Corporation of the Municipality of Wawa v. Confidential Employee, Tracyann Marie MacNeill and Karen Anne Wirtz, 2010 CanLII 63656

Pay Equity Hearings Tribunal

1634-08-PE Corporation of the Municipality of Wawa, Applicant v. Confidential Employee, Tracyann Marie MacNeill and Karen Anne Wirtz, Respondents.

BEFORE: Diane L. Gee, Chair.

APPEARANCES: Paul Cassan, Chris Wray, Cindy Lamon, Doreen Pavlic and Cathy Cyr appeared on behalf of the applicant; no one appeared on behalf of the respondents.

DECISION OF THE TRIBUNAL: November 3, 2010

1This matter is an application to the Pay Equity Hearings Tribunal (the "Tribunal") pursuant to section 24(6) of the Pay Equity Act, R.S.O. 1990, Chapter P.7 (the “Act”). The Corporation of the Municipality of Wawa (the "Municipality"), requests that an Order issued by a Review on June 17, 2008 (the "June Order") be set aside and the Municipality’s 2006 amended pay equity plan be upheld.

2This matter was heard on February 5 and October 4, 2010. No one attended the hearing on behalf of the respondents.

3As indicated in the Tribunal’s February 22, 2010 decision, the Municipality had a pay equity plan in place since 1991 that covered all non-union employees of the Municipality. Pay gaps were identified and closed and retroactive adjustments were paid out in 1991. Pay equity was achieved at that point.

4In 2004, the Municipality posted an amended pay equity plan (the “2004 Plan”). The 2004 Plan was found by the Review Officer to be a “deemed approved plan”.

5The Municipality posted a further amended pay equity plan in 2006 (the “2006 Plan”).

6An employee of the Municipality (the "complainant") filed a complaint with the Pay Equity Commission (the "Commission") after the objection period provided for in the Act. The complainant alleged that the 2006 Plan contravened the Act and that the Municipality had failed to maintain pay equity in that:

• the Municipality changed job titles and job descriptions without justification for the purpose of paying some female employees less by splitting their job classes and assign different values;
• the band widths used in the job-to-job comparison are too wide, resulting in female job classes consistently falling at the top of the band but compared to the lowest male jobs at the bottom of the band;
• female job classes were not compared to male job classes of equal or comparable value. The complainant states that some female job classes were unreasonably divided, renamed and artificially given a lower value, and male comparators were changed resulting in a lowering of their pay rates.

7The Review Officer found there to have been a number of changes in female job classes between the 2004 Plan and the 2006 Plan that were not necessary but had the result of comparing a female job class to a lower paid male job class. The Review Officer found the following positions to be negatively impacted as a result:

• Administrative Secretary II
• Administrative Secretary Infrastructure Services (I/S)
• Accounts Payable Associate
• General Accounting Associate

8The Review Officer found that the Administrative Secretary position in the 2004 Plan was split into Administrative Secretary 1 (pay rate of $23.18), Administrative Secretary II (pay rate of $15.67) and Administrative Secretary Infrastructure Services ("I/S") (pay rate of $15.67) under the 2006 Plan. The Review Officer concluded that the three Administrative Secretary positions should not be evaluated differently and should not be treated as three separate job classes for the purposes of pay equity comparisons. Under the 2004 Plan the Administrative Secretary position was compared to the male job class of Water-Sewer/Truck Driver (pay rate of $23.18). In the 2006 Plan only the Administrative Secretary I position was compared with the male job class of Water-Sewer/Truck Driver. The Administrative Secretary II and Administrative Secretary I/S positions were compared to the male job class of Facilities Maintenance (Part Time) (pay rate of $10.00). All of the positions were in the 40-59 point band.

9The Review Officer further determined that the position of Accounts Clerk in the 2004 Plan had changed to the positions of Revenue Associate and Accounts Payable Associate (pay rate of $20.01) in the 2006 Plan. The Accounts Clerk under the 2004 Plan had a job value of 67.8 and hence was in the 60-79 point band. Under the 2006 Plan the Revenue Associate has a job value of 64, and hence was also in the 60-79 point band, however, the Accounts Payable Associate has a job value of 56. 4 and hence is in the 40‑59 point band. Whereas the Accounts Clerk in the 2004 Plan had been compared to the male job class of Mechanic (pay rate of $25.86), because the Accounts Payable Associate was in a lower point band in the 2006 Plan it was compared to the male job class of Facilities Maintenance (Part Time) (pay rate of $10.00) in the 2006 Plan. The Review Officer did not agree that the Accounts Payable Associate in the 2006 Plan should have a lower job value than the position of Accounts Clerk in the 2004 Plan.

