The Corporation of the Village of Plantagenet v. Monique Bastien, 1997 CanLII 12218

PAY EQUITY HEARINGS TRIBUNAL

0541-95 The Corporation of the Village of Plantagenet, Applicant v. Monique Bastien, Respondent

Before: Phyllis Gordon, Chair, and Members Margaret Kvetan and Bruce Budd

Appearances: Michael Houle for the Corporation of the Township of Alfred and Plantagenet and Niculae Amarica for the Respondent

Cite as: Plantagenet (No. 2) (28 August, 1997) 0541-95 (P.E.H.T.)

DECISION OF THE TRIBUNAL

1At the request of Counsel to Monique Bastien, M^e Amarica, and pursuant to paragraph 114 of our decision dated May 15, 1997, we resumed the hearing on August 18, 1997. In our decision we held that the entity responsible for carrying out our order was the Corporation of the Township of Alfred and Plantagenet (the “Township”), which now includes the former entity of the Corporation of the Village of Plantagenet. The former Village of Plantagenet was not represented at the resumption of the hearing. M^e Houle, appearing for the Township, outlined the three immediate issues that he and M^eAmarica agreed were unresolved and he made submissions on each. It was not necessary to hear from M^e Amarica. This decision sets out the oral ruling we made at the hearing.

2The three questions were as follows:-

(i) To which of the positions - Clerk-Treasurer, Deputy-Clerk and Deputy-Treasurer - should Monique Bastien be reinstated?

(ii) Is it necessary for Monique Bastien, prior to her reinstatement, to submit to a similar competition process as took place when the present incumbents of Clerk-Treasurer, Deputy-Clerk and Deputy-Treasurer were hired?

(iii) At what salary should Monique Bastien’s retroactive wages for 1997 be calculated?

3We were concerned that in answering the first question, we would be performing the management function of the Township. However, Counsel for the Township characterized his approach to our hearing as a “business approach” and indicated that it was his client’s preference that the Tribunal make this decision. This makes sense to us and we likewise adopt a pragmatic solution. Each counsel explicitly consented to our making this determination and undertook to provide letters setting this out. On this basis, and because we appreciate the utility of relieving the interim Council of the Township from making this decision, we order that Monique Bastien be reinstated to the Deputy-Clerk position.

4Our rationale for this determination is based on the evidence we heard during the previous hearing days. Each of the witnesses from the Village of Plantagenet commented very favourably on Monique Bastien’s performance as clerk. Such testimony was frequent and was often unsolicited. We also learned from the same witnesses, that Mme Campbell (who had been the Clerk-Treasurer of the Village of Plantagenet prior to Monique Bastien, and who is presently the Deputy-Treasurer of the Township) had excelled at the accounting function. We know that the Council members testified that Monique Bastien had not performed as well as Mme Campbell in the accounting function. Therefore, as between the Deputy positions, Monique Bastien should be reinstated to the Deputy-Clerk position. It is not necessary for us to consider Monique Bastien for the senior position of Clerk-Treasurer, as she has indicated her willingness to accept the Deputy-Clerk position.

5Our answer to the second question is that it is not necessary for Monique Bastien to undergo a competition process prior to her reinstatement. There was an opportunity for the Township to have included her in the competition for these positions as our decision was released shortly before the competition occurred. Although difficult, this would have been feasible. It was not done. M^e Houle outlined the process: the Township retained the services of a human resources consultant, Mr. James Reid, who conducted the interviews and assessed the candidates. His report was presented to the interim Council and was adopted. Mr. Reid did not attend the hearing in August 18, 1997, and thus we do not know how he would approach the competition process to accommodate this order.

6It appears to us that there are two likely processes which Mr. Reid could conduct at this time. The first would be to repeat the competition, including the comparison of all the candidates. In order to be fair, this would necessitate starting over for each of the three positions. This is not a pragmatic solution to the problem as it would increase uncertainty among the staff, and cause delay to the running of the Corporation’s affairs. The alternate approach would be for Mr. Reid to determine whether Monique Bastien meets the minimum qualifications for the Deputy-Clerk position, and if she does, she would be automatically reinstated. We find this is unnecessary because it has been established that she was a competent and effective municipal clerk and had been for several years. She more than meets the minimum qualifications established by the Township and has obtained the AMCTO Certification which is set out as a necessary qualification.

7We direct that Monique Bastien is to commence her duties as Deputy-Clerk at the Township on November 3, 1997. There is to be a six (6) month probation period, as this was a condition of employment for hiring of the other candidates.

8With respect to the third question we have determined that the appropriate salary for the calculation of retroactivity owing to Monique Bastien for 1997 is $38,000.00, the salary designated for the Deputy-Clerk position.

9For the record, we note that both Counsel have advised that the other monetary orders of our decision do not give rise to any problems. Should Monique Bastien elect damages in lieu of reinstatement, she is to receive 9 months’ salary, inclusive of statutory severance and notice, at the rate of $38,000.00 per annum.