PEHT Case No: 2872-19-PE
Tina Lahtinen, Applicant v Corporation of the City of Thunder Bay, Respondent
BEFORE: M. David Ross, Vice-Chair, and Members Patricia Greenside and Stephen Roth
DECISION OF THE TRIBUNAL: November 2, 2020
This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7 as amended (“the Act”), in which the applicant has asserted that her job, Supervisor, Financial Services, is not valued properly and it is not compared to a proper male comparator contrary to the requirements of the Act.
The respondent, the City of Thunder Bay (“the City”) submitted that the applicant has not pled a breach of the Act and has requested the Tribunal to determine this matter based on the written submissions filed. The City asserts that the applicant’s position was re‑evaluated using a gender-neutral evaluation system pursuant to the Act, but although her position scored higher it did not elevate her to a higher band.
The Tribunal has directed multiple sets of submissions from the parties in response to the City’s request. The applicant filed additional submissions by letters dated March 18, May 27, and July 8, 2020. This matter has been referred to a panel of three, notwithstanding that both parties agreed that it could be determined by a sole presiding officer.
Based on the written materials, the Tribunal can determine this matter pursuant to the written submissions filed pursuant to Rule 68 of the Tribunal’s Rules of Practice:
The Tribunal may conduct all or any other part(s) of the proceeding as a written hearing where it considers it appropriate in the circumstances. In determining appropriateness the Tribunal will consider whether any party asserts a good reason for not holding a written hearing.
The Facts
- The respondent has a deemed approved pay equity plan that was posted in 2009. The City’s pay equity plan was created by using a gender-neutral comparison system (“GNCS”) as required by the Act. Pursuant to section 15(8) of the Act once the pay equity plan is posted and the timelines for challenging the plan has passed, it becomes deemed approved:
(8) If no objection in respect of a pay equity plan is filed with the Commission under subsection (7), the plan shall be deemed to have been approved by the Commission and, on the day provided for in the plan, the employer shall make the first adjustments in compensation required to achieve pay equity.
The applicant’s job class, Financial Process Supervisor, was originally evaluated using the GNCS at 404 points and was placed in band 9. This placement was done in compliance with the deemed equity plan.
The male comparator used in Band 9 is the Coordinator Parks Services job class. It was evaluated at 410 points using the GNCS and was not objected to when the plan was posted.
Following an organizational restructuring, the applicant’s job class received additional duties. The job description was amended, and it was re-evaluated using the GNCS in 2016. The points attributed to the applicant’s job class going from 404 points to 426 points. Although it was rated at a higher score, the 426 valuation did not elevate the job class into band 10.
The applicant did not agree that her job class should remain in band 9. In 2017, the applicant and the City discussed the evaluation results. The City explained how it arrived at its evaluation. The applicant then filed her application with Review Services on October 18, 2017. Review Services found that pay equity had been maintained and that the evaluation of the applicant’s job class was reasonable in its Notice of Decision dated November 22, 2019. Following the Notice of Decision, the applicant exercised her right to request a hearing before the Tribunal.
Summary of the Parties’ Positions
The applicant submits that her job class was unreasonably evaluated, and specifically that an inappropriate male comparator was used. She submits that her job class requires much greater responsibility than the male comparator in band 9. Specifically, the applicant asserts that her job class was not given appropriate scoring under the factor of “Know-How” because the evaluators did not appreciate the skills and responsibility needed for supervising multiple areas and being on call 24 hours per day. The applicant juxtaposes the responsibilities of her job class with the supervisory responsibilities of the Coordinator Parks Services as evidence of the unreasonable evaluation.
The City submits that the deemed approved plan is compliant with the Act, and that the applicant’s job class was evaluated pursuant to a GNCS. The City submits that the applicant is challenging the evaluation of her specific job class as opposed to having identified an issue that violates the Act. The City submitted that the evaluation and placement of individual jobs in a pay equity compliant plan is not one of absolute precision, and these evaluations should not be reviewed in isolation.
The City submitted that it took the applicant’s request seriously, re-evaluated the applicant’s job class which did result in a higher scoring, but the higher evaluation was not enough to have her job class elevated into the next band. Therefore, submitted that on its face, this is not a violation of the Act.
Decision and Analysis
In this case, the Tribunal accepts that the Applicant’s job class received increased responsibilities as a result of a reorganization, and that those responsibilities increased the point value of her position. However, this finding does not mean that the Tribunal agrees with the applicant’s legal conclusion that she ought to have been placed in a higher band as a result of the increased responsibilities or that the male comparator used in band 9 is inappropriate.
