Hatts Off Specialized Services Inc. v. Employees of the Employer not represented by a bargaining agent, 2005 CanLII 60098

Hatts Off Specialized Services Inc. v. Employees of the Employer not represented by a bargaining agent

0731-01-PE and 0757-03-PE Hatts Off Specialized Services Inc., Applicant v. Employees of the Employer not represented by a bargaining agent, Respondents.

BEFORE: Mary Ellen Cummings, Chair, Catherine Bickley and Margaret Kvetan Members.

APPEARANCES: Leslie Leroux, Gail Polskey, Gord Naylor and Aladine Hanna for the applicant; no one appearing for the respondents

CITE AS: Hatts Off Specialized Services (No. 4) 0731-01-PE and 0757-03-PE (P.E.H.T.)

DECISION OF THE TRIBUNAL; March 23, 2005

1Hatts Off Specialized Services Inc. (“Hatts Off” or “the Applicant”) had initially sought a review of two Orders of Review Officers made pursuant to the Pay Equity Act, R.S.O. 1990, c. P.7 , as amended ( “the Act”). However, at the start of the hearing, the Applicant indicated that it was no longer seeking a variation or revocation of the Order dated October 30, 2000, which was the subject of the Application in Tribunal File No. 0731-01-PE. Consequently, the Tribunal affirms the October 30, 2000 Order. Hatts Off is a seeking employer for the purpose of using the proxy method of comparison in accordance with the requirements of Part III.2 of the Act.

2The second Order, dated April 7, 2003 concluded that the job classes of Bookkeeper, Child and Youth Worker and CYW Supervisor are female job classes. The Applicant disagrees. It asserts that the Bookkeeper is a male job class and that the Child and Youth Worker and the CYW Supervisor are gender neutral job classes, within the meaning of the Act.

3The testimony of the Applicant’s witnesses was uncontradicted. Although a number of employees had filed responses, and were given notice of the hearing, none attended.

4Gord Naylor, Hatts Off’s founder and Executive Director testified about the nature of the operation, its history and fundamental principles. Mr. Naylor had worked as a family protection worker in the Hamilton area, where he saw a need to provide residential treatment facilities for children and youth that could respond to the particular needs of each child. He and his wife believed that the best setting reflected that of a typical family. His first group home, in 1985, was headed by him and his wife, with their own children and four foster children. When that home was running well, Mr. Naylor’s family moved to another home, and began again, hiring staff for the first home. According to Mr. Naylor, Hatts Off continued to grow in this fashion, with each home run by a team of a male and female Child and Youth Workers. Mr. Naylor said that the children and youth they serve come from homes where typically one adult in the home has caused the difficulty. His hope is that by re-creating a home headed by a man and a woman, the children can develop relationships with both, and the different skills of both can be used as the need arises. Some youth, for example, are aggressive and require physical restraint.

5The Child and Youth Workers work a weekend and then 5 afternoons in a row. In that time, they are responsible for shopping, meal preparation, cleaning, activities and taking children to appointments. The shift is set up in this way to maintain continuity. At the end of the seven days, a new team of a male and female Child and Youth Worker takes over. It is expected, Mr. Naylor said, for the Child and Youth Workers to act as a team, sharing equally in all of the tasks. In addition to managing the day to day living, Child and Youth Workers are responsible for meeting the clinical goals for each child, which involve their social, emotional and intellectual well-being. Each child in care is assigned to a Child and Youth Worker who acts as the primary staff, maintaining a daily log of progress towards goals and preparing and presenting a report on the child at the monthly case conference that is conducted with Mr. Naylor, a social worker and the CYW Supervisor. New goals are set and the Child and Youth Worker returns to the home to implement them, with the rest of the staff.

6Mr. Naylor explained that in 1991, as the operation was growing, they decided it was important to articulate the goals and values under which they flourished, and so created a document called Unifying Principles. Mr. Naylor reviewed all of them for the Panel, but emphasized those he thought relevant, which included “Striving for equality of men and women”, “preservation of unity in diversity” and “work toward viewing life experiences as challenges to grow”. Mr. Naylor communicated that they seek to raise and nurture children and youth in an environment that replicates a healthy family, with stability and consistency, while valuing the contributions and differences of all.

7The CYS Supervisor is responsible for the overall running of a home, leading the two teams of Child and Youth Workers and the overnight staff, who are not in issue before us. CYS Supervisors are typically Child and Youth Workers from Hatts Off, since it seeks to promote and reward from within. The CYS Supervisor meets regularly with the Child and Youth Workers, co-ordinates their activities, historically took care of children who were ill during the day, and attends management meetings to report on the working of the home. The CYS Supervisor ensures that treatment and health care appointments are made and confirmed, and that the Child and Youth Workers meet their responsibilities for the well-being of the residents. The CYS Supervisor is also responsible for creating and implementing development plans for Child and Youth Workers.

