Bonnie E. MacLeod, Irene Hutton, and Linda Gemmell v. Brockville General Hospital, and CUPE 5666, 2019 CanLII 113536

Pay Equity Hearings Tribunal

PEHT File No.: 1763-17-PE

Bonnie E. MacLeod, Irene Hutton, and Linda Gemmell, Applicants v Brockville General Hospital, and CUPE 5666, Respondents

BEFORE: M. David Ross, Chair, Irene Harris and Ann Burke, Members

DECISION OF THE TRIBUNAL: November 20, 2019

1This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended ("the Act"). The application filing date is October 18, 2017.

2The applicants, Bonnie MacLeod, Irene Hutton, and Linda Gemmell, assert that the Brockville General Hospital ("BGH"), and their bargaining agent, the Canadian Union of Public Employees, Local 5666 ("CUPE") did not act reasonably in evaluating their classification, the Emergency Unit Clerk ("ER Clerk") during the pay equity maintenance process that was directed by the Pay Equity Commission and completed in 2016.

3BGH took the position that the applicants have not made out a prima facie violation of the Act. CUPE did not file a response, nor did it participate in the underlying application to review services that gave rise to this application.

4The hearing in this matter took place on November 4, 2019.

Background

5BGH is a hospital that achieved pay equity by January 1, 1998.

6On or around October 1, 2006, BGH merged with St. Vincent de Paul Hospital. BGH and CUPE negotiated wage harmonization for the bargaining unit employees of the two hospitals on or around April 11, 2008.

7A pay equity complaint was filed by a different complainant in 2012. When that matter was resolved, the Pay Equity Commission initiated a "monitoring file" to ensure that pay equity was maintained for female job classes in compliance with Part I of the Act. On June 3, 2014, the Pay Equity Commission ordered BGH to: identify job classes within the bargaining unit, evaluate all female job classes and sufficient male job classes to establish a pay equity comparison for all female job classes, provide job evaluation ratings by factor and subfactor, provide the relevant job evaluation system, collective agreement, and job rate comparisons between female job classes and their male comparators from 2006.

8The BGH-CUPE pay equity job evaluation plan evaluates 11 subfactors. On the face of the job evaluation plan, the 11 subfactors consider the four statutory factors of skill, effort, responsibility and working conditions as required by section 5(1) of the Act. Section 5(1) of the Act states:

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.

9The ER Clerk classification was evaluated at 315 points which was the highest scoring classification in Band 4, and the highest "Clerk" classification within BGH. The ER Clerk classification is paid a higher hourly rate than the male comparator in band 4, and therefore, no pay equity adjustment was provided to the ER Clerk classification.

10On September 1, 2016, the Review Officer issued a Notice of Decision that concluded that BGH's compensation practices provide for pay equity as required by the Act.

11On August 29, 2016, one of the applicants filed an application to the Pay Equity Commission Review Services ("Review Services") claiming that pay equity had not been maintained for the ER Clerk job class. Specifically, the applicant alleged that 2 of the 11 the subfactors, Physical Activity and Dexterity, were scored unreasonably low, and had those factors been scored reasonably, that may have resulted in the ER Clerk job class being advanced to the next band and they may have received a different job-to-job comparison.

12On September 8, 2017, the Review Officer found that the applicant has failed to set out a contravention of Part I of the Act. The applicants disagree with the Review Officer's conclusions in the Notice of Decision and filed this application.

Summary of the Applicants' Evidence

13The applicants submitted that BGH and CUPE did not consider the additional responsibilities of the ER Clerk when those employees in that job class became responsible for switchboard duties and overnight patient admissions for both hospital sites.

14The applicants testified that as a result of these additional overnight duties the workload of ER Clerks was double that of the other classifications, and that they believed that the scores of 3 for Physical Activities and 2 for Dexterity were unreasonably low. The Chair took the applicants to the 2012 and 2016 ER Clerk job descriptions, and the job evaluation tool and evaluations, and had the applicants explain what elements of those documents did not capture the duties of their position, and, accordingly, how they believed that their job class was unreasonably evaluated.

15With respect to the Physical Activity subfactor, the applicants said that they walked a lot, 5 to 10 kilometers on each shift, and occasionally they had to lift over 10 kilograms, such as if they had to help lift a patient that had fallen to the floor.

16With respect to the Dexterity Factor, the applicants said that they were regularly multi-tasking and regularly interrupted in their job duties. They also explained that their added duties raised safety concerns and had affected their stress level and mental health.

17The applicants were clear that they felt that the volume of their added job duties was not reflected in the 2012 and 2016 ER Clerk job descriptions but acknowledged that those job descriptions generally described the physical tasks associated with those added duties. For example, the 2016 ER Clerk job description was amended to include "coordinating telephone communications for the hospital in the absence of the switchboard".

18At the conclusion of the applicants' evidence, BGH resumed its request that the Tribunal dismiss this application for failing to establish a prima facie case of a violation of Part I of the Act based on the written materials and the applicants' evidence.

