FPSLREB Decisions

I. Individual grievances referred to adjudication

1 On February 26, 2007, Guy Veillette (“the grievor”) filed three grievances against the Canada Revenue Agency (CRA or “the employer”), alleging that it had discriminated against him, violating article 43 of the collective agreement. Mr. Veillette occupies a position classified at the AU-03 group and level. The applicable collective agreement, between the Professional Institute of the Public Service of Canada and the CRA for the AFS group, expired December 21, 2007 (“the collective agreement”).

2 In the first grievance (PSLRB File No. 566-34-2769), Mr. Veillette contested the employer’s decision not to offer him acting appointments to a team leader position at the MG-05 group and level. In Mr. Veillette’s opinion, he was discriminated against because of his union involvement, in violation of clause 43.01 of the collective agreement. He requested to be appointed on an acting basis to a position classified at the MG-05 group and level and to be remunerated the equivalent of the wages lost since 2004.

3 In the second grievance (PSLRB File No. 566-34-2770), Mr. Veillette contested the employer’s decision to exclude him from a competition for an MG-05 position that it conducted in 2006. In Mr. Veillette’s opinion, he was discriminated against because of his union involvement, in violation of clause 43.01 of the collective agreement. According to the change made to the grievance at the final level of the internal grievance process, he requested that the employer immediately evaluate his application for a position at the MG-05 group and level and that, if required, he be retroactively appointed to such a position as of the date on which he should have been appointed.

4 In the third grievance (PSLRB File No. 566-34-2771), Mr. Veillette contested the employer’s decision to exclude him from a competition for an MG-05 position that it conducted in 2006. In Mr. Veillette’s opinion, he was discriminated against because of his family status, in violation of clause 43.01 of the collective agreement. According to the change made to the grievance at the final level of the internal grievance process, he requested the same corrective action as in the second grievance along with acceptable financial compensation for moral damages and special compensation.

5 On January 6, 2009, the employer dismissed the three grievances at the final level of the internal grievance process. In its response, the employer argued that Mr. Veillette had access to the existing CRA staffing process recourse and that, therefore, he could not file these grievances. The employer based its response on subsection 208(2) of the Public Service Labour Relations Act (“the Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22.

6 Clause 43.01 of the collective agreement reads as follows:

There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, marital status, mental or physical disability, conviction for which a pardon has been granted or membership or activity in the Institute.

II. Summary of the evidence

7 The parties adduced 37 documents in evidence. Mr. Veillette adduced 28 and the employer, 9. In addition to Mr. Veillette, Guylaine Gaudreault, Jacques Morneau and Michel Gionet testified. When the events giving rise to the grievances occurred, Ms. Gaudreault and Mr. Morneau occupied manager positions at the CRA. Mr. Gionet was the assistant director of auditing. The four witnesses occupied positions at the CRA in the greater Montreal area. With the exception of a few points to which I will return as needed, the evidence adduced by both parties was not contradicted.

A. Selection process 2006-5140-QUE-1208-5140

8 Many CRA employees, including auditors at the AU-05 group and level, are supervised by team leaders at the MG-05 group and level. Given the large number of vacant MG-05 positions in the greater Montreal area in 2005, in April or May 2006 the employer published the job posting for the 2006-5140-QUE-1208-5140 selection process, thus initiating a process that would result in the appointment of new MG-05s. On December 12, 2005, the employer informed all employees that the job posting would be published in about April 2006 and that the different stages of the selection process would be conducted between May and September 2006.

9 The job posting indicated that the deadline for applications was May 29, 2006, that candidates would be asked to attend a briefing session on June 13, 2006, that a written examination would be held on June 20 and that candidates were to submit written work on August 11 to evaluate several organizational skills. The job posting also set out the requirements of the position and the criteria that would be used to place successful candidates.

10 In accordance with the delegation of authority at the CRA, Mr. Gionet was the executive authorized to conduct the selection process. In that capacity, he appointed Ms. Gaudreault as the chairperson of the selection committee and other managers, including Mr. Morneau, as committee members. In November 2006, Ms. Gaudreault went on leave for one year. Mr. Morneau replaced her. Either the chairperson of the selection committee or the committee itself made decisions about managing the selection process. Mr. Gionet was occasionally consulted, depending on the nature of the decision to be made.

