Michelle MacKay et al. v Brant Community Healthcare System, 2017 CanLII 22872

Ontario Pay Equity Hearings Tribunal

PEHT Case No: 1541-16-PE

Michelle MacKay, Vick Rutherford, Kim McPherson, Kathy Maclver, Laura Gilroy, Gizella House, Kelly Taylor, Cheri-Ann Reed, Patty Buckley, Karin Mawson-Fox, Pat Taylor, Michelle Mackay, Nicole Machaco, Bonnie Raithby, Dana Murphy, Esther Hudson, Christina Schurink, Beth Dopp, and April Minnie, Applicants v Brant Community Healthcare System, and Service Employees International Union Local 1 Canada, Respondents

BEFORE: Roslyn McGilvery, Vice-Chair, and Members Ann Burke and Irene Harris

DECISION OF THE TRIBUNAL: April 3, 2017

1This is an application filed under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (the “Act”) by a Group of Employees (the “Applicants”). The Applicants allege that, in updating the relevant pay equity plan, the manner in which Brant Community Healthcare System (the “Employer”) and the Service Employees International Union Local 1 Canada (the “Union”) evaluated the Unit Clerk job class constituted a violation of section 5 of the Act, which provides:

5. (1) For the purposes of this Act, the criterion to be applied in determining value of work shall be a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed.

2The Applicants maintain that the Union and Employer applied a ten-factor evaluation system under the pay equity plan. However, they maintain that two of the factors came to erroneous conclusions by assigning too low a rating to the Unit Clerk job class. They specifically assert:

20. In evaluating the criteria "Consequences of Action" for the Unit Clerk job class, the respondents justified assigning a level 2 on the basis that the consequence of a Unit Clerk's error was merely a short-term delay or slight increase in cost. Not only does this conception unreasonably undervalue the importance of effective administration, it also fails to acknowledge the consequences which would occur should a Unit Clerk order the incorrect tests for a patient or provide inaccurate information. The consequences of these actions may result in serious harm to, or even the death of a patient. As per the Job Evaluation Manual, where an error made by an employee can cause even moderate damage to the reputation of the hospital, their job class should be considered higher than level 2 in the Consequences of Action category. As the harm to a patient caused by a Unit Clerk's error would cause more than moderate harm to the hospital's reputation, the Unit Clerk job class ought to reasonably have been assigned a higher level on the Consequences of Action criteria.

21. On the "Impact on Others" criteria, the Unit Clerk job class received a level 1.5. According to the Job Evaluation Manual, Impact on Others is a measure of

a. how closely the work of a job class effects the health, safety and well being of others;

b. whether the job class is responsible for adjusting procedures to account for others, and;

c. whether the job class is responsible for taking steps to correct mistakes and errors which may cause harm to others.

The Unit Clerks are responsible for administrative tasks which may seriously affect the lives of patients. The Unit Clerks are also required to provide at least moderate review of their own work and the work of others, so as to prevent harm. As such, according to the metric outlined in the Job Evaluation Manual, they ought to reasonably have received a higher grade in this category.

3The Applicants maintain that if the Unit Clerk job class had been evaluated properly, it would have been found to be comparable to another female classification – the Registration Clerk job class. It notes that the Registration Clerk job class was found to be comparable to the male job classes of Repairman 2 and Painter, and consequently placed in “Band 3” of the pay equity plan, whereas no male comparator was found for the Unit Clerk position and it was evaluated as being in “Band 2” of the pay equity plan.

4Both the Union and Employer have moved to have this application dismissed on a prima facie basis.

5The Tribunal will dismiss an application for failing to make out a prima facie case if, assuming all of the allegations set out in the application are true and provable, the alleged facts nonetheless do not constitute a violation of the Act (See Corporation of the City of Peterborough, 1991 CanLII 4448 (ON PEHT) (March 21, 1991).

6Section 22 is the general complaints section of the Act. Section 22(1) provides:

22. (1) Any employer, employee or group of employees, or the bargaining agent, if any, representing the employee or group of employees, may file a complaint with the Commission complaining that there has been a contravention of this Act, the regulations or an order of the Commission.

7The Tribunal’s approach when considering an application in which unionized employees seek to challenge a pay equity plan that an employer and union have agreed upon on the basis that it violates the Act is set out in Group of Employees v. Ontario Public Service Employees Union and Crown in Right of Ontario (Management Board Secretariat), [1993] O.P.E.D. No. 47 (QL) (October 7, 1993) (“Management Board”). The pertinent paragraphs are paragraphs 29, 30, 31, 34 and 35:

29. These provisions which specifically and exclusively allocate to the bargaining agent the role of preparing pay equity plans and objecting to prepared plans contrast starkly with the rights of employees who are not in a bargaining unit. If the employees are not unionized, then section 15 of the Act applies and indicates that while the employer is allowed to unilaterally develop a pay equity plan, individual employees are given the right to review, comment and formally complain about the plan to the Commission; all rights which are paralleled by the rights afforded to the bargaining agent outlined above. This contrast between individual employees' rights and the rights of unions under the Act gives a further indication of the Legislature's intention to give bargaining agents a central role in the implementation of pay equity.