8At this point, the operation has grown to serve 175 children in 18 group or treatment homes, and 55 foster homes. In addition to residences, Hatts Off operates schools for hard to serve children, that take place in the homes, under arrangements with local school boards. Hatts Off doubled in size in early 1993 when it took on the operations of a struggling agency in Hamilton. But throughout its history, Mr. Naylor said, the Applicant has maintained an equal balance of males and females in the Child and Youth Worker position and in the CYS Supervisor position.

9Aladine Hanna, the Applicant’s Finance Director, testified about the creation of the pay equity plan, in his capacity as a member of the Job Evaluation Committee (“the Committee”). When Hatts Off discovered its obligation to prepare a proxy plan, he attended training provided by the Pay Equity Office and a committee of three was appointed. Because the Panel was focused on the decision-making that concerned how gender incumbency was determined, we will not set out Mr. Hanna’s evidence on other matters, such as his confirmation that the plan was posted, and then re-posted at the end of the objection period.

10Mr. Hanna explained that in determining the gender incumbency of job classes, the Committee knew that it had to consider present incumbency, historical incumbency and gender stereotyping. Mr. Hanna introduced the historical data he generated that show in the period 1992 to 2001, the historical incumbency of the Child and Youth Worker was neutral, the CYS Supervisor was neutral and the bookkeeper was male. In the Panel’s view, there is no need to comment further on the historical incumbency documentation in relation to the Child and Youth Worker and CYS Supervisor. Consistent with Mr. Naylor’s testimony, it shows a balanced employment of men and women in both job classes over a nine year period. The Applicant has had only one bookkeeper throughout its history, except for a short period when the incumbent was ill and his temporary replacement was also male.

11Mr. Hanna testified about the considerations of the Committee around gender stereotyping. He said that the Committee considered that the goal of the agency was to replicate the typical family, which consisted of a male and a female parent, who were equally responsible for the care of the children and the running of the household. He knew that other agencies, such as the one Hatts Off took over, operated with a similar treatment focus.

12Gail Polskey, Hatts Off’s Director of Service, and another member of the pay Committee, echoed Mr. Hanna’s evidence. She added that in reviewing applications for jobs such as Child and Youth Workers, Hatts Off had never had difficulty maintaining an equal balance of men and women, suggesting to her that both were working in the profession in equal numbers. Moreover, her connections with training colleges such as Mohawk College in Hamilton confirmed that in the 1994 to 1996 period, men and women were equally entering the program.

13Neither Mr. Hanna nor Ms. Polskey testified about any considerations of gender stereotyping in respect of the Bookkeeper position.

Argument and Analysis

14Section 1(1) of the Act contains the relevant definitions of “job class”, “female job class” and “male job class”:

“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

“female job class” means, except where there has been a decision that a job class is a male job class as described in clause (b) of the definition of “male job class”,

(a) a job class in which 60 per cent or more of the members are female,

(b) a job class that a review officer or the Hearings Tribunal decides is a female job class or a job class that the employer, with the agreement of the bargaining agent, if any, for the employees of the employer, decides is a female job class

“male job class” means, except where there has been a decision that a job class is a female job class as described in clause (b) of the definition of “female job class”,

(a) a job class in which 70 per cent or more of the members are male, or

(b) a job class that a review officer or the Hearings Tribunal decides is a male job class or a job class that the employer, with the agreement of the bargaining agent, if any, for the employees of the employer, decides is a male job class

(5) In deciding or agreeing whether a job class is a female job class or a male job class, regard shall be had to the historical incumbency of the job class, gender stereotypes of fields of work and such other criteria as may be prescribed by the regulations.

15There is no dispute that the definition of “job class” is met in each case. There is also no doubt that the job class Bookkeeper meets the numerical definition of a male job class. Similarly, there is no doubt that the Child and Youth Worker and the CYW Supervisor do not meet the numerical definition for a female job class nor for a male job class.

16It is worth noting that at the point the Review Officer reviewed the plan, it had been posted in the workplace, although it is not clear to the Tribunal that the plan was “deemed approved” within the meaning of section 15 of the Act because the Employer had agreed that the plan it posted could be reviewed by the Review Officer.

