Phung Kim Quach v. The St. Christopher House and Canadian Union of Public Employees, Local 3393, 2012 CanLII 71616

4159-10-PE Phung Kim Quach, Applicant v. The St. Christopher House and Canadian Union of Public Employees, Local 3393, Respondents.

BEFORE: Patrick Kelly, Vice-Chair, Catherine Bickley and Ann Burke, Members.

DECISION OF THE TRIBUNAL: November 15, 2012

1This is an employee application under section 22 of the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) with respect to a Notice of Decision dated March 4, 2011 by Review Officer Alison Limerick (“the Review Officer”). The Review Officer determined that there was no contravention of the Act, and declined to make an order under subsection 24(3) of the Act.

2The hearing in this matter was scheduled to commence on September 17, 2012 and continue on September 18, 2012. At the outset on the first day, the responding party, St. Christopher House (“SCH”) moved that the application ought to be dismissed for failing to disclose a prima facie violation of the Act. Having heard the submissions of counsel for SCH, the Board adjourned the remainder of the hearing on September 17, 2012 in order to provide the self-represented applicant an opportunity to consider her response to the motion, and make her submissions on September 18, 2012, which she did.

3For reasons that follow, the application is dismissed.

4First, some context. SCH and the other responding party, Canadian Union of Public Employees, Local 3393 (“CUPE”) have a long-term collective bargaining relationship. The applicant (or “Ms. Quach”) held the position of Finance Assistant in the bargaining unit since 1991. Her employment with SCH ended on or about June 12, 2008 when, pursuant to a settlement of several of her grievances, she agreed to resign. The settlement prohibited her from pursuing any further legal action against SCH, except her pre-existing pay equity complaint. That matter proceeded as an application before the Tribunal: File No. 0020-09-PE. Among other things, Ms. Quach’s pay equity application alleged that no pay equity plan had been posted in the workplace and that she was entitled to, but did not receive a pay equity adjustment. In its decision dated September 25, 2009, the Tribunal characterized the application in the following terms:

8. It would appear that, in essence, Ms. Quach feels that she has been underpaid in her employment with the employer despite her professional education and training, and she wants by way of remedy to receive retroactive compensation.

5Ultimately the Tribunal determined that Ms. Quach’s request for compensation was premature, as the pay equity plan had not, to that point, been finalized. In a subsequent decision dated October 19, 2009, the Tribunal directed SCH and CUPE to continue negotiating the plan, and directed SCH to post the plan on or before June 30, 2010 and provide a copy to Ms. Quach. SCH and CUPE complied with the Tribunal’s directions.

6Ms. Quach was not satisfied with the treatment of her job class under the pay equity plan, hence the current application before the Tribunal.

7We make the following observations concerning the more salient features of the posted pay equity plan negotiated by SCH and CUPE. It is effective from January 1, 1990. It utilizes the job-to-job method of comparison. SCH and CUPE agreed that no pay equity adjustments were owing to any job class prior to June 1, 2005. In terms of any post-June 1, 2005 adjustments, the Finance Assistant female job class was compared to the male job class of Building Maintenance/Security, the job rate of which was about $6 per hour lower than the Finance Assistant. Accordingly, the Finance Assistant was identified as not being entitled to a pay equity adjustment. Seven other female job classes were identified as requiring pay equity adjustments, which, under the terms of the plan, were to have been paid out on or before October 1, 2010.

8The gender neutral comparison system used by SCH and CUPE to evaluate the bargaining unit positions was a point-factor system which assessed job content against eleven subfactors under the factors of skill, effort, responsibility and working conditions. Based on their point scores, the job classes were placed into grades 1 through 11, with each grade assigned a range or band of points. Grade 1 consisted of all jobs scoring between 0 and 200 points, and every subsequent grade consisted of 50 point bands. The score for Finance Assistant was near the top of the Grade IV band which began at 301 points and reached 350 points. By comparison, the male job class of Building Maintenance/Security was nearer the lowest point in the Grade IV band.

9Under the scoring and banding system utilized by SCH and CUPE, in order for the Finance Assistant to have compared to a higher paying male job class, the Finance Assistant job class would have had to accumulate an additional 153 points and fall within Grade VIII.

10The responding parties did not invite Ms. Quach, who by the time of their pay equity negotiations was a former employee of CHS, to participate in the gathering of any job information for the Finance Assistant job class. However, it would appear that an incumbent in the Finance Assistant job class completed an extensive job questionnaire upon which, wholly or in part, the evaluation of the Finance Assistant was based.

11We turn now to the essential elements of Ms. Quach’s application. To be frank, even taking into account that the applicant was self-represented and not legally trained, the written particulars in Part C of the application are less than coherent. However, this much is clear. Ms. Quach believes that, as a result of educational programs relating to the payroll function which she undertook in 1994 with the encouragement of her then supervisor, and which she says enhanced her skills as Finance Assistant, she is entitled to greater compensation than she received. She seeks from the Tribunal an order for unspecified compensation, as well as an order that the responding parties provide certain job documentation and collective agreement information “to prove the integrity of [the] Pay Equity plan at this organization.”

