Després v. Public Service Alliance of Canada

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161-02-1248 (2003 PSSRB 85), Després v. Public Service Alliance of Canada

Before: Y. Tarte
Appearances: Després, for the Complainant; C. La Bissonnière, for the Bargaining Agent
Decision rendered: October 2, 2003

Complaint pursuant to section 23 of the Public Service Staff Relations Act (PSSRA) – Duty of fair representation – Pay equity settlement – Paragraph 9.5 of a negotiated settlement exempted full recalculation – Preliminary objection on the jurisdiction of the Board to hear the complaint – Burden of proof – the complainant retired from Correctional Services Canada in 1999 as an AS-02 – in 1990, the position occupied by the complainant was reclassified from the CR-05 to the AS-02 level and the complainant's new salary was calculated in accordance with applicable regulations and the salary scales as they existed then – in October of 1999, after the complainant was retired, the Public Service Alliance of Canada (PSAC) and Treasury Board negotiated a settlement to the outstanding pay equity complaint filed by the bargaining agent under the Canadian Human Rights Act (CHRA) – the CR group formed part of the pay equity settlement and as a result of the settlement, salaries for the CR group were adjusted upwards – this settlement was ratified by the Canadian Human Rights Commission (CHRC) and filed with the Registry of the Federal Court under s. 57 of the CHRA, thereby becoming an order of the Federal Court for the purposes of enforcement – paragraph 9.5 of the minutes of settlement provided that for promotions that took place between 1985 and 1994, an amount equivalent to 5% of the pay equity amount owing to affected individuals would be awarded to those individuals and the employer would not be held to recalculate on a case-by-case basis – the complainant felt aggrieved by this and appealed to both the employer and the bargaining agent, without success – he then filed the instant complaint, alleging that his bargaining agent had acted in a discriminatory manner towards him – the bargaining agent raised a preliminary objection regarding the authority of the Board to hear the complaint given that the subject matter of the complaint was the pay equity settlement – the complainant stated that he did not contest the pay equity settlement but only the interpretation and application of paragraph 9.5 of the settlement, since this article prejudiced him and constituted discriminatory treatment towards him by his bargaining agent – the Board held that the burden of proof lay with the complainant and that the complainant had not met that burden – the Board concluded that the complainant had not established that the PSAC had acted in a manner that was arbitrary, discriminatory or in bad faith – the Board referred to the Supreme Court of Canada decision in the Gendron case, which stated that a bargaining agent has the right to choose the interests of one member or group of members over another in the case where those interests diverge, as long as the decision is not founded on improper considerations – as for the complainant's argument that paragraph 9.5 did not apply to him, the Board held that this was a question of interpretation of the settlement and was therefore a question which was outside the jurisdiction of the Board.

Complaint dismissed.

Cases cited:

Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 5007 [1990] 1 S.C.R. 1298; Le Syndicat des contrôleurs aériens du Québec (143-2-164); Public Service Alliance of Canada v. Treasury Board, 2001 PSSRB 81.