The starting point for this analysis is that the City’s pay equity plan is a deemed approved plan. If a plan is not objected to within the timeframes set out in the Act it is deemed approved. These deemed approved 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, 2002 CanLII 49436 (ON PEHT), 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]
This is a case where the applicant has asserted that pay equity has not been maintained following her position receiving additional job responsibilities in 2016. A change in responsibilities is one of the reasons for an employer to review a job class’s rating within the plan. However, a change of one job class’ duties does not open a review of the entire plan. At paragraphs 25 to 27 of Call-A-Service Inc./Harmony Hall Centre for Seniors, 2008 CanLII 88827 (ON PEHT), the Tribunal held:
Maintenance is the means by which an employer ensures that compensation practices are kept up-to-date and remain consistent with pay equity principles. Subsection 7(1) of the Act imposes an obligation on an employer to establish and “maintain” compensation practices that provide for pay equity. Maintenance is an ongoing responsibility. It includes reviewing job classes regularly to capture any changes to job duties and responsibilities, which may require pay equity adjustments. Some examples of changes resulting from ongoing maintenance are: changes to job titles; changes to the duties and responsibilities of a job that may place it in a different job class and salary scale; the creation or elimination of a job class, in particular, a male comparator job class; and changes in the gender dominance.
Changes arising from maintenance do not give rise to a formal review period as required under subsections 15(4) to (8) of the Act.
Most significantly though, such changes do not open a deemed approved plan. (Centennial College (2001 – 02), 12 P.E.R. 102, at para. 20. To paraphrase the ruling of the panel in that case, the importance of a deemed approved plan makes it counter-intuitive to the scheme of the Act to contemplate treating subsequent events, as rendering a deemed approved plan open.
[emphasis added]
The purpose of the Act is to shift employers away from a systemically biased view of how male and female job classes were subjectively valued. The mechanism the Act prescribes to remedy a subjective valuation is to require employers to use a GNCS to evaluate the value of each job class to that employer. This forces employers to compare different job classes that have wide range of duties and responsibilities using as objective of a scoring tool as possible. In essence, it is an exercise in comparing apples to oranges. The GNCS allows “apples and oranges” to be compared by using a numerical value. The numerical value is calculated using the relative scorings in each factor and weighting assigned to those factors. In many cases, two jobs can have the same relative value using a GNCS although their job descriptions look nothing alike on the surface.
Therefore, it has been well-established in the Tribunal’s jurisprudence that it does not typically engage in an analysis of how any individual job class has been evaluated in isolation or against only a very small subset of classifications. In Centennial College, supra, the Tribunal held:
In the Management Board Secretariat (No. 6) decision, the panel set out the kind of review it would undertake in respect a complaint about job comparisons, in the context of a deemed approved plan:
In this case we are concerned with the allegations that the deemed approved plan contravenes sections 5(1) and 6(1). It is our view that neither of these provisions set out a precise standard, but imply a range or an exercise of discretion. Section 5(1) requires that the criterion used to carry out the valuation of work must be a composite of the skill, effort, responsibility normally required to do the work along with the working conditions involved. However, how that composite is arrived at is not precisely set out. The word "composite", unqualified as it is, implies that there are different ways the factors can be combined. Similarly, section 6(1) implies that a range may exist and that an exercise of discretion may occur with the language "where the work performed in the two job classes is of equal or comparable value".
The Applicants have not alleged that the employer failed to consider all of the statutory criteria. Rather, they assert that the employer, through a lack of appreciation of the work they performed, undervalued certain aspects of job content, with the result that their job class was rated too low.
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]
- At paragraph 16 of Brant Community Healthcare, 2017 CanLII 37589 (ON PEHT), the Tribunal held it should not embark on an exercise of “second guessing” once a pay equity plan has been deemed approved:
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]
At 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 threshold that is required to be met before the Tribunal will consider interfering with a deemed approved plan:
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.
In this case, the applicant did an admirable job of setting out why she believes that her job should not be compared to the Coordinator, Parks Services male comparator. However, she has not satisfied the Tribunal that the GNCS used to evaluate both job classes ignored any of the statutory criteria or failed to apply the criteria. Also, the Tribunal finds that the job description used to evaluate the applicant’s job class did not unreasonably exclude important job information or that the revaluated score was unreasonable.
It is clear to the Tribunal that the added job duties were considered and evaluated using a GNCS. That is exemplified by the fact that her position was revaluated and scored higher. In one sense, the applicant is entirely correct in her belief that her position is now valued higher than the male comparator. Prior to the reorganization, her job class scored lower than the male comparator, and after it scored higher. However, this does not mean that her job class is automatically placed in the higher band or that the male comparator is inappropriate. It just means that her job class is scored at 426 points, which remains in band 9 pursuant to the plan.
Lastly, in effect, the applicant has asked the Tribunal to declare that the male comparator used in band 9 is not an appropriate one. The City’s pay equity plan has been deemed approved, and the timeline for objecting to the placement of the Coordinator Parks Services job class in band 9 as the male comparator has been long expired. There is nothing before the Tribunal to indicate that there has been a material change to the job duties of the Coordinator Parks Services that no longer makes it an appropriate male comparator in band 9.
Accordingly, the Tribunal finds that the applicant has not established a violation of the Act following the revaluation of her job class. This application is dismissed.
For the Tribunal,
"M. David Ross" Vice-Chair "Patricia Greenside" Member "Stephen Roth" Member