11 One hundred thirty-six employees applied for the selection process. Only one person did not meet the basic requirements. Of the remaining 135 employees, 110 completed the selection process. Of them, 71 qualified as MG-05s, of whom 60 were then appointed to positions. Of the 60 candidates appointed, 6 were current or former union representatives. The pool of candidates qualified by the selection process has been invalid since October 2009.

12 At the June 13, 2006 briefing session, Ms. Gaudreault notified the candidates that they would have to respect the deadlines set out in the job posting except for unforeseen circumstances that would have to be justified. She recalled stating that a medical certificate would be required as supporting documentation for any absence due to illness. According to Ms. Gaudreault, everyone was aware of the unwritten rule that candidates who called to advise that they would not report for an examination due to illness were required to support that statement of illness with a medical certificate. The rule was confirmed by emails between Corrado Cianciullo, a candidate for another selection process conducted at the same time, and Serge Diotte, a manager. Mr. Diotte informed Mr. Cianciullo that missing the examination required the support of a medical certificate.

B. Management of exceptional cases in the selection process

13 Ms. Gaudreault testified that, because of the large number of candidates and the obligation to treat everyone fairly, the selection process was managed quite strictly. That said, the selection committee decided to accommodate emergencies. Ms. Gaudreault or the selection committee were called to handle a few requests from candidates who, for different reasons, were unable to meet the deadlines for the selection process.

14 Jean Rousseau did not report for the June 20, 2006 examination. Mr. Rousseau called a day or two later to inform Ms. Gaudreault that he had been ill on June 20, 2006. Ms. Gaudreault told him that he would have to produce a medical certificate as supporting documentation for his absence if he wished to be eligible to take the examination again. Mr. Rousseau told her that he would withdraw from the selection process.

15 Ms. Langlois-Gravel felt ill shortly after beginning the June 20, 2006, examination. The selection committee allowed her to leave the examination and to take it again on July 7, 2006.

16 Dina Abenaim notified the selection committee ahead of time that she would be unable to write the June 20, 2006 examination because she had an appointment with a medical specialist on that day. The selection committee allowed her to take the examination on June 22, 2006.

17 The selection committee authorized three additional candidates to take the examination on a different date. In May 2006, France Côté and Anh-Minh Nguyen each notified the selection committee that they would be on leave outside the country on June 20, 2006. Romano Fratarcangeli was already on sick leave before June 20, 2006 and knew that he would not be back from leave on the day of the examination. His sick leave was supported by a medical certificate. The selection committee allowed the three candidates to take the examination on August 8, 2006.

18 According to Ms. Gaudreault, seven or eight candidates were on leave for the entire summer of 2006. All of them reported for the June 20, 2006 examination, and they all submitted the written work on time on August 11, 2006.

19 One candidate called Ms. Gaudreault on Monday, August 14, 2006 to inform her that she had forgotten to submit the written work that was due on Friday, August 11, 2006. Ms. Gaudreault asked her to submit explanations in writing so that she could consider the situation. The candidate opted to withdraw her application.

20 Sylvie Côté was pregnant at the time of the selection process and was in danger of losing her future child if she travelled too much during her pregnancy. The selection committee responded to her needs by going to her home so that she could take the examination.

C. Mr. Veillette’s participation in the selection process

21 Mr. Veillette submitted his application for the MG-05 position after the job posting was published in April or May 2006. Mr. Veillette did not attend the briefing session on June 13, 2006 informing the candidates of the details of the process. On June 20, 2006, the day of the written examination, Mr. Veillette called his team leader, Serge Cléroux, to inform him that he would not report for the written examination because he was ill. At 08:45, Mr. Cléroux conveyed that information to Mr. Morneau, who was his manager and a member of the selection committee. Mr. Morneau immediately notified Ms. Gaudreault. Ms Gaudreault asked Mr. Morneau to call Mr. Veillette and notify him that he was required to provide a medical certificate to justify his absence from the written examination. Mr. Morneau called Mr. Veillette at the number of the cellphone that the CRA had provided him for his work. Since Mr. Veillette did not answer, Mr. Morneau left him a message informing him of the requirement to provide a medical certificate to justify his absence from the examination.

