1722-06-PE Tammy Fedoruk, Applicant v. Thunder Bay Police Service, and Thunder Bay Police Association, Respondents.
BEFORE: Mary Ellen Cummings, Chair, Margaret Kvetan and Pauline R. Seville Members.
CITE AS: Thunder Bay Police Service (1722-06-PE, November 1, 2006 (P.E.H.T.))
DECISION OF THE TRIBUNAL; November 1, 2006
Tammy Fedoruk works as a Communication Supervisor with the Thunder Bay Police Services. It appears that Ms. Fedoruk is represented by the Thunder Bay Police Association (“the Association”) in her employment. It does not appear that Ms. Fedoruk served a copy of her Application on the Association although she identified it as her representative. Since it is the bargaining agent with responsibility, with the Employer, for the plan, it is a necessary party to any application brought by an employee in the bargaining unit (section 32(1)(c) of the Pay Equity Act, R.S.O. 1990, c. P.7 , as amended ( “the Act”). Therefore, we have added the Association to the style of cause. All parties must serve any documents or pleadings on the Association. Ms. Fedoruk is directed to serve a copy of her Application on the Association and the Employer is directed to serve a copy of its Response on the Association.
Ms. Fedoruk had made an Application in respect of a Notice of Decision issued by a Review Officer on June 6, 2006. The Review Officer considered a number of concerns raised by a group of Communication Supervisors about how the Thunder Bay Police Service (“the Employer”) and the Thunder Bay Police Association (“the Association”) had negotiated and implemented pay equity. The Officer concluded that the Employer and the Association had not violated the Act.
Although the Officer dealt with a number of concerns, in her Application to the Tribunal, Ms. Fedoruk only addresses one. Consequently, we conclude that Ms. Fedoruk is not challenging any of the other conclusions reached by the Officer. Ms. Fedoruk asserts that when the Association and the Employer evaluated the new position of Communication Supervisor, that job class should have received at least as many points as the Emergency Response Officer. In her application, Ms. Fedoruk states that the Emergency Response Officer position was eliminated in 1990 and that the Communication Supervisor position was created in 1993. Ms. Fedoruk asserts that the female dominated Communication Supervisor performed all the duties, and more, of the male dominated former Emergency Response Officer. On that basis, Ms. Fedoruk argues, the Communication Supervisor position ought to have received at least as many points when it was evaluated in 1993.
In its response, the Employer disagrees that the Communication Supervisor performs the same duties as the Emergency Response Officer, and details why. But more fundamentally, the Employer asserts that since the two job classes did not exist at the same time, there is no obligation under the Act that their evaluations be consistent with one another.
As we understand the facts, we agree with the Employer’s concerns. The Employer and the Association created a pay equity plan in 1990. According to the Employer, the position of Emergency Response Officer was eliminated before the plan was completed. But in any event, both the Employer and Ms. Fedoruk agree that by 1993, when the Association and the Employer were evaluating the new position of Communication Supervisor, the Emergency Response Officer no longer existed, and so, would not be part of the pay equity plan.
Section 7 of the Act requires employers and trade unions to “establish and maintain compensation practices that provide for pay equity”. Meeting that obligation requires employers and unions to review their pay equity plans as positions are added or eliminated from the bargaining unit, or as duties and responsibilities are altered. The plan must be up to date and respond to present realities of the workplace. But the union and the employer are not required by the Act to reach back in time and ensure that a new position is evaluated consistently with a position that is no longer part of the plan. To achieve pay equity, employers and trade unions applying the job-to-job comparison method, must ensure that female job classes are paid at least as much as equal or comparable male job classes (section 5). In carrying out that task, unions and employers are focused on existing jobs.
As we read Ms. Fedoruk’s Application, she is seeking a remedy that the Tribunal would not grant. Even if we accepted all of her assertions, we would not order the Employer and the Association to ensure that the Communication Supervisor job class received the same evaluation as the Emergency Response Officer because those jobs did not exist at the same time.
The Employer has asked the Tribunal to dismiss this Application without holding a hearing on the basis that the Application cannot succeed. The Tribunal has long exercised its discretion to dismiss an Application that does not plead a prima facie case for the remedies sought. The test the panel applies is set out in Peterborough Firefighters (No. 1) (1991), 2 P.E.R. 86 at paragraph 6:
On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decide whether the applicant has made out a case on the face of the written material filed as the application. For this purpose, the applicant is permitted to make its best case by treating everything it has alleged as if it were true. A failure to establish a prima facie case means that even if the applicant could prove all its allegations, the tribunal could do nothing for it because the facts alleged do not constitute a violation of the relevant statute. If the applicant's best case does not provide the basis for a remedy, the application is dismissed; if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the case proceeds to permit the applicant to prove its allegations and the respondent to respond to them.
The Tribunal inquires as to whether a prima facie or arguable case has been made out to avoid potentially wasting both parties' and the Tribunal's resources on a proceeding that has no likelihood of success and to provide applicants with an opportunity to give any further relevant information.
Before the Tribunal determines whether this Application should be dismissed for failure to make out a prima facie breach of the Act, Ms. Fedoruk may make any further submissions she wants the Tribunal to consider. Those submissions should be served on the Employer and the Association and filed with the Tribunal by no later than Monday, December 4, 2006.
If the Tribunal determines that the matter will proceed, we will direct the Association to file a response.
Dated at Toronto, Ontario this 1st day of November, 2006.
“Mary Ellen Cummings”
Mary Ellen Cummings, Chair
“Margaret Kvetan”
Margaret Kvetan , Member
“Pauline R. Seville”
Pauline R. Seville, Member