PAY EQUITY HEARING TRIBUNAL

0737-02 General Health Services o/a Circle of Life Health Services, Applicant v. Toronto East General Hospital, Collin Buchanan, Basil Chinenye, Roxanne Edwards, Respondents

Before: Mary Anne McKellar, Vice-Chair, Catherine Bickley and Margaret Kvetan,

Members

Cite as: Circle of Life Health Services (No. 2) (February 13, 2003) 0737-02 (P.E.H.T.)

DECISION OF THE TRIBUNAL, FEBRUARY 13, 2003

INTRODUCTION

1. General Health Services, o/a Circle of Life Health Services (“Circle of Life”) objects to the Order of a Review Officer dated February 7, 2002 directing the Toronto East General Hospital (“the Hospital”) to amend its non-union pay equity plan to encompass the female job classes that performed services for the Circle of Life clients. Circle of Life takes the position that it, and not the Hospital, was the employer of persons in these job classes, and furthermore, that the positions comprising the job class(es) were designated as casual and could be excluded from receiving compensation adjustments under the Pay Equity Act (“the Act”). A hearing into this Application was convened on November 25 and 27, 2002.

THE ISSUE

2. Circle of Life proposed that the Tribunal hear and determine the issue of whether the positions comprising the job class(es) were casual prior to addressing the issue of whether the Hospital or Circle of Life is the employer. The Hospital supported proceeding in this manner. Although the responding parties objected to proceeding in this fashion, after hearing all of the submissions on the issue, the Tribunal ruled that it would entertain evidence and argument and decide the issue of whether the positions comprising the job class(es) could be considered casual pursuant to subsections 8(3) and 8(4) of the Act. For the purposes of determining this issue on a preliminary basis, Circle of Life and the Hospital were prepared to have the Tribunal assume that the Hospital was the employer.

DECISION

3. The Tribunal has determined that positions comprising the job class(es) that performed services for Circle of Life cannot be designated as casual under the Act. As a consequence, this matter will be relisted for hearing for the purposes of addressing the issue of whether the Hospital or the Circle of Life was the employer of persons in those positions.

THE FACTS

4. The Tribunal heard testimony from three witnesses: Blanche O’Brien; Leslie Rogers; and Collin Buchanan. The following findings of fact are based on their testimony and the documentary evidence filed.

5. Circle of Life was a corporation set up in 1996 for the purpose of providing the Hospital with health care aides (and some Registered Nurses and Registered Practical Nurses) on an as-needed basis. For the purposes of this decision, all the persons dispatched by Circle of Life to the Hospital will be referred to as health care aides. The same services had formerly been provided to the Hospital at much greater cost by outside agencies.

6. Blanche O’Brien was the staffing manager for Circle of Life. She recruited and interviewed all of the workers on the Circle of Life roster. Ms. O’Brien appears to have been a Hospital employee, as were various staffing clerks who worked under her. Among the functions performed by the health care aides dispatched by Circle of Life to the Hospital were “sitting” with patients who needed to be monitored because they might pose a danger to themselves and others, and assisting patients with the activities of daily living (washing, dressing, eating etc.). The system worked this way. The Circle of Life health care aides indicated to the staffing clerks the days and shifts on which they were available for work, either by calling in or by writing their name in a book maintained for this purpose. The clerks would call them a day before their services were required to confirm that a shift was available. The health care aide would report to the staffing clerk and sign in, and would be provided with a name badge and be dispatched to the appropriate unit of the Hospital where he or she would perform duties assigned by and under the supervision of registered Hospital staff on that unit. The health care aides would sign out with the staffing clerk (and return their badges) once the shift was over. With the exception of performing services for two discharged Hospital patients, the Circle of Life health care aides were not dispatched to provide home care in the community. The Hospital was thus, for all intents and purposes, Circle of Life’s only client.

7. Circle of Life operated in the above fashion from September 1996 until June 2000, when it was wound down and most of the health care aides on its roster were offered employment by the Hospital directly. Over the 45 months of its operation, a total of approximately 300 people were dispatched by Circle of Life to work at least one shift in the Hospital. The hours worked by individuals on the Circle of Life roster in any given full year of its operation ranged from 1.5 to over 2000. O’Brien testified that on any given day only about 10-20% of the full complement of the roster at the time would have indicated that they were “available” to work. She did not suggest that there were ever any days on which no one was dispatched by Circle of Life, although she did indicate that the numbers required to be dispatched could vary dramatically from day to day. Indeed, on some days, health care aides still had to be obtained from other agencies to work in the Hospital.