22 Mr. Veillette called Mr. Morneau on June 21, 2006, as he was travelling to Lac Saint-Jean for a union meeting that was to last a few days. Mr. Veillette and Mr. Morneau discussed Ms. Gaudreault’s medical certificate requirement. Mr. Veillette responded that he did not have a medical certificate. He then requested that the coaching and the written work due on August 11 be rescheduled to a later time following his leave with income averaging, i.e., after August 25, 2006. Mr. Morneau conveyed Mr. Veillette’s position and requests to Ms. Gaudreault.

23 Mr. Veillette had informed Ms. Gaudreault on June 19, 2006 that he would be on leave with income averaging in July and August 2006. Mr. Veillette took that leave to care for his child during the summer. That same day, Ms. Gaudreault notified him that he was still required to submit the work required for the selection process that was due on August 11, 2006.

24 On June 30, 2006, Ms. Gaudreault wrote to Mr. Veillette, informing him that he was required to produce a medical certificate supporting his absence from the June 20, 2006 examination and to contact her to arrange the date on which to take the examination. Ms. Gaudreault also informed Mr. Veillette that, if he decided not to comply with the instructions, his application would no longer be considered. In closing, Ms. Gaudreault reminded Mr. Veillette that the required written work was due August 11, 2006.

25 On July 18, 2006, Mr. Veillette wrote to Ms. Gaudreault, pointing out that he was on leave for the entire summer and asking her to postpone the stages required of him until September 2006. He also informed Ms. Gaudreault that Mr. Gionet allegedly told him on May 25, 2006 that, given his absence over the summer, he could submit the written work in September 2006. In his testimony, Mr. Gionet stated that he did not say that to Mr. Veillette. Rather, he had said that possibly the interviews would not be conducted during the summer. Mr. Veillette testified that Mr. Gionet allegedly told him that it would be possible to postpone everything until the fall.

26 On July 31, 2006, Ms. Gaudreault responded to Mr. Veillette’s July 18, 2006, letter, reiterating what she had written to him on June 30, 2006. She also informed him of the deadlines for the other stages of the selection process in September and October 2006. On October 26, 2006, Ms. Gaudreault wrote to Mr. Veillette again, notifying him that she considered that he had withdrawn from the MG-05 selection process because he did not submit the written work due on August 11, 2006. On November 24, 2006, Mr. Veillette responded that he had never indicated that he was withdrawing from the selection process but rather that he was on leave for the entire summer.

27 On January 29, 2007, Mr. Morneau, replacing Ms. Gaudreault, who had been on leave since November 2006, informed Mr. Veillette that his failure to comply with the requirements of the selection process was equivalent to withdrawal. Mr. Morneau added that Mr. Veillette was not eligible for the staffing recourse available to CRA employees.

28 In January and February 2007, emails were exchanged between the Quebec Region Human Resources Directorate and CRA headquarters concerning recourse in the matter of Mr. Veillette’s application. The exchange resulted in a position change, which was communicated to the Quebec Region on February 12, 2007. On April 16, 2007, Mr. Morneau sent Mr. Veillette a letter informing him that he was eligible for recourse in the MG-05 selection process. On April 25, 2007, Mr. Veillette took advantage of the recourse.

29 Mr. Gionet testified that in the past Mr. Veillette, in his capacity as a union representative, had asked him not to hold selection processes during the summer but instead to initiate them in the fall. At that time, Mr. Veillette informed Mr. Gionet that he would not participate in a selection process held during the summer because he was on leave with income averaging. Mr. Gionet then advised Mr. Veillette not to make that request into a union battle but to cooperate with the selection committee if he wanted to obtain an MG-05 position.

30 Mr. Gionet testified that he had a fairly good relationship with Mr. Veillette in his union representative role. Granted, they did not agree on some matters, such as staffing positions externally and interpreting the travel policy and a complaint that the union made on observing the legal provisions about official languages. Mr. Gionet expressed the opinion that the disagreements were normal in the context of union-management relations. Mr. Veillette testified that, in his capacity as a union representative, he had had a number of heated discussions with representatives of the employer. He confirmed that, overall, his relationship with Mr. Gionet was good, but added that the employer was annoyed with the positions adopted and the pressure exerted by the union. Mr. Veillette alleged that he would have been treated differently and more flexibly in the MG-05 selection process had he not been a union representative.