30. 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 its members. These provisions provide no substantive rights to individual employees. Therefore, in a unionized workplace only the bargaining agent or the employer can complain with respect to sections 12 and 14.

31. The Applicants in this case however also allege that the completed pay equity plan fails to meet the minimum standards of the Act. They referred specifically to sections 4 and 7. As well, in their submissions, through their allegations that the job content of the nurses' job classes ignored and excluded, they effectively allege a contravention of section 5. We have already found that sections 4(2) and 7 are capable of contravention and that individual unionized employees would have standing to complain, but that specific, clear standards are only to be found in other sections of the Act. However, the question whether the deemed approved provisions of the Act insulate from review all aspects of a deemed approved pay equity plan, regardless of whether that plan meets the statutory minimum provisions of the Act, must first be addressed.

34…The Act specifies that where the parties agree and execute a pay equity plan, that plan is deemed approved by the Commission. The first adjustments in compensation called for in the plan follow this agreement and approval. Furthermore, the adjustments to rates of compensation required by the plan are deemed to be incorporated into and form part of the collective agreement concerning the parties. These are two important consequences affecting the compensation of employees in female job classes which flow from the agreement of the parties to pay equity bargaining and the deemed approved provisions of the Act. Section 13(9) which provides that plans approved under Part II are binding on the employer, the employees and their bargaining agent, is a further indication that the Legislature intended pay equity plans to be finalized following agreement between the employer and the bargaining agent.

35. Given these provisions, the Tribunal's approach to allegations about a deemed approved pay equity plan failing to meet the statutory minimum provided by the Act must be a balanced one. On the one hand, the Tribunal finds that a failure to meet the statutory minimum indicated in the Act would be a contravention of the Act and as such would render a deemed approved pay equity plan invalid. The parties are not competent to contract out of the standards of the Act. (Ontario Human Rights Commission et al. v. Borough of Etobicoke (1982), 1982 CanLII 15 (SCC), 132 D.L.R. (3rd) 14 (S.C.C.) at pages 23 and 24.) At the same time, the Tribunal must accord considerable deference to parties who are obligated by the Act to negotiate and implement pay equity. This deference is necessary not only because of the deemed approved provisions of the Act, but also because the standards in the Act are not always easily discernible and some are specifically subject to the negotiation process. More than a belief that their statutory rights have been violated will be required before individual unionized employees can access an inquiry into a negotiated and deemed approved plan. [emphasis added]

8The Tribunal then went on to consider section 5 in particular at paragraph 41:

41. Similarly, section 5 details the criteria to be applied in determining the value of work. The section provides: For the purposes of this Act, the criterion to be applied in determining value of work shall be a composite of the skill, effort and responsibility normally required in the performance of the work and the conditions under which it is normally performed. In meeting their section 7 requirements to establish pay equity, employers and unions must use the statutory criteria to determine the value of the work.

9It stated that when applying the four criteria set out in section 5 of the Act, the Tribunal would consider the following at paragraph 44:

44…If the parties have made a reasonable effort to accurately capture the job content, then the Tribunal will not inquire further. Therefore, if on the face of the Application, it is clear that the system ignored one of the criteria, or failed to apply these criteria, or unreasonably excluded important job information related to any of the four criteria, then the Tribunal should proceed to hear the merits of the Application.

10In Centennial College, 2002 CanLII 49436 (ON PEHT) (January 25, 2002) the Tribunal had this to say at paragraph 26:

26. The comparison of jobs is a task, or rather a series of tasks, that contemplates a range of choices. Moreover, the evaluation of a job class is not carried out in isolation. The Act requires employers to examine all of the jobs in its establishment and measure them relative to one another. A complaint that one job should have been evaluated higher is not meaningful without more. The Applicants have not pleaded any facts that would cause us to conclude that Centennial College’s evaluation of the Applicants’ job class was unreasonable. [emphasis added]

11At the same time, the Tribunal has emphasized that it is not enough to simply say that one female job class ought to be paid more based on its similarity to another female job class (See Ottawa Heart Institute, 2004 CanLII 60148 (ON PEHT) (May 13, 2004) at paragraph 11).

12In order to avoid having an application such as the instant one dismissed on a prima facie basis, an applicant must specifically plead facts establishing that there has been a violation of the Act or an unreasonable evaluation of the relevant job class under section 5.

13In the instant case, the applicants’ reliance upon the higher rating of the Registration Clerk job class on its own would not be sufficient to establish a prima facie case in light of Ottawa Heart Institute, supra. While they also allege that the Unit Clerk position was rated too low in respect of two specific factors, as the Tribunal noted in Centennial College, supra, a complaint that one job class should have been evaluated higher is not meaningful without more.

14In light of the foregoing, the applicants shall have an opportunity to explain why the Tribunal should not dismiss this application on a prima facie basis. They shall have ten business days to deliver and file written submissions to this effect. If they fail to do so, this application may be dismissed on a prima facie basis. The other parties are directed not to respond to any submissions filed by the applicants unless directed to do so by this panel.