8. The total number of hours worked by health care aides dispatched to the various Hospital units by Circle of Life in each year or part year of its operations was as follows:

1996 (4 months) 2,284.50 26 individuals

1997 10,137.47 69 individuals

1998 23,630.83 118 individuals

1999 41,239.42 150 individuals

2000 (5+ months) 28,104.16 74 individuals

9. The health care aides dispatched by Circle of Life were not included in the Hospital’s pay equity plan and were not provided with any pay equity adjustments. They were also not included in any pay equity plan posted by Circle of Life, which, if it was an independent employer from the Hospital, was a “new employer” and therefore not required to prepare a plan, but merely required to implement pay equity. In any event, the health care aides did not receive any pay equity adjustments from Circle of Life.

THE ANALYSIS

(a) Introduction

10. The determination of this issue requires the Tribunal to interpret subsections 8(3) and 8(4) of the Act. Circle of Life’s submissions focussed on the meaning to be given to the term “position” in those subsections. In order to contextualize that argument and the interpretive exercise in which the Tribunal is engaged, some brief background remarks with respect to the scheme of the Act as a whole, and the Tribunal’s previous jurisprudence is in order.

(b) The Act

11. The Act applies to all employers with 10 or more employees. The only persons who are not part of the employee count are students (see s.1(1)).

12. Employers subject to the Act are required to implement pay equity on an establishment-wide basis. An employer may have several establishments. Each establishment is comprised of all of the employer’s employees in a geographic area. The employer must determine how many “job classes” it has, and what their gender predominance is. “Job class” is defined in subsection 1(1) of the Act. It presumptively encompasses the duties and responsibilities performed by more than one person. It is a collective term.

“job class” means those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates

13. “Job classes” are comprised of “positions”. “Position” is not defined in the definition section. A “job class” may consist of a single “position” (see ss. 1(6)). It is not clear from these two provisions if “position” is a collective term encompassing the duties and responsibilities performed by more than one person, or if it does, in fact refer precisely to the work performed by any one individual in the establishment.

14. In addition to appearing in the “job class” definition and in ss. 1(6), ss. 1(7) also refers to “position” and provides as follows:

A position shall not be assigned to a job class different than that of other positions in the same establishment that [are similar to it in the ways that positions grouped in a job class are required to be] only because the needs of the occupant of the position have been accommodated for the purpose of complying with the Human Rights Code. (emphasis added)

The language of ss. 1(7) thus suggests that “position” is not a collective term, but refers to the work performed by a single individual.

15. Section 8 deals with “exceptions” to the normal requirements of the Act. Sections 8(3) and (4) provide as follows:

8(3) A position that an employer designates as a position that provides employment on a casual basis may be excluded in determining whether a job class is a female job class or a male job class and need not be included in compensation adjustments under a pay equity plan.

8(4) A position shall not be designated under subsection (3) if,

(a) the work is performed for at least one-third of the normal work period that applies to similar full-time work;

(b) the work is performed on a seasonal basis in the same position for the same employer; or

(c) the work is performed on a regular and continuing basis, although for less than one-third of the normal work period that applies to similar full-time work.

These are the subsections the Tribunal must interpret and apply to the facts of this case, so we will return to them later in the decision.

16. Subsection 9(3) of the Act requires that where a female “job class” is entitled to a pay equity adjustment, all the “positions” in that job class must receive the same adjustment in dollar terms. This subsection has been the subject of some Tribunal case law as outlined below.

17. Subsection 13(2)(c) requires that a pay equity plan set out the reasons why subsection 8(3) is relied on as justifying differences in compensation.

(c) The Tribunal’s case law

18. Subsection 9(3) has been interpreted in Glengarry (No.2) (1992) 3 P.E.R. 34 (see paragraphs 14 and 20 in particular) and Gloucester (No. 2) (1991) 2 P.E.R. 208. Both cases dealt with the situation where the pay scale for a female job class comprised several different increment levels, so that an employee’s increasing years of service in the job class entitled her to a higher wage rate. The male job class to which the female one was comparable in terms of value of work performed may have had a similar multi-step pay scale (whether or not the same number of steps) or not. Pursuant to section 6 of the Act, the total amount of the pay equity adjustment required to achieve pay equity is the difference between the top rates payable to the female job class and the top rate payable to the comparably valued male job class. Pursuant to subsection 9(3), any adjustments paid to the female job class for the purpose of achieving pay equity must be the same in dollar amounts for all positions in that job class.

19. The majority in Gloucester effectively held that subsection 9(3) required a six-step female job class pay grid to mirror that applicable to the male comparator job class. In doing so, it held that “position” referred to the work performed (and not to the individual performing it), but rejected the notion that it referred to the work performed by any individual incumbent of the job class, stating clearly that there can be more than one incumbent of any position, and rejecting the notion that each step in the grid constituted a position. If all steps of the female job class pay grid were to receive identical dollar adjustments, then a step 3 incumbent in the female job class would be paid more than her counterpart at step 3 in the male job class, although the highest paid incumbents in the male and female job classes would be paid identically. This was a result the majority clearly wanted to avoid. The difficulty with the analysis they employed is that it is hard to see how “job class” and “position” may be distinguished on their approach. The dissenting reasons accept that there may be sections of the Act in which “position” is used collectively to encompass the work performed by more than one incumbent, but concludes that it is not used as a collective term in subsection 9(3). See paragraph 9 and 16 of that dissent.