D. Acting appointments at the MG-05 group and level

31 The evidence adduced showed that, starting in 2004, a great many acting appointments were made to positions at the MG-05 group and level in the CRA offices in the greater Montreal area. For a short-term appointment, the employer usually appointed an employee from the section in which the position was to be filled. For a longer-term appointment, the employer was able to call on employees from other sections and appoint them to the vacant position. Most often, employees at the AU-03 group and level were appointed.

32 Mr. Veillette has occupied a position at the AU-03 group and level for a number of years. He is considered a good auditor. In fact, in 2003, Mr. Gionet highlighted the quality of Mr. Veillette’s work in writing. Mr. Gionet noted in Mr. Veillette’s 2002-2003 performance evaluation that he had exceeded expectations. That said, unlike his fellow auditors, Mr. Veillette has never been appointed to an acting MG-05 position. In 1999, Mr. Veillette became a union representative. He gradually assumed greater union responsibilities and, in 2004, was elected president of the union local for his bargaining unit. In that capacity, he performed union activities full-time, but the employer continued to pay him.

33 Mr. Gionet explained that second-language proficiency at the BBA level is a requirement for MG-05 positions. Mr. Veillette admitted that he did not meet that language requirement. Mr. Gionet testified that he had advised Mr. Veillette to improve his language proficiency so that he could improve his promotion chances.

34 The parties also adduced evidence of discussions between Mr. Veillette and Mr. Gionet and with the CRA Director, Quebec Region, concerning an acting appointment for Mr. Veillette to an MG-05 position. The discussions were about the employer’s difficulty in appointing Mr. Veillette as an acting MG-05 team leader because he worked at the union full-time. They also dealt with the possibility of appointing Mr. Veillette to an MG-05 training position under which the employer could accommodate Mr. Veillette’s absences on union business on condition that he spend a substantial portion of his time on his MG-05 duties. That possible appointment never became a reality.

35 Mr. Veillette admitted that he never took advantage of the recourse available to him when the acting appointments were made between 2004 and 2007.

III. Summary of the arguments

A. For Mr. Veillette

36 Ms. Gaudreault adopted a rigid position toward Mr. Veillette because he was a union representative. In acting that way, Ms. Gaudreault did not consider Mr. Veillette’s special needs and refused to accommodate him, in contrast to her behaviour toward other employees. On that note, on June 13, 2006, she agreed to postpone the examination for two employees. She also allowed one employee to leave the examination because that person felt ill. Although there is very little difference between leaving an examination due to illness and not reporting for an examination for the same reason, that employee was allowed to postpone the examination. As the evidence demonstrated, other employees were also accommodated, for different reasons. Mr. Veillette was not accommodated simply because he was a union representative.

37 When Mr. Veillette called to advise that he was ill and that he would not write the June 20, 2006 examination, he was not asked for a medical certificate. Rather, Ms. Gaudreault decided that a medical certificate was required and asked Mr. Morneau to so notify Mr. Veillette. The job posting did not mention that candidates who did not report for the examination due to illness would be required to produce a medical certificate. The employer stated that the medical certificate instruction was announced at the June 13, 2006 briefing session, which Mr. Veillette did not attend.

38 Then, on June 30, 2006, Ms. Gaudreault again asked Mr. Veillette to produce a medical certificate. At that point, 10 days after the June 20 absence, it was not possible to obtain a medical certificate. Later, Mr. Gionet stated that the requirement for a medical certificate could have been relaxed if Mr. Veillette had met the other conditions of the selection process.

39 Contrary to what Mr. Morneau wrote to Mr. Veillette, Mr. Veillette never withdrew from the selection process. The employer excluded him from it and then notified Mr. Veillette that he was not eligible for the staffing recourse available to CRA employees. At that point, Mr. Veillette filed grievances. In reaction, the employer changed its position and informed Mr. Veillette that recourse was available to him. It later argued that Mr. Veillette’s grievances were invalid because another recourse was available to him.

40 Because of Mr. Veillette’s union involvement, the employer did not consider his family status, and it refused to accommodate him. In summer 2006, Mr. Veillette took leave with income averaging to care for his child. The employer was aware of that fact but refused to accommodate him by postponing the selection process until he returned from leave. However, as the evidence demonstrated, a number of other employees were accommodated.

