Corporation of the Municipality of Wawa v. Confidential Employee, Tracyann Marie MacNeill and Karen Anne Wirtz, 2010 CanLII 8687

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, Margaret Kvetan and Pauline R. Seville, Members.

APPEARANCES: Paul Cassan and Chris Wray for the applicant; no one appearing on behalf of the respondents.

DECISION OF THE TRIBUNAL: February 22, 2010

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

2This matter was listed for hearing on February 5, 2010. No one attended the hearing on behalf of the respondents.

3The Municipality had a pay equity plan in 1991. In 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”.

4The Municipality posted a further amended pay equity plan in 2006 (the “2006 Plan”). The only basis upon which the Municipality could post an amended pay equity plan in 2006 was if, pursuant to section 14(2) of the Act, there had been a “change of circumstances” that rendered the 2004 Plan “no longer appropriate”. The 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.

5Further, and in any event, the Review Officer determined that the 2006 Plan did not comply with the Act for the following three reasons:

• Female job classes that under the 2004 Plan were in the 60 - 79 band migrated to the 40 - 59 band.
• The Municipality overvalued the job class of Facilities Maintenance Operator (Part Time) as a 46.7 and used it as the male comparator within band 40 - 59. The Facilities Maintenance Operator (Part Time) position was valued by the Review Officer as 38.9, taking it out of the 40 - 59 band. The proper comparator for the 40 - 59 band was found by the Review Officer to be the Water/Sewer Truck Driver as it was under the 2004 Plan.
• The position of Administrative Secretary I under the 2006 Plan is essentially the same as the job class of Administrative Secretary under the 2004 Plan. As such, there were no grounds for the Municipality to change the comparator from Water/Sewer Truck Driver as in the 2004 Plan to Truck Driver as in the 2006 Plan. Furthermore, the same male comparator (the Water/Sewer Truck Driver) ought to have been used for all positions in the 40 - 59 band.

6At the hearing, the Municipality called two witnesses: Chris Wray, presently the Chief Administrative Officer and Clerk Treasurer of the Municipality, and Cindy Lamon, a member of the Municipality’s 2004 and 2006 Pay Equity Committee (the “Committee”) and presently the Municipality’s Human Resources Associate. Mr. Wray testified as to the staff reorganization that took place in 2004 and 2005 involving the elimination of job classes; changes to the job duties of existing job classes; and the creation of new job classes. Mr. Wray testified that it was as a result of these changes that the Municipality felt there had been changed circumstances that rendered the 2004 Plan no longer appropriate. Ms. Lamon testified with respect to how the Pay Equity Committee evaluated the job class of Facilities Maintenance Operator (Part Time).

7At the conclusion of such evidence, the proceedings adjourned in order for the Tribunal to review the evidence and, if it was able to do so, determine: (1) whether the introduction of the 2006 Plan detrimentally impacted those covered by the pay equity plan as compared to how such individuals would have fared had the Municipality dealt with the changes by way of maintenance (if it did not, the issue as to whether or not section 14(2) of the Act applied would be moot); and (2) whether the Municipality properly valued the job class of Facilities Maintenance Operator (Part Time). It was felt that having the Tribunal address these two issues before proceeding to the remaining issues might reduce the amount of evidence that the Tribunal needed to hear and perhaps permit the hearing to be concluded by way of written submissions.

8Having now had an opportunity to review the 2004 Plan as compared to the 2006 Plan, the Tribunal has determined that it is possible, depending upon the outcome of other remaining issues, that the posting of the 2006 Plan could have a detrimental impact on those covered by the Plan. Such detrimental impact could arise in any one or more of the following three ways:

• If it is determined that the job class of General Accounting Associate listed in the 2006 Plan is the same job class as that of Treasury Clerk under the 2004 Plan, the individuals in the position of General Accounting Associate will have been detrimentally impacted by the posting of the 2006 Plan as, under the 2006 Plan, they have a lower assigned value and a lower-paid male comparator than was the case in the 2004 Plan.
• If it is determined that the job class of Accounts Payable Clerk listed in the 2006 Plan is equivalent to the job class of Treasury Clerk under the 2004 Plan, those in the position of Accounts Payable Clerk will have been detrimentally impacted as they have a lower assigned value and a lower-paid male comparator than was the case in the 2004 Plan.
• If it is determined that the job class of Administrative Secretary I in the 2006 Plan is equivalent to the job class of Administrative Secretary under the 2004 Plan, those in the position of Administrative Secretary I will potentially be detrimentally impacted as they have a different male comparator.

9Thus, whether or not the 2006 Plan has a detrimental impact depends on whether: the job class of General Accounting Associate listed in the 2006 Plan is the same job class as that of Treasury Clerk under the 2004 Plan; the job class of Accounts Payable Clerk listed in the 2006 Plan is equivalent to the job class of Treasury Clerk under the 2004 Plan; and the job class of Administrative Secretary I in the 2006 Plan is equivalent to the job class of Administrative Secretary under the 2004 Plan. Only if all three of these issues are determined in the negative can it be said that the 2006 Plan has no potential detrimental impact. The Tribunal has not yet heard the evidence in connection with these three issues and thus is unable, at this time, to determine whether the posting of the 2006 Plan has potentially detrimental impacts. Accordingly, the Municipality must proceed with the remainder of the hearing on the assumption that the Tribunal will ultimately have to determine whether or not there was a change in circumstances that rendered the 2004 Plan no longer appropriate such that the Municipality was entitled to post the 2006 Plan pursuant to section 14(2) of the Act.

10The Tribunal is also not able, based on the evidence before it, to determine if the Municipality properly valued the job class of Facilities Maintenance Operator (Part Time). While the Tribunal heard from Ms. Lamon as to the basis on which the Municipality valued the position, the Tribunal was not provided with a complete copy of the Gender Neutral Comparison System (“GNCS”) used by the Municipality during the valuation exercise. An incomplete copy of this document was provided to the Tribunal and marked as Exhibit #2. The Tribunal requires the complete copy of the GNCS to determine the number of points the position ought to have been awarded.

11Having regard to the foregoing, the Municipality is hereby directed to provide to the Tribunal three bound and indexed copies of all of the job descriptions that were relied upon by the Municipality in the course of valuing positions under the 2004 Plan and three bound and indexed copies of all of the job descriptions that were relied upon by the Municipality in the course of valuing positions under the 2006 Plan. The Municipality is directed to provide the Tribunal with three complete copies of Exhibit #2. These documents are to be provided to the Tribunal no later than March 15, 2010.

12This matter is hereby referred to the Registrar to consult with the parties and schedule this matter for two consecutive hearing dates to be held in Sault Ste. Marie.

13This panel is seized.