Summary of the Submissions of the Parties

19The Tribunal has reviewed and considered all of the parties' submissions, the applicants' evidence, and the documents that the applicants agreed were properly entered as exhibits. The following is a summary of the parties' arguments.

20BGH highlighted that the challenged pay equity plan is a deemed approved plan, and one that was amended in 2016 as a result of a Pay Equity Commission directed maintenance review process. BGH requested that the Tribunal dismiss this application based on the written submissions and the evidence heard. For only the purposes of this argument, BGH accepted the applicants' evidence and submissions as true.

21BGH submitted that the Tribunal's case law is clear that a disagreement with how a job class is scored within a pay equity job evaluation plan is not, in and of itself, a prima facie violation of the Act. BGH submitted that the applicants' evidence was also clear that they felt overworked and did not believe that the evaluation of the ER classification captured their workload. BGH submitted that concerns about workload are issues more appropriately raised in other forums such as the grievance procedure (which the Tribunal has come to understand that workload grievances have been filed with respect to the ER Clerk classification), but the job classes have to be evaluated based on the "conditions the work is normally performed" as set out in section 5 of the Act. BGH highlighted that the only duties complained about are overnight duties, rather than duties and tasks that are applicable to each ER Clerk shift.

22BGH submitted that applicants did not establish through their evidence that the job descriptions from 2012 and 2016 did not accurately describe the job duties of the ER Clerk classification, and specifically that the job descriptions did not accurately capture the job tasks related to the Physical Activity and Dexterity subfactors. Therefore, BGH submitted that the applicants did not establish a prima facie case that the job duties or requirements were not reasonably considered by BGH, CUPE, and the Review Officer, when the pay equity plan was amended in 2016. BGH highlighted that on the face of the job descriptions and the pay equity job evaluation plan, it shows that the added overnight responsibilities were considered and evaluated, and this is not a case where there is any evidence that job duties or tasks were not considered at all or unreasonably evaluated.

23BGH submitted that where a pay equity plan has been agreed to by an employer and a trade union, that the Tribunal will not second guess the job evaluations of specific classifications in isolation of the rest of the plan. This is because job evaluation is not an exact exercise and a range of reasonable outcomes are possible.

24BGH also submitted that there is no statutory requirement to include individual incumbents of a classification in a job evaluation process.

25BGH relied on the following cases in support of its arguments: The Corporation of the City of Peterborough, 1991 CanLII 4448 (ON PEHT); Ottawa Heart Institute, 2004 CanLII 60148 (ON PEHT); Centennial College, 2002 CanLII 49436 (ON PEHT); St. Christopher House, 2012 CanLII 71616 (ON PEHT); and Brant Community Healthcare System, 2017 CanLII 37589 (ON PEHT).

26The applicants argued that every case must be decided on its own facts, and they submitted that they have made out a prima facie case that BGH and CUPE did not reasonably consider the additional duties and responsibilities the ER Clerk was assigned when that job class was assigned overnight admissions and switchboard responsibilities.

27The applicants submitted that they felt that if they were consulted, that BGH, CUPE and the Pay Equity Commission would have had a better understanding of what those added duties entailed, and as a result the ER Clerk job class would have been scored higher.

28The applicants also took issue with being compared to a male comparator classification that had no incumbent, and that was paid a wage consummate with a Band 2 classification (although it was scored in the Band 4 range).

29The applicants requested the Tribunal not to dismiss this application for failing to establish a prima facie case.

The Jurisdiction of the Tribunal in this Application

30It is well-established that the Tribunal only has jurisdiction to consider issues that were raised in the application to review services that gave rise to this application. While hearings before the Tribunal are de novo (which means "a new trial" or "from the beginning"), the Tribunal does not assume jurisdiction over issues that the Pay Equity Commission Review Services did not have the opportunity to consider. Paragraph 12 of Villa Colombo Homes for the Aged Inc., 1997 CanLII 12230 (ON PEHT) states:

12. In either of the above circumstances, the Act envisages and confers on the Tribunal the jurisdiction to adjudicate the matter only after a Review Officer has investigated and attempted to settle it. In previous decisions the Tribunal has stated repeatedly that it will not allow parties to make an "end run" around the Review Services process by bringing directly to the Tribunal for adjudication an issue that was not raised at Review Services (see Scarborough (No.1) (1994) 5 P.E.R. 45, at para. 17). Similarly, the Tribunal has said that it will not allow parties to "short circuit" the Review Services process by bringing a matter to the Tribunal for adjudication before the Review Services process has been exhausted (See Thunder Bay Family and Children's Services (1990), 2 P.E.R. 27, at para. 10 and 14, and Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50, at para. 9). Whether the Review Services process has been exhausted is a determination the Tribunal makes having regard to: whether an order has been issued; the length of time the matter was at Review Services; the number of meetings that have occurred with respect to it; and what the Review Officer may have indicated about his or her intention to make an order or referral (See Haldimand Norfolk (No.1) (1989), 1 P.E.R. 1, at para. 37; St. Michael's Hospital (No.2) (1991), 2 P.E.R. 187, at para. 22 ff.; and St. Joseph's Villa (1993), 4 P.E.R. 33, at para. 2).

