that the Employer is prepared to make the calculations required by section 13 of the Act, but needs time. What the Employer is objecting to is the requirement in the Order to make pay outs, in the meantime, based on its initial calculations, which, it appears to admit, do not necessarily comply with section 13.
If the Tribunal’s assessment is correct, then the role we may play is to assist the workplace parties to set firm but reasonable deadlines for the Employer to calculate the retroactive adjustments and pay them out. In any event, we believe that it is in the parties’ interests to set an early hearing date.
A hearing will be convened on March 6, 2002 commencing at 9:30 at a location in Ottawa which will be detailed in later correspondence from the Tribunal.
Dated at Toronto this 24th day of January, 2002.
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Mary Ellen Cummings, Chair
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Pauline R. Seville, Member
Yvonne Blaszczyk, Member