20. In Glengarry, the majority finds that all nurses should receive the same wage adjustment, regardless of where they fall in the pay scale attaching to “nurse”. The Tribunal accepted that “nurse” was a “position” rather than a job class (or perhaps a “position” co-extensive with the job class). In this case, the “nurses” were subject to a 10-step pay grid, while the male comparator received one job rate. There is also a dissent in this case, but it contains no comment whatsoever on the meaning of “position”.

(d) Argument

21. Both Circle of Life and the Hospital were represented by counsel. The three individual responding employees were not represented by counsel and only one of them attended the entirety of the hearing. Despite repeated explanations by the Tribunal, none of them seemed to appreciate the significance of the section 8 issue, and indeed none of them had brought a copy of the Act with them. These employees all wanted the Tribunal to determine the identity of the employer, and (notwithstanding our questions and directions) focussed their testimony and submissions on that issue. That evidence and those submissions are not pertinent at this stage of the inquiry, and are consequently not reproduced in this decision. The arguments of all parties with respect to the section 8 issue are set out below.

22. Before turning to the parties’ arguments, the Tribunal must note that the health care aides have not been “designated” as contemplated in subsection 8(3), which designation the panel takes to mean complying with the requirements of section 13(2)(c), and identifying casual positions in a pay equity plan. The health care aides were not so designated by the Hospital, presumably because it takes the view that they are not its employees, and were not designated by Circle of Life, presumably because if it was a separate new employer it was not obliged to prepare a plan. The issue was argued before the Tribunal not on the basis of whether they had been designated, but on the basis of whether the circumstances of the employment of the health care aides were such that they could have been so designated, having regard to the language of subsection 8(4).

23. Circle of Life referred the Tribunal to the classic employment law definition of casual employment. There is no doubt that it accurately describes the circumstances in which these health care aides were employed, but it is of no assistance in the present case, which must be decided on the basis of the statutory language and not on the basis of the common law. Furthermore, the common law test does not appear to support the position of Circle of Life and the Hospital as it appears to suggest that for each individual employment contract an assessment must be made of whether that contract provides employment on an occasional basis. That approach is inconsistent with the analysis these parties urged upon the Tribunal, and which is set out below.

24. Circle of Life argued that “position” is a collective term and does not refer to any individual employee or incumbent. Counsel then argued that the annual full-time hours for a health care aide (7.5 hours per day x 5 days per week x 52 weeks) are 1950, such that one third of those hours is 650. Looking at the number of individual health care aides on the Circle of Life roster who worked more than 650 hours (or that amount pro-rated) on an annual basis reveals that it was never more than 50% of them. Consequently, the employer (whoever it was) could have designated them as casual under subsection 8(3) because none of the disqualifying conditions set out in subsection 8(4) applied. Counsel argued that it could not be said that as a group their average hours worked were equivalent to at least one-third the normal work period that applied to similar full time work (subsection 8(4)(a)). Counsel also looked at the frequency of work performed by the health care aides, and found that the majority of them (close to two-thirds or so) were not dispatched by Circle of Life to perform work in the Hospital for any period longer than 3 consecutive months. He concluded therefore that as a group they did not on average perform work on a regular and continuing basis (subsection 8(4)(c)).

25. The Hospital adopted Circle of Life’s submissions set out in paragraph 24.

26. The only individual responding employee who attended and made closing submissions noted that he worked almost every day and almost full-time hours. This assertion was not disputed by Circle of Life, and indeed appears to be borne out by the records filed.

(e) Possible Analyses

27. In the Tribunal’s view, there are three possible analyses of subsections 8(3) and 8(4). Each of them is summarized below, along with the Tribunal’s reasons for accepting or rejecting them.

28. The first possible analysis is to interpret “position” as referring to the work performed by any given individual in a job class. Essentially, this is the argument of the responding employee. On this analysis, a position may have an incumbent, or it may be vacant. Applying subsection 8(3) and (4) consistent with this analysis would mean that individual health care aides who worked 650 hours or more annually, or who worked fewer hours but worked on a “regular and continuing basis” could not be considered to occupy positions providing employment on a casual basis. Those health care aides would have to be included in any pay equity plan required and would be eligible for compensation adjustments. Individual health care aides who did work fewer than 650 hours annually, and worked only intermittently could be considered casual and not eligible for compensation adjustments.