10Finally, the Review Officer determined that the Treasury Clerk position in the 2004 Plan changed to the position of General Accounting Associate in the 2006 Plan. The Treasury Clerk position had a job value of 60 in the 2004 Plan and was compared to the male job class of Mechanic (pay rate of $25.86), however, the position of General Accounting Associate has a job value of 56.6 and, because it is in a lower band, is compared to the male job class of Facilities Maintenance (Part Time) (pay rate of $10.00).

11Having found there to be a negative impact to individuals within female job classes as a result of the 2006 Plan, the Review Officer went on to consider whether there had been a change of circumstances requiring the posting of the 2006 Plan. The Review Officer concluded that the changes in the 2006 Plan were arbitrary, unnecessary and amount to an attempt to circumvent the requirements of the Act.

12The Review Officer further concluded that, even if she were to accept that the Municipality was acting in a bona fide manner, the 2006 Plan violates Part I of the Act in that it fails to maintain pay equity for female job classes by creating a new wage gap. The Review Officer found that the Municipality acted unreasonably in its evaluations and comparisons as required by subsections 5(1), 6(1) and 7(1) of the Act. The Review Officer’s specific areas of concern were as follows:

• Female job classes migrated from the 60-79 band in 2004 to the 40-59 band in 2006. The Review Officer did not have difficulty with the 20 point fixed banding system used as it had also been used in the 2004 Plan.
• The use of the Facilities Maintenance (Part Time) male job class as a comparator for female job classes within the 40-59 point band was considered a problem for two reasons. First, not all female job classes within the 40-59 point band were compared with this male job class. Second, the Review Officer disagreed with the valuation of the Facilities Maintenance (Part Time) job class. The Municipality valued the Facilities Maintenance (Part Time) job class at 46.7 points in both the 2004 Plan and the 2006 Plan. The Review Officer determined that this position ought to have been valued at 38.9 thereby removing it as a comparator within the 40‑59 point band.

13The Review Officer determined that there had not been a “change of circumstances” pursuant to section 14(2) of the Act and that the 2004 Plan continued to apply.

14At the hearing, the Municipality called four witnesses: Chris Wray, presently the Chief Administrative Officer/Clerk-Treasurer of the Municipality; Cindy Lamon, a member of the Municipality’s 2004 and 2006 Pay Equity Committee (the “Committee”) and presently the Municipality’s Human Resources Associate; Doreen Pavlic, previously the Treasury Clerk and presently the Deputy Treasurer; and Cathy Cyr, previously the Administrative Assistant to the Chief Administrative Officer and presently the Deputy Clerk.

15Mr. Wray testified that he commenced working for the Municipality in 1999 as the CAO/Clerk. According to Mr. Wray, he was contacted by the Review Officer and asked to provide copies of Position Descriptions from 2004 and 2006. These documents were provided by Mr. Wray. Thereafter, there was an exchange of emails and telephone calls between Mr. Wray and the Review Officer, however the only discussion that took place concerned the length of time it would take for the Review Officer to complete his investigation. At no time did the Review Officer speak to Mr. Wray or anyone else with the Municipality with the exception of the complainant concerning why the 2006 Plan was posted; the nature of the changes that had taken place; how the job classes were valued; or the differences between the various positions.

16Mr. Wray explained that soon after the 2004 Plan was posted the Treasurer of the Municipality resigned. Notwithstanding tremendous efforts on the part of the Municipality to recruit a new Treasurer, it was not able to do so. The Municipality is statutorily required to have a Treasurer and hence a solution had to be found.

