Pay Equity Hearings Tribunal
PEHT Case No: 0215-17-PE
Diana Reynolds, Dawn Khoury, Tara Deguerre, Sylvia Fader, Lynda Gidden, Christine Ferguson, Donald Squires, and Laura Mawhinney, Applicants v Southlake Residential Care Village, Respondent
Before: Patrick Kelly, Alternate Chair, Carol Phillips and Carla Zabek, Members
Decision of the Tribunal: September 7, 2017
1This is an application under the Pay Equity Act, R.S.O. 1990, c. P.7 as amended (“the Act”) brought by Diana Reynolds on behalf of herself and seven other employees (“the applicants”) of the respondent, Southlake Residential Care Village (“the employer” or “Southlake).
2In a decision dated July 24, 2017 (“the initial decision”) that was amended in a subsequent decision on July 25, 2017 (in which the names of the Tribunal members who participated in, but were not named, in the July 24, 2017 decision were added to the panel), the Board invited the applicants to respond to the preliminary objections raised by Southlake. These preliminary objections, set out in summary form in paragraphs 9 through 15 of the initial decision (paragraphs 11 through 17 of the July 25 decision), pertained to certain allegations contained in the application which the employer claims disclose no violation of the Act. Those paragraphs read:
We turn to the submissions contained in Southlake’s response to the application that suggest that several of the applicants’ pleaded facts disclose no violation of the Act.
First, the applicants plead that not all non-union employees were notified of the information meeting conducted by Southlake and its legal counsel on October 2, 2015. As the employer submits, this fact, if proven, would not appear to constitute a violation of the Act. Furthermore, it is not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Second, the applicants plead that “[a] number of staff” was not notified of the posting of the proxy pay equity plan on November 4, 2015. Some unspecified employees were on a leave of absence, while unspecified others would not have known where to look for the posted plan. As the employer submits, these facts, if proven, would not appear to constitute a violation of the Act. Furthermore, it is not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Third, the applicants plead that not all non-union employees approved of the posted plan, and that the concerns of some employees were not addressed by Southlake to their satisfaction. As the employer submits, these facts do not appear to constitute a violation of the Act, particularly as those employees who were not satisfied with Southlake’s response could have, but did not, file objections to the plan with the Commission within the period contemplated by subsection 15(7) of the Act. Thus the posted plan, without amendments, was deemed approved under subsection 15(8). In any event, it is again not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Fourth, the applicants plead that Southlake did not prove that non-union employees benefitted from a pay equity plan or job evaluation dating back to 1994. The employer agrees with this fact, but points out that it does not claim its obligations under the Act were discharged by any pay equity plan that may have been created by Arbor Living Centers. Rather it asserts that the pay equity plan posted in November 2015 discharges its obligation to achieve pay equity for the non-union employees, and the Review Officer agreed with that assertion. Therefore, there appears to be no violation of the Act as claimed by the applicants in paragraph 4 of Part C of the application. Furthermore, we again observe that it is not apparent that there is any meaningful remedy the Tribunal could order even if the conduct complained of constituted a violation of the Act.
Fifth, the applicants plead that the employer did not respond within the requested time frame (i.e. by January 29, 2016) in a letter dated January 11, 2016 from non-union managers requesting that the posted pay equity plan be reviewed and amended. However that may be, the employer did respond on February 7, 2016, and also posted a notice that day that it would not amend the posted plan. As already noted, the non-union employees could have filed, but did not file, any objection in connection with the employer’s refusal to amend the posted plan to the Pay Equity Commission pursuant to subsection 15(7) of the Act. There appears to be no violation of the Act in respect of the employer not having responded to the non-union managers by January 29, 2016, and no remedy that could rectify it even if we were to find a violation.
