Comport Communications International v. Pay Equity Commission
4067-05-PE Comport Communications International, Applicant v. Pay Equity Commission, Respondent.
BEFORE: Mary Ellen Cummings, Chair, Margaret Kvetan and Pauline R. Seville Members.
CITE AS: Commport Communications International (No.2), July 14, 2006 File No. 4067-05-PE (P.E.H.T.)
DECISION OF THE TRIBUNAL; July 14, 2006
1. This is an Application brought by an employer, in respect of an Order of a Review Officer, dated February 23, 2006. The Order determines that Commport Communications International (“the employer”)failed to establish and maintain pay equity, as required by section 7 of the Pay Equity Act, R.S.O. 1990, c. P.7 ,as amended ( “the Act”).
2. There are a number of procedural issues that may have to be determined, including whether the Tribunal should direct that broad notice of this Application be given to all present and former employees of Commport Communications International, and what role, if any, the Pay Equity Commission should take in these proceedings.
3. However, as the Pay Equity Commission has pointed out in its response, it is not clear to the Tribunal that Commport Communications International has pleaded a prima facie or arguable case. In other words, even if the Tribunal accepted everything that Commport Communications International has pleaded as true, we would still conclude that the Order should not be revoked.
4. The Order sets out a history of contact with Commport Communications International around determining what steps, if any, it had taken to comply with the Act. Ultimately, the Review Officer concluded that the employer had not taken appropriate steps, and directed it, in some detail, to collect job information, evaluate jobs, make comparisons, pay adjustments and to post the Order in the workplace. The employer was also directed to report to the Officer as it complied with the steps.
5. The employer asserts that none of this is necessary because it has a corporate policy statement, dated December 1996, revised in December 2004, said to be “Adjusting to meet pay equity requirements” entitled Equal Opportunity and Pay Equity. We will reproduce the whole of the policy:
Policy: Commport maintains and encourages an equal opportunity employment standard, where human resources planning and development are unbiased and neutral toward sex, age, race, religion, nationality, sexual orientation and physical abilities or limitations for any and all positions, jobs, tasks or functions.
No job, task, position or function shall be created, developed treated as or evolve into one that can be seen, interpreted, or considered to be oriented exclusively toward male of female staff, nor shall hiring or promotion practices give the impression that such classification exists.
There shall exist only one pay scale plan and said plan shall be based on a standard pay rate for all basic starting employees, shall include a standard end-of-probationary period pay increase and shall also include, when economically possible, an across the board merit based pay increase plan for all employees.
Employees hired at pay rates above the standard starting rate shall exhibit and be able to prove through references and or known abilities such experience, training, job related activities and combinations thereof that warrant such pay rates. These employees shall be subject to merit increases thereafter.
Employees may accelerate through the pay scale as a result of promotion, or the achievement of educational levels, where the course(s) have been pre-approved, or the acceptance of additional functions, duties, tasks that may arise or be offered by management from time-to-time.
Job Neutrality: All positions within Commport and subsidiaries carry the same level of importance and reason-to-be. Although for organizational performance and the ease of management there are superior and sub-ordinate positions, the importance of each level of reporting carries the same corporate importance factor.
6. There is nothing wrong with an employer setting out a broad policy promoting human rights, fairness and equitable principles in the setting of compensation. However, such a policy statement is not a substitute for demonstrating and implementing the very specific requirements of the Act.
7. Section 7(1) of the Act imposes an obligation on every employer to “establish and maintain compensation practices that provide for pay equity in every establishment of the employer”. Section 5.1(1) tells employers when pay equity has been achieved, that is “…when every female job class has been compared to a job class or job classes under the job-to-job method of comparison or the proportional values method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.”
8. Commport Communications International has not adduced any material facts to suggest that it has taken any of those steps. Instead, it asserts that because it has implemented a pay equity policy, those steps are unnecessary. With respect, Commport Communications International is wrong. All employers, except those private sector employers with fewer than 10 employees are required to take those steps.
9. 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 paragraphs 6 and 7:
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.
An applicant must make out a set of circumstances which, if proved, the Tribunal can rectify in the manner requested by the applicant. There are times when the applicant may make out a case which could be rectified by the Tribunal, but does not provide sufficient information for the respondent to answer the case fully; then the Tribunal might order the applicant to provide further particulars about the circumstances underlying its claim. But such cases must be distinguished from those in which it is clear on the material filed by the applicant that the Tribunal could not rectify the circumstances set out by the applicant in the manner requested; then there is no point in proceeding: hence the authority to dismiss for failure to establish a prima facie case.
10. 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.
11. On our review of the pleadings of Commport Communications International, it does not appear that a prima facie case has been made out. Put simply, even if we accepted that the employer has implemented its pay equity policy, we would not conclude that it was relieved of meeting the steps set out in the Act to establish and maintain pay equity, as defined by the Act, in its workplace. Consequently, we would be unlikely to revoke the Review Officers Order because it essentially sets out a path for the employer to take to demonstrate how it has met its obligations under the Act.
12. However, before dismissing the Application, we would like to give the employer a further opportunity to make any submission it wants the Tribunal to take into account. The Applicant must serve its submissions on the Pay Equity Office, and file it with the Tribunal by no later than August 8, 2006.
Dated at Toronto, Ontario this 14th day of July, 2006.
“Mary Ellen Cummings”
Mary Ellen Cummings, Chair
“Margaret Kvetan”
Margaret Kvetan , Member
“Pauline R. Seville”
Pauline R. Seville, Member