PAY EQUITY HEARINGS TRIBUNAL
0020-09-PE Phung Kim Quach, Applicant v. St. Christopher House and Canadian Union of Public Employees, Local 3393, Respondents.
BEFORE: Diane L. Gee, Chair, Catherine Bickley and Margaret Kvetan, Members.
DECISION OF THE TRIBUNAL: May 25, 2009
1This is an application by Phung Kim Quach to the Pay Equity Hearings Tribunal (the “Tribunal”) under section 24(6) of the Pay Equity Act, R.S.O 1990, c. P.7 as amended (the “Act”).
2Ms. Quach filed a complaint with Review Services of the Pay Equity Commission on December 12, 2007. At that time, Ms. Quach had a number of complaints including that pay equity was not being maintained in the workplace and she had been unfairly disciplined as a result of asking questions about pay equity.
3A Review Officer looked into Ms. Quach’s complaint and issued an Order on September 26, 2008. The Review Officer concluded that the discipline imposed on Ms. Quach related to her conflict with her new manager and not to anti-pay equity animus on the part of her employer. The Review Officer further found that there had been a pay equity plan in the workplace but it had been lost. The Review Officer accepted that the union and the employer were in negotiations for a renewal pay equity plan and that Ms. Quach’s concerns regarding the manner in which her job was evaluated and pay equity for her job class would be dealt with at that time. As a result, the Review Officer found this aspect of Ms. Quach’s complaint to be premature.
4Ms. Quach filed an application with the Tribunal on April 15, 2009. In this application Ms. Quach appears to raise the following concerns:
(i) the Review Officer did not deal with all of her concerns;
(ii) relying on section 5 of the Act, Ms. Quach states that her job has been improperly valued;
(iii) relying on section 7 of the Act, Ms. Quach disputes that there ever was a pay equity plan in existence and states that the employer and the Union have failed to show the plan and the comparison method used;
(iv) Ms. Quach relies on sections 14, and 21.3(1) and (3) and states that her job has not been properly valued and improper comparisons have been made.
5The Canadian Union of Public Employees and its Local 3393 (“CUPE” or the “union”) filed a response to the application on or about May 8, 2009. CUPE requests that the application be dismissed on the basis that, even if all of the facts as stated in the application were assumed to be true, there would be no basis on which to grant the application. CUPE further states that it is unable to fully respond to the application as the issues have not been clearly identified and it is unclear what Ms. Quach is requesting in the remedy section of her application. CUPE states that negotiations between the union and the employer for an amended pay equity plan are continuing.
6St. Christopher House (the “employer”) filed a response to the application on May 15, 2009. St. Christopher House asserts that there was a pay equity plan in place that was posted in the early 1990’s but it cannot be located. As a result, the employer and the union are in negotiations to prepare a new pay equity plan. The employer asserts that Minutes of Settlement were entered into with Ms. Quach dated June 12, 2008 as a result of which all of her complaints, including those under the Act, were settled. As part of this settlement, it was agreed that Ms. Quach would remain eligible for any retroactive pay equity adjustments, if the new pay equity plan determined that a pay equity adjustment was owed by the employer to employees, including Ms. Quach. The employer submits that by way of this application, Ms. Quach attempts to revisit her pay equity complaint which is unfounded, does not give rise to a prima facie case and violates the terms of the settlement.
7Having regard to the number of issues that appear to arise out of this application, the Tribunal has determined that, prior to the Tribunal dealing with the union and employer’s requests that this matter be dismissed on the basis that it does not make out a prima facie case, a pre-hearing consultation should be held. Such pre-hearing consultation will be used to:
(i) obtain clarification from Ms. Quach as to what she is complaining about and what she wants by way of a remedy;
(ii) determine whether the remedy sought by Ms. Quach is not already in progress as a result of the ongoing negotiations between the employer and the union to develop a new pay equity plan and the agreement as set out in the Minutes of Settlement that she will receive any pay equity adjustments that are determined to be owing;
(iii) determine whether the matter can be settled as between the parties;
(iv) should no settlement be reached, a list of issues will be prepared including those issues raised by the employer and the union in their submissions and potentially a further issue of whether, as a bargaining unit member, Ms. Quach can advance her complaints;
(v) determine the order in which the issues will be dealt with by the Tribunal; and,
(vi) reach understandings as to the exchange of documents and witness lists.
8This matter is hereby referred to the Registrar to schedule for a pre-hearing consultation.
Dated at Toronto this 25th day of May, 2009.
“Diane L. Gee”______
Diane L. Gee, Chair
“Catherine Bickley”
Catherine Bickley, Member
“Margaret Kvetan”___________
Margaret Kvetan, Member