Sixth, the applicants claim bias on the part of the law firm that assisted Southlake in the pay equity process and the development of the posted plan. The applicants say the bias arises from the fact that the same law firm has represented Southlake in matters that fall outside the scope of the Act, such as collective bargaining and grievance administration. We fail to see how such an assertion, even if true, could constitute a violation of the Act. The Act is not concerned with whether or not lawyers may be pre-disposed to the views of their clients. What matters is whether or not employers, with or without legal advice, take the necessary steps under the Act to redress systemic gender discrimination in compensation for work performed by employees in female job classes. Accordingly, the assertion that Southlake’s legal counsel is biased appears not to advance the applicant’s position, or is not arguably relevant, and in any event there appears to be no remedy the Tribunal could provide to the applicants even if the assertion of bias is true and provable.
3The submissions of the applicants are not truly responsive to the objections of Southlake as summarized above. Instead, the applicants take issue with the facts we set out at paragraphs 4 through 8 of our initial decision. Those paragraphs read:
What appears undisputed is the following. Southlake, a long-term care facility licensed by the Ministry of Health and Long Term Care, is a successor employer to Arbor Living Centers, which became insolvent. Arbor Living Centers was the subject of a Proxy Order issued by a Review Officer, which applied to both union (Canadian Union of Public Employees) and non-union employees. According to the March 27, 2017 Notice of Decision of Review Officer Nabé, Arbour Living Centers developed a deemed approved proxy pay equity plan for union and non-union employees.
It would appear that, following a complaint in March 2013 by the applicants to the Pay Equity Commission concerning the employer’s refusal to provide them copies of salary information, and the Commission’s subsequent request of Southlake to prove that it had achieved and maintained pay equity, the employer was unable to satisfy the Commission. Thus, in June 2013, a Review Officer directed Southlake to develop a proxy pay equity plan for the non-union group of employees, and the employer took a series of actions, including obtaining information from proxy employers, selecting a gender neutral comparison system (the same GNCS used to evaluate the CUPE bargaining unit employees), gathering job information in respect of, and evaluating, the non-union job classes, and identifying three key female job classes – Registered Practical Nurse, Personal Support Worker and Housekeeper.
Following a somewhat complicated review of historical wage data and the development of a wage line, the employer determined that only the non-union female job classes of Hairdresser and Volunteer Coordinator warranted pay equity adjustments. The reason for the Hairdresser adjustment was that a wage gap had emerged in respect of that job class in 2008. The Volunteer Coordinator job class was created in 2010, and a wage gap also emerged at that time, which the employer addressed with the adjustment payout retroactive to 2010.
On November 4, 2015, the employer posted the new proxy pay equity plan (hereinafter referred to as “the posted plan” or “the plan”) in the workplace for the non-union employees. A month earlier, on October 2, 2015, it held a voluntary information session with the non-union employees to explain the process by which the pay equity plan was developed.
On January 11, 2016, a letter of objection to the pay equity plan signed by seven of 13 employees covered by the pay equity plan was delivered to Southlake. On February 7, 2016 Southlake responded to each objector in writing, and, on the same date, posted a notice pursuant to subsection 15(6) of the Act advising that the pay equity plan would not be amended. No employee made an objection with the Pay Equity Commission within 30 days of the February 7, 2016 posting, as contemplated under subsection 15(7) of the Act. Thus, the non-union pay equity plan was deemed approved by the Pay Equity Commission by operation of subsection 15(8) of the Act.
4The applicant disagrees with the suggestion in paragraph 4 of the initial decision that Arbour Living Centers (“Arbour”) developed a deemed approved proxy pay equity plan for non-union employees. It says that several employees of Southlake who were former employees of Arbour claim that they were never aware of any job evaluation exercise, or pay equity adjustments, or any other manifestation of the development or posting of a proxy pay equity plan by Arbour.
5With respect to paragraph 5 of the initial decision, the applicant does not dispute that Southlake, for the purpose of conducting the proxy exercise, chose the three key female job classes identified in that paragraph. However, the applicant says that the selection of those union job classes for purposes of the non-union proxy pay equity plan was a violation of the Act because the union job classes do not have similar duties, roles and responsibilities or similar qualifications, and are not filled by similar recruiting procedures, nor do they share the same compensation schedules, salary grades or salary ranges as the applicants’ job classes.