41 Although Mr. Veillette was never appointed to an acting MG-05 position, other auditors were appointed. Mr. Veillette was prepared to spend less time on his union activities to be appointed to such a position. The evidence demonstrated that, from 2004 to 2007, numerous acting appointments were made to positions at the MG-05 level.

42 Although the three grievances are about the employer’s staffing actions or practices, the adjudicator has jurisdiction to hear them because the employer violated the no discrimination clause of the collective agreement. These grievances must be treated as being about the application or interpretation of a collective agreement.

43 Clause 43.01 of the collective agreement, the no discrimination clause, confers substantive rights on employees. There is no need to allege the discriminatory application of another provision of the collective agreement to trigger application of clause 43.01, which applies to any action or decision by the employer affecting working conditions in general.

44 Finally, when Mr. Veillette filed the two grievances about the MG-05 selection process, the employer had clearly indicated to him in writing that, according to its relevant policy, he was not eligible for recourse. Since no recourse was available to him, he was fully entitled to file grievances.

45 Mr. Veillette referred me to the following decisions: Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68; Johal and Stasiewski v. Canada Revenue Agency and Mao, 2009 FCA 276; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital généralde Montréal, 2007 SCC 4; and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.

B. For the employer

46 The employer objected to an adjudicator’s jurisdiction to hear the three grievances. Subsection 208(2) of the Act provides that a grievor may not file a grievance if a procedure for redress is provided under any other federal statute. The three grievances are about staffing processes. Subsection 53(1) of the Canada Revenue Agency Act, S.C. 1999, c. 17 (CRAA), gives the CRA the exclusive right to appoint employees. Subsections 54(1) and (2) of the CRAA require the CRA to develop a program governing staffing, including the appointment of, and recourse for, employees, and provide that no collective agreement may deal with matters governed by the staffing program.

47 The employer expressed reservations about the scope of clause 43.01 of the collective agreement, which deals with discrimination. Since that clause is not applicable to all situations, its scope is necessarily limited. Including that clause in the collective agreement does not necessarily broaden access to grievance adjudication.

48 Despite those preliminary considerations, the employer argued that Mr. Veillette was not discriminated against and that, therefore, clause 43.01 of the collective agreement was respected.

49 The employer conducted the MG-05 selection process responsibly. Beginning in December 2005, employees were informed that the job posting initiating the staffing action would be published in April 2006. The job posting was published and informed interested persons that the deadline for applications was May 29, 2006, that a written examination would be held on June 20 and that candidates were to submit written work on August 11 to allow certain skills to be evaluated. Out of concern for fairness for everyone, and given the great number of interested persons, the employer had to be strict in managing the process. Thus, postponing the deadline for any individual had to be an exceptional measure.

50 Mr. Veillette was not interested in participating in the selection process in June and July. He had already informed Mr. Gionet of that fact. Nevertheless, Mr. Gionet had encouraged him to participate. The day before the June 20, 2006 written examination, Mr. Veillette wrote to Ms. Gaudreault, informing her that he would be on leave in July and August. Mr. Veillette never submitted a detailed and supported request to be accommodated during the summer because he was on leave with income averaging and detailing why that type of leave justified an accommodation. Instead, he stated that he was not interested in complying with the requirements of the stages of the selection process in July and August.

51 In a selection process, employees must assume their responsibilities. One is to be present at its different stages. In addition to Mr. Veillette, a few employees did not report for the June 20, 2006 examination. The circumstances of the absences of those employees were different from those of Mr. Veillette’s absence. Furthermore, those employees made prior arrangements with the selection committee. It was clear that being absent on the day of the examination due to illness had to be supported by a medical certificate. Mr. Veillette did not produce one.

52 Mr. Veillette also refused to submit the written work on August 11, 2006, on the pretext that he was on leave during the summer. At that point, he excluded himself from the selection process. It would have been unfair to the other candidates for the selection committee to agree to different deadlines for Mr. Veillette, particularly since a number of other employees were also on leave in summer 2006.

53 Mr. Veillette was not discriminated against. None of the employer’s decisions in managing the MG-05 selection process was motivated by him being a union representative or on leave with income averaging.

54 It is true that the employer did not offer Mr. Veillette acting appointments. However, the evidence demonstrated that that fact did not constitute discrimination. First, Mr. Veillette did not meet the language requirement of the positions. In addition, it was difficult to appoint him on an acting basis if he was unable to occupy the positions because of his full-time union duties.

