MacKay v. Brant Community Healthcare System, 2017 CanLII 37589

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 Ann Burke and Irene Harris, Members

DECISION OF THE TRIBUNAL: June 12, 2017

1. This 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”).

2. The application alleges 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:

3. (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.

4. By decision dated April 3, 2017, this panel noted that the Employer and the Union requested that the Tribunal dismiss this application for failing to make out a prima facie case. This panel set out some of the leading authorities and principles that apply to the instant case and gave the Applicants an opportunity to respond to the prima facie motion.

5. The Applicants have filed their submissions as directed. However, we note that the Applicants did not take the opportunity to advance arguments respecting the leading authorities. Instead, they sought to provide additional factual assertions, and have added the assertion that the Union and Employer’s conduct constituted a violation of subsections 7(1) and 7(2) of the Act. The issue of seeking to amend the application will be considered in greater detail below.

PRIMA FACIE MOTION

5. The 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). Therefore, for the purposes of this motion, we must assume the facts that the Applicants have pleaded are true and provable.

ASSUMED FACTS

6. The assumed facts are described below:

• The Union and Employer agreed to an updated pay equity plan (the “Plan”) effective October 26, 2015.

• The Plan evaluated job classes based on ten factors.

• Under the Plan, when a female-dominated job class was not comparable to any male-dominated job classes being assessed, the proportional value method of comparison was used, and where a female-dominated job class was comparable to a male-dominated job class, the female job class’s pay rate was compared to that male job class.

• The female dominated Unit Clerk job class was placed at Band 2 where there was no male comparator, whereas the female-dominated Registration Clerk position was placed at Band 3 and was thus found to be comparable to the male dominated Repair 2 and Painter job classes.

7. The application asserts that two of the 10 factors came to erroneous conclusions by assigning too low a rating to the Unit Clerk job class. The Applicants specifically asserted the following at paragraphs 20 and 21 of their application:

8. 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.

9. 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.

8. In their submissions in response to the prima facie motion, the Applicants attempted to shore up their original factual assertions by describing several aspects of the Unit Clerk’s duties and then asserting that these described duties are “at least equal to or exceed the duties of the two comparators.”

9. It is not entirely clear what the Applicants meant when referencing the “two comparators.” We can only assume that they mean the two male comparators for the female-dominated Registration Clerk position – the Repairman 2 and Painter job classes.

APPLICANTS’ POSITION

10. In their application, the Applicants argued 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. They note that the Registration Clerk job class was placed at “Band 3” of the Plan and found to be comparable to the male job classes of Repairman 2 and Painter, whereas no male comparator was found for the Unit Clerk position, which was evaluated as being at “Band 2” of the Plan. In their original application, they asserted that this was a violation of section 5(1) of the Act.

11. In their written submissions, the Applicants have attempted to amend their original position such that they now assert that the actions of the Union and Employer constitute a violation of subsections 7(1) and 7(2) of the Act, which provide:

12. (1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.

(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).

12. It is not necessary for us to determine whether the Applicants are entitled to amend their application at this stage in the proceedings because we find that the application as originally drafted and as purportedly amended must be dismissed on a prima facie basis.

THE LAW

13. At paragraphs 6 through 12 of the April 3, 2017 decision, this panel set out some of the general principles that apply in such cases:

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

15. (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.

16. The 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:

17. 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.

18. 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.

19. 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]

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

37. 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.

38. It 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.

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

11. 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]

12. At 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).

13. In 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.

14. At paragraphs 13 and 14, this panel stated:

15. In 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.

16. In 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.

ANALYSIS

15. The Plan was executed by the Employer and Union, which means that it was deemed approved under the Act. The Applicants’ only means of challenging the Plan is by virtue of section 22, which requires there to be a contravention of a provision of the Act or a regulation. We find that this case implicates section 5 of the Act. The Applicants’ recent attempt to assert that the Union and Employer have violated section 7 does not assist them. The Applicants are not asserting that the Union and Employer have failed to establish or maintain pay equity in the general sense. In other words, they are not asserting that the Union and Employer have entered into a pay equity plan that failed to compare female job classes with male job classes, make the necessary pay equity adjustments or maintain pay equity thereafter. Rather, they take exception with the specific manner in which a particular female job class has been valued under the Act. That implicates the specific provision of section 5 of the Act.

16. The Applicants do not assert that the Union and Employer have failed to evaluate the work of the Unit Clerk job class based on the criteria set out in section 5 of the Act, namely the “skill, effort and responsibility normally required in the performance of the work and conditions under which it is normally performed.” Instead, the sum total of their argument is that the Union and Employer did not come to the conclusion that the Applicants would have arrived at had they been the ones to conduct the analysis. The Applicants’ specific references (in their written submissions) to job duties performed, accompanied by an assertion that the described duties are “at least equal to or exceed the duties of the two comparators” invites the Tribunal to embark upon an exercise of second guessing the findings of the Union and Employer, which is inappropriate (See Ottawa Heart Institute, supra, at paragraphs 12 and 17). The same is true of the assertion that the Applicants disagree with the conclusions respecting two of the 10 valuation factors (as set out in the original application). Given that the Tribunal accepts that there is a range of reasonable evaluations of a job classification, it would be futile for this panel to embark upon such an exercise because the ultimate conclusion that the Applicants are urging us to make – a possible finding that this panel would have evaluated the job class differently – would not lead to a finding that the Union and Employer’s evaluation violates the Act and ought to be disturbed.

17. We note that in their submissions the Applicants have suggested that representatives of the Employer and Union have alluded to making “corrections to their Band” in an upcoming review of the Plan. Assuming without deciding that the Applicants should be permitted to add this new allegation in the first place, we find that it is of no moment. The fact that workplace parties may choose to make changes to pay equity plans is entirely consistent with the Act. It seems to us that the fact that workplace parties will periodically make these types of amendments further justifies giving due deference to the agreements that bargaining agents enter into on the employees’ behalf. It would be an odd result – and counterproductive to the purposes of the Act and labour relations – if making these types of amendments would be viewed as an admission of wrongdoing.

18. For the foregoing reasons, even if the facts alleged by the Applicants are assumed to be true and provable, the application cannot succeed. As such, this application is dismissed on a prima facie basis.

Dated at Toronto, Ontario this 12th day of June, 2017.

"Roslyn McGilvery" Roslyn McGilvery, Vice-Chair

"Ann Burke" Ann Burke, Member

"Irene Harris" Irene Harris, Member