[emphasis added]

31In this case, it is clear from the Notice of Decision that the applicants' position before Review Services was that they believed that the factors of Physical Activity and Dexterity were scored unreasonably low, and that the added overnight admissions and switchboard duties were not considered when the ER Clerk classification was evaluated. It is on that basis that the Review Officer considered the applicants' complaint and made its decision.

Analysis and Decision

32At the outset of the Tribunal's analysis, this panel wishes to make it clear that it has no doubt that these ER Clerks feel that they have been overworked and underappreciated in their position, especially since the overnight admission and switchboard duties were assigned to the ER Clerk classification in 2012 and 2016 respectively. It is also clear that the applicants feel let down by their union, which did not participate in this proceeding. However, the question for this panel is whether those concerns are something that this Tribunal has the jurisdiction to consider?

33The starting point for this analysis is that the BGH-CUPE pay equity plan was amended as per the direction and oversight of the Pay Equity Commission Review Services ("Review Services"). These deemed approved pay equity plans are given deference from the Tribunal because the job evaluation process is not an exact science, and a range of reasonable outcomes is possible. At paragraph 21 of Centennial College, supra, the Tribunal held that parties to a plan are held to a reasonableness standard with respect to how they evaluated the different job classes:

As set out above, the Tribunal has consistently refused to inquire into complaints about a deemed approved plan that have not made out a prima facie case of a contravention of Part I of the Act. The case law is succinctly summarized in Management Board Secretariat (No. 6), (1998-99), 9 P.E.R. 48 at paragraph 9:

The standard of review to be used when there is an allegation that a deemed approved plan contravenes the Act has now been established by Tribunal jurisprudence. Correctness is the appropriate standard when reviewing whether a plan contravenes a precise provision of the Act, and reasonableness is the appropriate standard when deciding whether a plan contravenes a provision that is not capable of exact application, but implies a range or an exercise of discretion. Parry Sound District General Hospital (No. 2) (1996), 7 P.E.R. 73; Ottawa Board of Education (No. 2) (1996), 7 P.E.R. 9; Parry Sound District General Hospital (No. 1) (1995), 6 P.E.R. 124.

[emphasis added]

34At paragraph 26 of Centennial College, supra, the Tribunal held that a complaint that one job class should have been evaluated higher is not meaningful without an examination of all of the job classes relative to one another:

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]

35Similarly, at paragraphs 12 and 13 of Ottawa Heart Institute, supra, the Tribunal held that due to the choices available to employers and unions, they are only required to be reasonable in evaluating job content and do not need to meet an exact standard:

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.

[emphasis added]

36At paragraph 16 of Brant Community Healthcare, supra, the Tribunal held it should not embark on an exercise of "second guessing" the findings of employers and unions when they agree to a pay equity plan:

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.

[emphasis added]

37At paragraph 44 of 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), the Tribunal described the types of circumstances that are required before the Tribunal will consider interfering with a deemed approved plan:

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.

38Therefore, in this case, in order to have established a prima facie case of a violation of the Act, the applicants must have set out facts that, if accepted as true, could lead the Tribunal to the conclusion that the job evaluation system either: ignored or failed to apply one of the statutory criteria or unreasonably excluded important job information related to any of the four statutory criteria.

39The applicants were provided with the full opportunity during the hearing to explain and present evidence before the Tribunal about how the 2012 and 2016 ER Clerk job descriptions unreasonably excluded job tasks and job duties from the evaluation, and how BGH, CUPE and the unreasonably considered, or did not consider, the subfactors of Physical Activity and Dexterity. Again, it bears to mention that this maintenance review process was reviewed by Review Services.

40While it is clear from the applicants' submissions and evidence that they disagree with how their job class was evaluated, their evidence regarding the added overnight tasks are captured on the face of the 2012 and 2016 ER Clerk job descriptions. Furthermore, the applicant's testimony and submissions about why they believe that the factors of Physical Activity and Dexterity were scored unreasonably low focused primarily on mental and safety aspects of the added overnight duties (which are considered under different subfactors than Physical Activity and Dexterity), rather than the physical nature of the added tasks, which is what those subfactors evaluate.

41Accordingly, the Tribunal finds that the applicants have not established, accepting their evidence and submissions as true, that the BGH-CUPE job evaluation plan has unreasonably excluded important job information related to the four statutory criteria.

42Furthermore, the fact that the applicants were not consulted during the maintenance review process is also not a prima facie violation of the Act. This is especially true in cases where the employees are represented by a union. On this point, the Tribunal adopts the reasoning at paragraph 14 of St. Christopher House, 2012 CanLII 71616:

The 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.

[emphasis added]

43Lastly, the applicants' complaint that the ER Clerk job class was improperly compared to the OR Porter job class was not before Review Services. Therefore, the Tribunal does not assume jurisdiction over that element of their submission. However, this panel does want to note that nothing on the face of the comparators identified in the BGH-CUPE pay equity plan appears to be inconsistent with the Act.

44Accordingly, the applicants have not established a prima facie case of a violation of Part I the Act. This application is dismissed.