55 The employer referred me to the following decisions: Pepper v. Deputy Head (Department of National Defence), 2008 PSLRB 71; Brown v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 127; and Souaker v. Canadian Nuclear Safety Commission, 2009 PSLRB 145.

IV. Reasons

A. An adjudicator’s jurisdiction to hear the grievances

56 The employer objected to my jurisdiction to hear the grievances since subsection 208(2) of the Act prevented Mr. Veillette from filing grievances because he had access to recourse under the CCRA, specifically the staffing recourse offered to CRA employees. Instead, Mr. Veillette alleged that his three grievances are about the interpretation or the application of clause 43.01 of the collective agreement.

57 In ruling on the employer’s objection, I must consider the following provisions of the Act:

…

208. (2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

…

209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required …

…

58 Additionally, I must examine subsections 53(1) and 54(1) and (2) of the CRAA, which read as follows:

53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.

…

54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.

(2) No collective agreement may deal with matters governed by the staffing program.

59 The evidence adduced has clearly established that, on February 26, 2007, when Mr. Veillette filed his two grievances on the MG-05 selection process, no recourse for contesting the employer’s decisions was available to him. Recourse was made available to him only on April 16, 2007, following a change in management’s position. Thus, the employer’s objection does not hold up. When Mr. Veillette filed his two grievances about the MG-05 selection process, no procedure for redress was available to him under another statute, in this case, under the CRAA. On that point, the facts differ from those in Brown, where an administrative procedure for redress was available to the grievor. Instead, the facts are comparable to those in Gibson, in which no redress procedure was available to the grievor.

60 Granted, the employer made recourse available to Mr. Veillette on April 16, 2007. However, when the grievances were filed, no administrative procedure for redress was available to Mr. Veillette. In January 2007, when the employer notified Mr. Veillette that the CRA staffing recourse was not available to him, the employer had decided on the rules that would apply. The employer must assume responsibility for those rules and not subsequently change them, thus depriving Mr. Veillette of the right to file grievances.

61 However, the situation is different for the grievance about the acting appointments. When the employer made the appointments, it never notified Mr. Veillette that he had no recourse for contesting them. I have no doubt that Mr. Veillette was aware of the employer’s directive on the staffing recourse. He was an experienced employee. In addition, he had performed union duties since 1999. He chose not to take advantage of the recourse against the acting appointments when he could have. He must accept the consequences of his choices. Subsection 208(2) of the Act prevents him from filing a grievance contesting the appointments since an administrative procedure for redress was available to him. Had he taken advantage of that recourse, Mr. Veillette could have alleged that he was discriminated against because he was not considered for acting appointments.

62 Although the collective agreement contains a no discrimination provision, clause 43.01, it may not confer a right to grieve counter to the application of subsection 208(2) of the Act. In this case, clause 43.01 confers a right to grieve only if there is no other remedy. In the two grievances about the MG-05 selection process, clause 43.01 confers a right to grieve because no other remedy was available to Mr. Veillette. In the grievance about the acting appointments, clause 43.01 cannot confer a right to grieve since another remedy was available.

63 The other jurisdictional issue is about the scope of clause 43.01 of the collective agreement. Mr. Veillette alleged that, during the MG-05 selection process, he was discriminated against due to his union activities and family status. Those grounds are listed in clause 43.01. However, the discrimination was not about the interpretation or application of the collective agreement but rather about the employer’s staffing actions or decisions.

64 Clause 43.01 of the collective agreement creates a substantive right because it forms part of the collective agreement. If an employee alleges its violation, the allegation is clearly about the interpretation or the application of the collective agreement. That clause requires the employer to treat all its employees without discrimination, regardless of whether a given situation or topic is covered in a collective agreement. Like the adjudicator in Souaker, I conclude that the no discrimination clause confers a substantive right that may be the subject of a grievance that may be referred to adjudication.

B. Merits of the grievances

65 To allow the grievances, I would have to conclude that the employer’s decisions had the effect of excluding Mr. Veillette from the MG-05 selection process because of his union involvement or family status. The evidence has established that Mr. Veillette was a union representative during the selection process and that he took leave with income averaging to take care of his child in summer 2006. The evidence also established that he was excluded from the selection process because he did not report for the June 20, 2006 examination and because he did not submit the written work due on August 11, 2006.