17The Review Officer concluded that all should be found to be female job classes based on the consideration of gender stereotyping of the fields of work. With respect to the Bookkeeper job, the Officer relied on Human Resource Development Canada’s Occupational Profiles, which showed that 89.5% of persons in the bookkeeper occupation are female. In respect of the Child and Youth Worker and CYW Supervisor, the Officer concluded, based on her discussions with program co-ordinators at two community colleges, that the graduation rate in the Child and Youth Worker diploma program is 9 females for every male. The Officer concluded that since the diploma is required for hiring as a Child and Youth Worker or for a CYW Supervisor, the available labour market was predominantly female, and that factor likely lowered the value that the market has placed on the work, the very problem the Act was intended to address. The Officer commented that she had not received information from the Applicant establishing that it received an equal number of applications from males and females.

18We highlight the conclusions and analysis of the Officer to identify the aspects of the Order which the Employer disputes.

19Counsel for Hatts Off argued that the Tribunal has consistently held that in determining the gender predominance of a job class, a range of reasonable options is available, with the result that the Tribunal will not readily interfere in those decisions, whether made by employers in respect of a non-union plan, or by an employer and a bargaining agent in a negotiated plan. In Parry Sound District Hospital (No.2) (1995), 7 P.E.R. 72., the Tribunal noted at paragraph 70 that where the numbers of present incumbents results in the job class being gender neutral, “…characterizing these jobs as gender neutral may not readily be viewed as a contravention of the Act”. The Tribunal acknowledged that a consideration of historical incumbency and gender stereotyping might result in a different outcome, but an outcome based on present incumbency was not unreasonable.

20In G.L&V Process Equipment Group Inc (No.3). (1999) 10 P.E.R. 50, the Tribunal outlined a two-step process for determining the gender dominance of a job class. The first step requires a calculation of the gender predominance at the effective date of the Act, January 1, 1988. The second step, which requires a review of both the historical incumbency and the gender stereotyping of the job class “…provides a means of testing the validity of the results of the first. Implicit in the section is the possibility that each methodology may lead to a different result”(paragraph 23). The Tribunal concluded that section 1(5) of the Act required the employer to consider both historical incumbency as well as gender stereotyping, but did not say that those considerations would necessarily “trump” the numerical calculation of present incumbency.

21In this case, counsel argued, Hatts Off calculated the present gender incumbency, then tested it against the historical incumbency, thus complying with the Tribunal’s directions in GL&V Process Equipment Group Inc. The analysis of the historical incumbency confirmed the Applicant’s initial conclusions. Then, counsel submitted, Hatts Off made inquiries about gender stereotyping in the child and youth worker fields of work, by contacting community colleges. Counsel submitted that this Applicant turned its mind to the tests set out by the Tribunal, and made a decision that is reasonable.

22We agree that the Applicant turned its mind to all of the relevant factors in respect of the Child and Youth Worker and the CYW Supervisor, as set out in the evidence of Mr. Haladine and Ms. Polskey. The Committee collected and reviewed the information in respect of the present incumbency, and historical incumbency, which all pointed strongly to the job classes being gender neutral. Hatts Off made some efforts to determine gender stereotyping, and did not receive any information that would cause it to re-think its initial position. In the Tribunal’s view, when both the present and historical incumbency of well-populated job classes point strongly to the same result, it would be the unusual case where a consideration of gender stereotyping in fields of work would result in a complete reversal. While it is important to consider gender stereotyping in fields of work, the Act’s overall structure contemplates developing pay equity in each establishment of an employer, thus placing a particular focus on the reality of each workplace. In this case, the Applicant led uncontradicted evidence that it has consistently sought to maintain an even number of men and women in both the Child and Youth Worker and CYS Supervisor job classes. We should not lightly undervalue the evidence that supports that policy. We conclude that the Applicant has considered all of the relevant criteria and reasonably decided that the Child and Youth Worker and CYS Supervisor job classes are gender neutral.

23In respect of the Bookkeeper job class, Hatts Off led no evidence, even when prompted, that any consideration was given to the gender stereotyping of this field of work. In our view, where the job class has a single incumbent, who has held the job for many years, a consideration of historical incumbency may not be as useful a factor. Consequently, some weight must be given to gender stereotyping of this field of work. We are not suggesting that the collection of data in this area would necessarily lead to a different result, but some consideration must be given. We direct the Applicant to investigate the gender stereotyping of the bookkeeping field of work, and to include that information in determining the gender of the Bookkeeper job class.

Disposition

24We hereby vary the Order of April 7, 2003 as follows. Hatts Off has made a reasonable determination that the job classes of Child and Youth Worker and CYW Supervisor are gender neutral job classes. Hatts Off has not considered all of the relevant factors in concluding that the Bookkeeper is a male job class, and the Applicant is directed to inquire into and consider gender stereotyping in that field of work.