29. At least two difficulties would appear to be the inevitable consequence of the analysis outlined in paragraph 28. The first difficulty is that the employer (whoever it is) could not necessarily anticipate at the beginning of any annual period which employees could end up being considered “casual” at the end of the year, and which would not. The Tribunal is examining this particular employment situation ex post facto, such that all the information is now available to enable us to make individual determinations of who was “casual” and who was not based on patterns of employment and volume of hours worked, but an employer must be able to determine this contemporaneously with the performance of the work. Subsection 8(3) clearly contemplates that the “casual rate” need not be adjusted by any amount in respect of pay equity. On an ongoing basis adopting this definition of position would mean that an employer could not know at the time it called someone in for work what rate they might ultimately be required to pay that individual. The second foreseeable difficulty with this approach to “position” is that it appears inconsistent with the fundamental premise of the Act, which is to provide for compensation schemes based on the value of work performed, and not on the basis of the identity or personal circumstances of the persons performing the work. For these reasons, the Tribunal rejects the analysis that position in subsections 8(3) and 8(4) refers to the work performed by a single individual in a job class.

30. The second possible analysis is the one proffered by Circle of Life and summarized in paragraph 24 above. The difficulty with this argument is that it appears to the Tribunal statistically suspect and inconsistent to treat “position” as encompassing all the health care aides dispatched by Circle of Life, but then to average their hours on an individual basis. This argument also seems to disregard the fact that the critical concept in subsection 8(4) is “the work”. Surely “the work” of the “position” is all the hours in which it is performed. Finally, as does the approach considered above, this analysis does not permit an employer to determine whether a position is one providing casual employment except on an ex post facto basis. For these reasons, we also reject this second approach.

31. The third possible analysis is to focus on the meaning of the term “the work” in subsection 8(4) rather than on the term “position”. Because subsection 8(4) is disjunctive, only one of (a), (b) or (c) need accurately describe the “work” for the designation of it as casual to be inappropriate. Focussing on (c), it is clear on the evidence that Circle of Life dispatched health care aides on a regular and continuing basis to perform work in the Hospital. The fact that different health care aides may have been dispatched at different times does not alter the fact that the work was consistently performed. This is essentially the basis on which the Review Officer made her Order.

32. The appeal of this approach outlined in paragraph 31 is that it appears consistent with the overarching principles of the Act because it focuses on the value of the work performed and not on the circumstances of the individual persons performing it. It also allows for uniform treatment of the health care aides (unlike the first approach), and enables employer and employee to predict with greater certainty in advance of the date on which work is to be performed whether it is payable at a “casual rate” or a pay equity adjusted rate. For these reasons, the Tribunal finds that the work performed by the health care aides dispatched by Circle of Life was performed on a regular and continuing basis. Consequently, pursuant to subsection 8(4)(c) of the Act, the position of these health care aides could not be designated as casual pursuant to subsection 8(3) of the Act.

ORDER

33. With respect to her determination on the subsection 8(3) and 8(4) issue only, the Review Officer’s Order is confirmed.

CONTINUATION OF THE HEARING

34. The Tribunal understands the remaining issue between the parties to be whether the health care aides were employed by Circle of Life or the Hospital. The consequence of a finding that they were employed by the Hospital would be that they ought to have been included in some fashion in the Hospital’s pay equity plan. Whether they should have been included as a stand-alone job class or as part of another job class is not before the Tribunal on this Application, nor is any issue about the gender predominance or value of any job class in which they might be included. If the Tribunal finds the Hospital to be the employer of the health care aides, those health care aides may be or become entitled pursuant to the Hospital’s pay equity plan to receive an amount equal to the difference between the hourly rate at which they were paid and the pay equity adjusted rate payable to their job class under that plan. For example, one of the responding employees might be entitled to a pay equity adjusted rate for each of the 50 hours she worked as a health care aide. Any such entitlement would flow from the pay equity plan itself, however, which is not at issue in this proceeding. The responding employees should be aware that in disposing of this Application the Tribunal will only be deciding the issue of who their employer was, and will not be deciding whether they are entitled to any compensation adjustments or any other form of monetary relief, nor will it be ordering such relief.

35. The Registrar is directed to re-list this matter for hearing, so that the Tribunal may address the issue of whether Circle of Life or the Hospital was the employer of the health care aides. The parties are directed to advise the Registrar in writing by February 28, 2003 of the number of hearing days they anticipate will be required for this purpose. Should all the parties make a consent request, the Tribunal will convene a further Pre-Hearing Conference.

Dated at Toronto this 13^th^ day of February, 2003

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Mary Anne McKellar, Vice-Chair

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Catherine Bickley, Member

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Margaret Kvetan, Member