66 As the Supreme Court of Canada pointed out in McGill University Health Centre (Montreal General Hospital), membership in a protected group, which in Mr. Veillette’s case comes from the collective agreement, does not alone guarantee access to a remedy. Instead, the link between that group membership and the arbitrariness of the decision or its impact provides access to a remedy. The onus of establishing that discrimination rests on Mr. Veillette.

67 Absolutely nothing in the evidence could lead me to conclude that Mr. Veillette being a union representative had any effect, direct or indirect, explicit or implicit, on the employer’s decision to exclude him from the MG-05 selection process. Mr. Veillette was excluded from the selection process because he did not report for the June 20 examination and because he did not submit the work due on August 11. Mr. Veillette adduced no evidence that he was unable to meet those requirements because of his union involvement. Instead, the evidence established that he did not report for the June 20 examination because he was ill and that he decided not to submit the written work due on August 11 because he was on leave.

68 The adduced evidence has convinced me that the employer’s decisions to request a medical certificate supporting Mr. Veillette’s absence on June 20, 2006 and to refuse to postpone the deadline for the written work until September 2006 were not motivated by Mr. Veillette’s union involvement. The employer was entirely justified in setting relatively rigid rules for managing the staffing process in light of the great number of applications and the need to not create undue advantages for certain candidates. There was nothing abusive in the employer asking Mr. Veillette to support his June 20 absence with a medical certificate. That rule applied to everyone.

69 The evidence established that the employer allowed some employees to postpone the June 20, 2006 examination. However, those employees’ situations are not comparable to Mr. Veillette’s situation. In fact, those employees had made prior arrangements with the selection committee, which had agreed to postpone the examination since, in its opinion, there were valid reasons to postpone it. The selection committee also agreed to postpone the examination for one employee who reported for the examination but who, shortly after the examination began, became visibly ill and became unable to continue the examination. The only case comparable to Mr. Veillette’s is that of Mr. Rousseau, who called to say that he had been unable to report for the examination because he had been ill. As she did in the case of Mr. Veillette, Ms. Gaudreault asked Mr. Rousseau to produce a medical certificate supporting his absence.

70 According to the adduced evidence, the selection committee did not accept any postponement of the deadline for submitting the written work. Everyone met the August 11, 2006 deadline. Although seven or eight candidates in addition to Mr. Veillette were on leave in summer 2006, they submitted their work on August 11, 2006. However, Mr. Veillette requested that the deadline be postponed until the fall. The only justification he provided in support of his request was that he was on leave.

71 No evidence has been adduced before me that could lead me to conclude that there was discrimination on the grounds of family status. Mr. Veillette did not state either to employer or to the adjudicator at the hearing that he was unable to complete the written work by August 11 because caring for his child prevented him from doing so. Nor did he ask the employer to accommodate him for that reason. Instead, he requested that the August 11 deadline be postponed because he was on leave. Had Mr. Veillette been able to establish that he was unable to meet the deadline because of his family status, the selection committee would then have been obliged to make efforts to accommodate him; otherwise, I would undoubtedly have concluded that he had been discriminated against.

72 As for postponing the August 11, 2006 deadline, I would add that no evidence led me to believe that the employer authorized the other candidates in the MG-05 selection process to prepare their written work during working hours. Some candidates may have completed their work in the evenings or on weekends; others may have used annual leave. Each candidate had the same responsibility: to meet the August 11, 2006 deadline. Unless there were valid reasons, for example a particular family status that prevented a candidate from meeting the deadline, the employer was entirely justified in maintaining a hard line and refusing requests for postponement as it did for Mr. Veillette.

73 There was nothing discriminatory in the selection committee’s response refusing Mr. Veillette’s request to postpone the August 11, 2006 deadline. Mr. Veillette did not establish any link between his exclusion from the MG-05 selection process and his union involvement or family status. Since that link was not established, there is no prima facie evidence of discrimination.

74 For all of the above reasons, I make the following order:

V. Order

75 I do not have jurisdiction to hear the first grievance (PSLRB File No. 566-34-2769).

76 The second grievance (PSLRB File No. 566-34-2770) is dismissed.

77 The third grievance (PSLRB File No. 566-34-2771) is dismissed.

February 23, 2010.

PSLRB Translation

Renaud Paquet,
adjudicator