Tammy Fedoruk v. Thunder Bay Police Service, 2007 CanLII 62085

Tammy Fedoruk v. Thunder Bay Police Service, and Thunder Bay Police Association

File No.: 1722-06-PE Before: Mary Ellen Cummings, Chair, Margaret Kvetan and Pauline R. Seville Members. Cite as: Thunder Bay Police Service No. 2 (1722-06-PE, January 16, 2007 (P.E.H.T.)) Decision of the Tribunal: January 16, 2007

1Tammy Fedoruk works as a Communication Supervisor with the Thunder Bay Police Service (“the Employer”). She brought an Application to the Tribunal in respect of a Review Officer’s Notice of Decision which concluded that the Thunder Bay Police Association (“the Association”) and the Employer had not contravened the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”).

2It appeared to the Tribunal that Ms. Fedoruk had not pleaded a prima facie or arguable contravention of the Act. That is to say, even if we had accepted everything Ms. Fedoruk had alleged as true, it would not amount to a contravention of the Act and the Tribunal would award no remedy. In such a case, the application should be dismissed because it has no chance of success.

3In her Application Ms. Fedoruk focused on only one of the issues dealt with by the Review Officer, that is, that when the Association and the Employer evaluated the new position of Communication Supervisor, that position should have received at least as many points as the Emergency Response Officer, a position eliminated in 1990. In a decision dated November 1, 2006, we set out why we did not believe that Ms. Fedoruk had pleaded a prima facie case that the Act had been contravened. The Employer and the Association were not required 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. We gave Ms. Fedoruk an opportunity to make further submissions on that issue and to indicate whether there were any other issues dealt with by the Review Officer that she would like the Tribunal to consider.

4Ms. Fedoruk provided detailed submissions. Ms. Fedoruk understands that the Act does not require an employer and trade union to “reach back” and ensure a new position gets as many points as a previous position that, in her view, performed substantially the same tasks. But she submits that the Act ought to be amended to prevent an employer from eliminating a male dominated job, and a short time later create a position with similar duties but pay it less. We should note that the Employer does not agree that the jobs are similar and the parties agree that there was at least a three year gap between the elimination of the old job and the evaluation of the new job, although Ms. Fedoruk alleges that the new position was created less than one year after the elimination of the old.

5We are satisfied that Ms. Fedoruk has not pleaded a violation of the Act in respect of the initial evaluation of the Communication Supervisor. Employers and trade unions are not obliged to maintain consistency in the evaluation of new jobs as against historical jobs. Instead, they are required to compare all existing female jobs to all existing male jobs. There is some suggestion in Ms. Fedoruk’s submission that the Association and the Employer’s actions resulted in the elimination of a higher paid male job and its replacement with a lower paid female job. In some circumstances, such an allegation might cause the Tribunal concern. But Ms. Fedoruk is complaining about events and decisions that occurred in 1990, 1991 and 1993. Although there are no express time limits in the Act, as the Officer said in her Notice of Decision, we should be reluctant to embark on an investigation of decisions that have gone unchallenged for such a long period of time, particularly where no clear contravention has been alleged.

6Ms. Fedoruk has raised other concerns that were dealt with by the Review Officer. She takes issue with the new banding implemented by the Association and the Employer because it had the effect of denying the Communication Supervisors a pay equity increase, and narrowed the gap between them and the persons they supervise, the Communication Operators. In addition, Ms. Fedoruk asserts that the Pay Equity Committee failed to re-evaluate the Communication Supervisor in a timely way. She wrote that the position had undergone drastic change in 1996 with the addition of new dispatch responsibilities for Fire and 911, but the re-evaluation did not occur until 2005, at which time the new banding was introduced. She argues that if the position had been re-evaluated when it should have in 1996, it would have happened before the new banding was introduced, and the job class would have got an increase.

7We cannot be certain what would have happened had the job been re-evaluated earlier. It is equally possible that the re-evaluation would have triggered an appropriate earlier review of the banding.

8At bottom, Ms. Fedoruk is frustrated because a re-evaluation of the Communication Supervisor did not trigger enough of a change to result in a pay equity adjustment, because of the changes to the banding. But the Communications Operator job was re-evaluated at the same time, and the result generated a pay equity adjustment to that job, and lessened the gap between them and the Communication Supervisor. It is worth noting that the Act does not require that employers and trade unions assure internal consistency between the evaluations and compensation paid to female job classes. Although many employers for good reason want to maintain internal consistency among all jobs, the Act only requires that female job classes be paid equally to comparable male jobs. At its simplest, Ms. Fedoruk is complaining about the relationship between the evaluation and pay of two female job classes, a concern that the Act does not address or seek to remedy.

9The final issue raised by Ms. Fedoruk is a suggestion that the Association and the Employer should have used the “group of jobs” approach, to assist in maintaining the historical pay differential between the Communication Supervisor and Communications Operator job classes. As Ms. Fedoruk acknowledges, that was an option available to the Association and the Employer. However, it was up to them to decide whether to make use of that option. The Tribunal has held in a number of cases (see for example Management Board Secretariat, (1993) 4 P.E.R. 58) that when an employer and a trade union negotiate a pay equity plan, and then implement it, the plan is deemed approved. Members of the bargaining unit are bound by the result. At paragraph 29 of Management Board Secretariat, the Tribunal wrote "The Act then, accords no role to employees who are represented by a bargaining agent in the negotiation or implementation of pay equity. Where a bargaining unit exists, the bargaining agent exercises these rights on behalf of members."

10However, the Tribunal also recognized that employers and trade unions cannot ignore their obligations under the Act with impunity. If a member of a bargaining unit alleges that a pay equity plan does not meet standards that are explicitly set out in the Act, then the Tribunal will consider the complaint. The Tribunal recognized though, that in meeting those standards, some deference must be given to the negotiating parties, because many aspects of achieving pay equity are not capable of absolute determination. Choices are available to employers and trade unions. One of those choices is whether or not to use the group of jobs approach. As Ms. Fedoruk acknowledged, the decision not to use the group of jobs approach does not amount to a violation of the Act.

11We have carefully reviewed Ms. Fedoruk’s initial Application and subsequent submissions. For the reasons set out above, we conclude that she has not made out a prima facie or arguable case that there has been a contravention of the Act by the Employer or the Association and it is therefore, appropriate to dismiss this Application.