6This submission by the applicants misconceives the proxy method of comparison under Part III.2 of the Act. As the seeking employer, Southlake was statutorily required to select key female job classes in its establishment for the purpose of making comparisons to key female job classes in the proxy employer’s establishment. Southlake was not bound to select key female job classes (the unionized job classes) on the basis of a roughly equal comparison to the female job classes occupied by the applicants. In choosing its key female job classes, Southlake was statutorily bound to give consideration to those female job classes having the greatest number of employees in the establishment or whose duties are essential to the delivery of Southlake’s service (see subsection 21.11(1)). The applicants have not alleged that the RPN, PSW and Housekeeper job classes chosen by Southlake fail to meet the definition of “key female job class” as set out in subsection 21.11(1).
7Similarly, with respect to paragraph 6 of the initial decision, the applicants complain that Southlake’s consultant chose unionized job classes to compare with the job classes of Hairdresser and Volunteer Coordinator (both non-union, female job classes). In fact, however, Southlake selected the unionized job classes for purposes of comparing with the proxy employer’s key job classes. On the face of it, there was nothing unlawful about having done so.
8The applicants also allege that pay equity for the Hairdresser and Volunteer Coordinator has not been maintained because the incumbents have not received any wage adjustment since the initial retroactive pay equity adjustment. Without more, that allegation cannot succeed. The applicants have not explained why, in their view, the incumbents in the Hairdresser and Volunteer Coordinator are entitled to further pay equity adjustments. The mere fact they have not been granted further increases does not necessarily mean that the employer has failed to maintain pay equity.
9With respect to paragraph 7 of the initial decision, the applicants say that not all the non-union employees attended a voluntary information session on October 2, 2015, which preceded the posting of Southlake’s proxy pay equity plan on November 4, 2015. Some non-union employees were off work and did not attend the information meeting. The applicants say that everyone should have been given the opportunity to attend. Be that as it may, the applicants do not explain how those facts give rise to a violation of the Act.
10The applicants say that they were discouraged from making pay equity inquiries of Southlake’s lawyers because of the cost to Southlake. Again, there is no violation of the Act there. Southlake was under no obligation to provide free legal advice to the applicants at Southlake’s expense.
11Regarding paragraph 8 of the initial decision, the applicants explained why no non-union employee made a timely objection to the Pay Equity Commission pursuant to subsection 15(7) of the Act against Southlake’s posted proxy pay equity plan. In essence, the applicants say that the failure to object was due to miscommunication and inaction by the Pay Equity Commission. This is not an adequate justification, particularly given the fact that, pursuant to subsection 15(4) of the Act, the applicants filed timely comments concerning the posted pay equity plan with Southlake in January 2016, all of which were answered by Southlake’s refusal to amend the posted plan in its notice posted in compliance with subsection 15(5) of the Act on February 7, 2016. In any case, subsection 15(8) of the Act is unequivocal that, if no objection is filed under subsection 15(7), the pay equity plan is deemed approved by the Pay Equity Commission. Accordingly, since no non-union employee made a timely objection (either because they did not know their legal rights or did not have the means to obtain legal advice, or because they did not receive the support they had hoped to receive from the Pay Equity Commission), Southlake’s posted proxy pay equity plan was deemed approved.
12Apart from their submissions concerning paragraphs 4 through 8 of the initial decision, the applicants have not provided a satisfactory answer to the submissions of Southlake as described in paragraphs 9 through 15 of the initial decision. Accordingly, the Tribunal finds that the allegations of the applicants as described in those paragraphs do not disclose a prima facie case of a violation of the Act, and as a result the Tribunal declines to inquire into them.
13The remainder of the allegations may be dealt with in the Pre-Hearing Conference (which may now be scheduled), and, if necessary, at the hearing into this matter.
Dated at Toronto, Ontario this 7th day of September, 2017.
“Patrick Kelly”____________
Patrick Kelly, Alternate Chair
“Carol Phillips”______
Carol Phillips, Member
“Carla Zabek”______
Carla Zabek, Member