17Ultimately, Mr. Wray proposed that he would assume the role of Treasurer in addition to his existing duties of CAO/Clerk, however, staffing changes would have to be made in order to make it workable. Essentially, Mr. Wray's proposal involved creating the higher level positions of Deputy Treasurer, Deputy Clerk, Human Resources Associate and Revenue Associate into which existing employees, who had demonstrated themselves as being capable of performing higher level tasks, would be promoted. The positions of Deputy Treasurer and Revenue Associate would each assume some of the duties previously performed by the Treasurer in order to alleviate Mr. Wray’s workload. At the same time, lower level positions would be created in order to perform the more routine tasks. One such position was the General Accounting Associate position. Mr. Wray's proposal was accepted in or about September 2004 and was implemented in or about November 2005.

18In 2005 five of the existing job classes that were covered by the 2004 Plan were eliminated: Director/Treasurer; Payroll Clerk; Accounts Clerk; Administrative Assistant; and Treasury Clerk. In addition, ten new job classes were created: Deputy Treasurer; Deputy Clerk; Human Resources Associate; Revenue Associate; Administrative Secretary I; Administrative Secretary II; Administrative Secretary Infrastructure Services; General Accounting Associate; Accounts Payable Associate; and MTO/Pro shop.

19While Mr. Wray took on the position of Treasurer, he did not assume all of the duties performed by the previous Treasurer. Some of the duties were assumed by the newly created position of Deputy Treasurer. The position of Deputy Treasurer was also given responsibility for supervising the positions of Human Resources Associate; Revenue Associate; Accounts Payable Associate; and the General Accounting Associate.

20The duties of the former position of Accounts Clerk were divided up and reassigned to the newly created positions of Accounts Payable Associate and the Revenue Associate. The Accounts Payable Associate, as the name suggests, took on only the accounts payable duties. The revenue portion of the position went to the position of Revenue Associate, who was also assigned a majority of the tasks that had previously been performed by the Treasury Clerk.

21The position of Administrative Assistant to the CAO was eliminated. The individual who had performed this role became the Deputy Clerk. Ninety per cent of the duties of the Administrative Assistant were moved to the position of Deputy Clerk. The other 10% of the former Administrative Assistant duties, which were more of a less complicated nature, were left behind and moved into the Administrative Secretary II position. The Deputy Clerk was given responsibility for supervising the Administrative Secretary II position.

22Mr. Wray provided an explanation as to why, when the 2006 Plan was created, the Administrative Secretary I position was compared to the male job class of Water‑Sewer/Truck Driver whereas the other female dominated positions within the same band were compared to the male job class of Facilities Maintenance (Part Time). Mr. Wray indicated that, in 1991, when the Municipality created its first pay equity plan, an individual by the name of Linda held the position of Secretary/Dicta Typist. In 1991 it was the Municipality’s understanding that, if an individual agreed with the employer as to their proper comparator, such an agreement could simply be reflected in the pay equity plan without going through the exercise of actually valuing the job. In 1991 Linda agreed that her position was properly compared to the male comparator of Airport Attendant.

23When the pay equity plan was amended and reposted in 2004, the Municipality wished to honour its 1991 agreement with Linda. Her position, which was then titled “Administrative Secretary” was compared to the male job class of Water-Sewer/Truck Driver (which was paid the same as the former male comparator job class of Airport Attendant). The Municipality did this even though, in 2004, the position of Facilities Maintenance (Part Time) was then in existence and was the lowest paid male comparator within the band.

24Then, in 2006, when the Municipality further amended the pay equity plan at a time when there were now three administrative secretary positions in existence, all of which were valued more or less the same, the Municipality continued to compare the position held by Linda, now the position of Administrative Secretary I, to the position of Truck Driver, but compared the remaining Administrative Secretary positions to the lowest paid male comparator within the band which was the position of Facilities Maintenance (Part Time).

25Mr. Wray testified that none of the changes that were implemented in 2005 were related in any way to the pay equity plan or desire to reduce pay equity costs.

26Ms. Lamon testified with respect to how the Pay Equity Committee evaluated the job class of Facilities Maintenance Operator (Part Time). In 2004 when the pay equity plan was done there were three individuals on the Committee. One individual was the Mechanic. The other two individuals were Laurie Johnson and Ms. Lamon. In 2006 the Mechanic did not wish to be on the Committee and accordingly Mr. Wray took his place. Ms. Johnston and Ms. Lamon remained on the Committee. In 2006 the Committee valued each of the job classes according to Position Descriptions that had been reviewed and signed off as being accurate by the incumbents of each position.

