Ontario worker’s complaint over pay equity, reprisal dismissed

An Ontario worker’s concerns over her salary had more to do with market competitiveness than internal pay equity and she was dismissed due to budget cuts rather than her concerns, the Ontario Pay Equity Tribunal has ruled.

Sinai Health System is a two-hospital healthcare system in Toronto. In 1990, it implemented a pay equity plan that was evaluated and updated periodically as necessary.

The worker joined Sinai in 2000 as the director, medical library. By the end of her first year, the worker was earning a salary of $60,000 per year.

In 2004 and 2005, Sinai underwent a job evaluation process. The worker’s job was placed in the system’s Band 6, which carried a maximum annual salary of $96,000 and included about two dozen male job classes.

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Lower salary than peers

In 2008, the worker learned that several of her peers in other medical libraries earned a higher salary than she did. She requested that the compensation in her job class be reassessed. Sinai reviewed her job description and confirmed that it was in the appropriate salary band.

The worker again requested that her salary be reviewed in 2012. She referred to medical library directors at other hospitals and wanted to know if there was a way for her to pursue compensation similar to those positions. Sinai ultimately responded that pay equity was an internal comparison, not an external one.

In 2015, Sinai became a two-hospital system through a merger and the medical library at the second hospital came under the worker’s oversight. The following year, the maximum salary for Band 6 increased to $105,000.

Around the same time, the worker requested a list of her male comparators and asked again why salaries in her department were lower than at other hospitals. Sinai eventually provided a list of three comparator positions in 2019, explaining that the delay was due to the request “falling through the cracks.”

Also in 2019, the worker raised more concerns about salary levels after one of her staff left to work at another hospital. She filed an application for review services, alleging that her job wasn’t evaluated properly. She referred to a male employee in the pharmacy department who she felt was a proper comparator and had received a salary increase over the band maximum. As it turned out, his job class was reclassified to Band 7.

A recent decision by the interim pay equity commissioner was critical for employers looking to establish a multi-plan approach, say lawyers.

Budget cuts

A short time later, Sinai had a budgetary shortfall and asked department heads to reduce their budgets by at least two per cent. Sinai offered voluntary exit packages for staff and then terminated 20 employees when not enough employees accepted the exit packages.

The worker was one of those terminated, as Sinai felt that some of the worker’s supervisory duties could be reallocated to a lower-paid position.

Sinai implemented a new job evaluation process in 2019 and the medical library director position was reassessed. There was no increase to the band for that job class.

The worker filed an application under the Ontario Pay Equity Act, alleging that Sinai failed to maintain pay equity, didn’t provide her with a list of comparators in a timely manner, didn’t address her pay equity concerns, and terminated her employment for raising her concerns.

The tribunal first addressed the worker’s allegation that her termination was a reprisal. It found that the evidence sufficiently showed that Sinai was under budgetary restraints and had to cut costs. The worker was only dismissed after the hospital provided voluntary exit packages and, when not enough employees accepted them, it terminated 20 employees. It made sense for the worker to be one of the terminations when Sinai could reallocate some of her duties, said the tribunal, adding that the worker’s supervisor did not make the termination decision.

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Too long to provide comparator list

As for the time it took for Sinai to provide the worker with a list of comparators, the tribunal noted that the act did not set a time limit on an employer providing such information after a request is made. However, this didn’t mean that an employer could delay indefinitely and it must respond within a reasonable period of time to comply with the intent of the act, said the tribunal, adding that more than three years was not a reasonable period of time and “falling through the cracks” was not a satisfactory excuse.

The tribunal also found that Sinai addressed the worker’s pay equity concerns each time she raised them, and the issue the worker had was that she didn’t agree with the responses. In addition, the worker seemed particularly concerned with a male employee in the pharmacy department and his job class. The evidence indicated that his job class received additional responsibilities because of the elimination of a higher-level position in his department and was reclassified. There were another 20 male job classes within Band 6 that were reasonable comparators, said the tribunal.

The tribunal noted that the act states that pay equity is achieved when the lowest job rate of a female job class is the same as the male class, not the highest rate, if the work is of equal or comparable value.

“The fact that the [worker’s] job class has been evaluated using a gender-neutral comparison system and placed in a band with approximately two dozen other male job classes means that the [worker’s] reliance on the specific circumstances of one male job class is immaterial to the issue of whether [Sinai] has maintained pay equity,” said the tribunal.

New pay equity rules for federally regulated businesses took effect in late 2021.

Pay equity is internal

The tribunal found that the worker was essentially comparing the wage rates of similar job classes at other employers in the same sector. This may have been a misunderstanding on her part, but the reality was that pay equity involves comparable compensation for job classes within an organization, said the tribunal.

Pay differences with other employers in a market could lead to loss of employees, as what happened in the worker’s department, but her concern was not so much with pay equity as it was about market competitiveness, said the tribunal in dismissing the worker’s application – with the exception of her complaint that the list of her comparators wasn’t provided within a reasonable amount of time. The tribunal’s only remedy for the delay was making a declaration that it was unreasonable. See Sandra Kendall v. Sinai Health System, 2023 CanLII 17263.