12Fortunately, Ms. Quach provided some degree of clarification concerning her application when she gave her oral opening statement to the Tribunal on September 17, 2012. Ms. Quach complained that she had not been invited by the responding parties to participate in the pay equity process resulting in the posted pay equity plan. She also expressed a concern about the existence of the male comparator in the Grade IV band. She said, correctly as it turned out, that the Building Maintenance/Security job class to which the Finance Assistant job class was compared, was not listed in the 2005 – 2007 collective agreement between SCH and CUPE, and that she was not aware of such a position while she had been employed at SCH. Finally, Ms. Quach disputed certain findings of the joint evaluation committee (“the committee”) that reviewed the Finance Assistant position. Initially, the applicant indicated that she disagreed with five of the subfactor ratings. However, after comparing her proposed ratings with those of the rating committee, it turned out that there was only a dispute concerning two subfactors. Specifically, Ms. Quach argued that the committee erred in its assessment of the Finance Assistant position by:

• assigning a Level 3 (114 points) under the Skills & Knowledge subfactor, rather than Level 4 (152 points);
• assigning a Level 3 (30 points) under the Responsibility for Confidential Matters subfactor, rather than Level 5 (50 points)

13We turn to the first part of the applicant’s complaint, namely her lack of opportunity to participate in the pay equity process that resulted in the pay equity plan posted on June 30, 2010. By that time, of course, Ms. Quach had been an ex-employee of SCH for several years. SCH gathered information about its male and female job classes using a questionnaire that was completed by its then active employees. The incumbent in the Finance Assistant position completed such a job questionnaire. Ms. Quach was not asked for her input.

14The Act does not say anything expressly about employee input into an employer’s pay equity process. In fact, the Act does not specify how an employer is to make comparisons between female job classes and male job classes. In this case, SCH gathered job information about the job classes by seeking the input of the individuals who occupied the job classes at the time, a very conventional and common approach taken by employers endeavouring to achieve pay equity. That Ms. Quach was not consulted is neither a violation of the Act nor the spirit of the Act.

15With respect to Ms. Quach’s concern about the Band IV male comparator (Building Maintenance/Security), it is not disputed that that job was not listed in the collective agreement that existed at around the time of Ms. Quach’s resignation. According to SCH and the union, it was a position created after the collective agreement was settled. We accept that Ms. Quach was not aware of that position, since it came into existence in the latter stages of her employment. Nevertheless, she has no other evidence, other than her lack of awareness, that the Building Maintenance/Security position was not a bargaining unit male job class.

16Finally, we consider Ms. Quach’s concern with the ratings assigned by the committee to the Finance Assistant job class. Assuming without deciding that Ms. Quach is right about the ratings she contends the Finance Assistant deserves, the overall points would move the position into Band VI. The job rate for the Band VI male comparator to which female job classes in Band VI compare was less than the job rate for the Finance Assistant. Accordingly, the Finance Assistant position would not have been entitled to any pay equity adjustment under the terms of the pay equity plan, even had the committee arrived at the same ratings as Ms. Quach. In any event, a mere disagreement by an individual concerning the valuation of his or her job class by the trade union and the employer is not sufficient to succeed in an application under the Act. As counsel for SCH submitted, without any rejoinder by the applicant, the pay equity plan is a deemed approved pay equity plan, pursuant to subsection 14(5) of the Act. The Tribunal commented on the effect of a deemed approved pay equity plan in the following passage in Ottawa Heart Institute 2004 CanLII 60148 (ON PEHT):

12. The Group of Employees can succeed in their Application only if they can establish that their former employer and former bargaining agent acted unreasonably in evaluating the job of Clerk 3. 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.” However, 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 unions. The Tribunal recognized that in collecting job information, deciding what was significant, and then in evaluating that job content against the prescribed factors of skill, effort, ability and working conditions, a range of outcomes was possible. Consequently, the Tribunal concluded that a union and employer are required only to be reasonable in its collection and evaluation of job content. They do not need to meet an exact standard.

13. Most important for this case, the Tribunal said in Management Board Secretariat, that we will inquire into a complaint from members of a bargaining unit only if they have pleaded material facts in their application that would, if proved, satisfy the Tribunal that the union and the employer acted unreasonably in their evaluation of the job content. In Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73 the Tribunal said that the same standard of reasonableness to be applied in reviewing a complaint about how a trade union and an employer determined the composition of a job class, because, again, a range of choices is possible.

17Ms. Quach alleges that SCH and CUPE did not take into account the payroll certification courses she took at the suggestion of her supervisor. She contends that their failure to give credit to her certification in payroll management constitutes a violation of subsection 5(1) of the Act, specifically subsection 5(1)’s requirement to consider “skill required in the performance of the work”, among other criteria, in determining the value of work. The job descriptions provided by SCH, however, appear to show that SCH required certification in payroll management or an accounting designation for the Finance Assistant position. That is reflected as well in the questionnaire that was completed by the current incumbent in the Finance Assistant position. Ms. Quach makes a bald allegation that the educational requirement was not in fact taken into consideration in the rating of the position. That is really in the nature of a conclusion that is not supported by particular facts. Ms. Quach appears to reason that if the rating committee did not reach the same conclusion that she comes to concerning the correct rating of skill, then by implication the rating arrived at by the rating committee breaches the Act. We do not accept that line of reasoning in the absence of allegations of fact to support it. In any event, as stated earlier, even if the applicant’s ratings are preferred over those of the rating committee, Ms. Quach would not be entitled to a pay equity adjustment.

18In our view, for the reasons stated, this application as pleaded has no reasonable prospect of success on the merits or in terms of any meaningful remedy. The applicant’s case is essentially the same case she advanced in File No. 0020-09-PE: that she has been underpaid in her employment with the employer despite her professional education and training. The applicant’s case is not properly anchored in the Act.

19Accordingly, the Review Officer’s Notice of Decision is confirmed. The application is dismissed.