27Mr. Wray and Ms. Lamon testified as to how the job class of Facilities Maintenance (Part Time) was evaluated. The facility in which this position works came into existence in 1995. Housed within this facility is a public skating rink. The position has not changed at all over the past several years. It is noteworthy that the value assigned to the position of Facilities Maintenance (Part Time) in the 2006 Plan is the identical value assigned to this position in 2004. The Review Officer found that the Facilities Maintenance (Part Time) position had been over-valued when it was assigned 46.7 points. The Review Officer concluded that the position ought to have been valued at 39, thereby moving it down into the next lower band and eliminating it as a potential male job class comparator within the 40-59 band.

28I heard detailed evidence from Mr. Wray and Ms. Lamon concerning the process by which all of the jobs were evaluated. In addition, both Mr. Wray and Ms. Lamon gave detailed evidence concerning how the position of Facilities Maintenance (Part Time) was evaluated. I will address only those sub-factors that the Review Officer found to have been over valued by the Committee.

29The Review Officer concluded because the Facilities Maintenance (Part Time) Position Description did not contain an educational requirement, the position ought to have been assigned a level 1 and not a level 3 for the sub-factor of Pre-Employment Education. The factor of Pre-Employment Education measures the minimum education level required to perform the responsibilities of the position. A value of 1 is to be assigned where less than completed secondary school is required. The value of 3 is to be assigned where the level of education required is completed secondary school. The evidence establishes that, with the sole exception of one position, no position covered by the 2004 or 2006 Plan was given a value of less than 3 in respect of the sub-factor of Pre-Employment Education. This is true with respect to other positions that also did not contain a Pre-Employment Education requirement within the Position Description. In addition, Mr. Wray testified that, given the safety issues involved and the machinery to be operated, the Municipality would never hire anyone into this position without a minimum of a high school education. I find the Committee's evaluation of the sub-factor of Pre-Employment Education to be reasonable.

30The Review Officer further found that the sub-factor of Pre-Employment Experience should have been valued at level 1 instead of level 3. This sub-factor measures the amount of directly related Pre-Employment Experience necessary to perform competently within a reasonable orientation period. Less than six months experience is given a value of 1 whereas six months to one year experience is given a value of 3. The evidence establishes that the position of Facilities Maintenance (Part Time) is required to operate a number of different pieces of machinery including snowblowers, lawnmowers, trucks with plows, and ice cleaning equipment. In addition, this position monitors the ice plant and needs to be aware of safe practices working around ammonia. The Municipality would not hire anyone into this position who did not have a minimum of six months prior experience working around machinery. Accordingly I am satisfied that the sub-factor of Pre-Employment Experience was evaluated appropriately.

31The Review Officer determined that the sub-factor of Interaction With Others ought to have been assigned a level 1 and not a level 3. This factor measures the level of skill required to deal with other people successfully within the context of the work of the Municipality. If the position rarely has contact with others it is to be assigned a value of 1. If the position has limited contacts in number and variety it is to be assigned a value of 3. The evidence establishes that this position would have a fair degree of contact with the users of the facility. The position would routinely interact with hockey coaches and referees, figure skating coaches, attendees at public skating, observers, and volunteers with various associations. Having regard to the evidence heard, I am satisfied that the sub-factor of Interaction With Others was evaluated reasonably.

32Finally, the Review Officer determined that the sub-factor of the Nature of Supervision should have been given a value of 1 instead of 3. This factor measures the degree to which close supervision affects the performance of the work. Where the person is left alone to direct their own work a value of 1 is to be assigned. Where the person is subjected to a regular but relatively unobtrusive external supervision a value of the 3 is to be assigned. The evidence presented indicates that the work performed by the incumbent of this position is dictated to them by their supervisor. This is done by the supervisor leaving a list of duties that the individual must perform during their shift. In addition, many of the duties performed require the individual to complete a log indicating the work that was done as well as the time and date. The supervisor communicates with the individual by way of email, memos, phone calls and by attending at the facility. As a result, I find that the sub-factor of Nature of Supervision was reasonably evaluated.

33Having regard to all of the foregoing, it is my conclusion that the job class of Facilities Maintenance (Part Time) was reasonably evaluated by the Committee as having a total value of 46.7 points. The position of Facilities Maintenance (Part Time) is thus properly within the 40-59 band.

34The Review Officer concluded that the three Administrative Secretary positions were a single job class. The definition of job class as set out in section 1 of the Act provides that a "job class" means those positions in establishments that have, not only similar duties and responsibilities, but also have the same compensation schedule, salary grade or range of salary rates. The position of Administrative Secretary I is paid $23.18 an hour whereas the Administrative Secretary II and Administrative Secretary Infrastructure Services job classes are paid $15.67 an hour. Given that the three positions do not have the same compensation, they are not a single job class.

35The Review Officer further concluded that, because the Municipality had compared the female job class of Administrative Secretary I to the male job class of Truck Driver, the Municipality ought to have also compared the job classes of Administrative Secretary II and Administrative Secretary Infrastructure Services to the Truck Driver job class. There is no statutory requirement that an employer compare all female job classes within a band to the same male job class. The statutory requirement, as set out in section 6(3) of the Act, is that an employer compare each female job class to a male job class with an equal or comparable value and, where there is more than one such male job class, the employer is entitled to select the male job class with the lowest job rate as the comparator. As such, the Municipality did not contravene the Act by selecting a different male comparator job class for the position of Administrative Secretary I than it did for the positions of Administrative Secretary II and Administrative Secretary Infrastructure Services.

36I turn then to the evidence concerning the position of General Accounting Associate which the Review Officer concluded was the same position as the Treasury Clerk position in the 2004 Plan. Doreen Pavlic, who served as the Treasury Clerk until 2005 gave evidence as to the duties performed by the positions of Treasury Clerk and General Accounting Associate. The Treasury Clerk position performed accounting duties related to the maintaining and operating of the taxation and cashier computer systems. The bulk of the duties performed by this position related to taxation. The General Accounting Associate position created in 2006 provides accounting duties related to the maintenance and operation of the cashier systems. The position also issues various licenses, maintains the records as well as provides general accounting duties. The General Accounting Associate position performs virtually no duties relating to taxation. Ms. Pavlic's evidence is consistent with the Position Descriptions from 2004 and 2006 filed with the Tribunal. I find that the position of General Accounting Associate is not the same position as that of Treasury Clerk.

37Finally, I turn to the evidence concerning the position of Accounts Payable Associate. The Review Officer concluded that this position was the same as the position of Accounts Clerk in the 2004 Plan and ought to have been valued the same. The evidence presented establishes that the higher level duties of the Accounts Clerk position were moved up to the Deputy Treasurer position. The more clerical duties associated with the Accounts Clerk position were assigned to the Accounts Payable Associate. The Position Descriptions as well as the oral evidence establish that the position of Accounts Clerk provided account duties related to the maintenance and operation of the accounts payable, accounts receivable, water billing and purchase order systems, whereas, only the duties related to the maintenance and operation of the accounts payable and purchase order systems are performed by the Accounts Payable Associate. The accounts receivable and water billing functions previously performed by the Accounts Clerk were transferred, in 2005, to the newly created position of Revenue Associate, which is also responsible for performing duties related to taxation. I find that the position of Accounts Payable Associate is not the same position as the Accounts Clerk position.

38Finally, concerning the bona fides of the changes, Mr. Wray testified that the Municipality treated the changes that had taken place as a change of circumstances that warranted the posting of an amended pay equity plan due to the scope of changes that had taken place. Mr. Wray indicated that by treating the situation as a change of circumstances, and posting a new plan, employees were given an opportunity to object to the plan whereas had the Municipality treated the situation as maintenance, the plan would not have been opened up and no such challenges could have been made. Further, and in any event, from the Municipality's perspective a restructuring had taken place that rendered the 2004 Plan unworkable. I do not consider the changes that the Municipality made to have been arbitrary, unnecessary or an attempt to circumvent the Act.

39Having regard to my findings above, the issue as to whether or not there was a change of circumstances is moot. Had the Municipality made the changes that it did by way of maintenance, they all would have been appropriate and in keeping with the requirements of the Act.

40For the foregoing reasons, the Municipality’s request that the June 17, 2008 Order be revoked and the Municipality’s 2006 Plan be upheld is hereby granted.