Lamarche v. Marceau

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161-34-1240 (2004 PSSRB 29)
Lamarche v. Marceau

Before:  S. Matteau
Appearances: P. Gosselin, for the Complainant; S. Hould, for the Respondent
Decision rendered:  April 26, 2004

Unfair labour practice complaint under paragraph 23(1)(a) of the Public Service Staff Relations Act (PSSRA), alleging a violation of subsection 8(2) - Discrimination - Union activity - Anti-union animus - the complainant alleged that the respondent had breached section 8(2) of the PSSRA in not including the complainant in the selection process for an acting appointment by reason only of the complainant's unavailability, given that he occupied a national position within his union - the acting appointment was made from a list of interested employees, and the respondent chose the person who he felt was the most qualified - the respondent advised one witness that the complainant's candidacy had not been considered given that he was very busy with his union duties - the respondent testified that he relied heavily on advice from the complainants' supervisor regarding the candidates to backfill his position - the respondent claimed the choice was clear, as the chosen candidate possessed all of the desired qualifications, whereas the complainant did not have recent experience in the area of appeals, given that his union duties had absorbed much of his time in the year preceding the events in question - the Board, in a prior decision, set out a test for such cases, stating that the complainant must prove that a discriminatory measure was imposed regarding his or her employment or a term and condition of employment because of his or her membership in the union or his or her exercising a right under the PSSRA and that the measure was taken by the person named as the respondent - the Board found that the employer's need for someone with recent experience was legitimate and was not a discriminatory measure imposed on the complainant as a means of eliminating him from the competition process - while the complainant's union activities deprived him of the opportunity to acquire recent experience in the appeals area, his union activities were not the cause of his not being selected, as is prohibited by section 8 of the PSSRA - the Board also found that the staffing process (acting appointment while awaiting the results of the competitive process) had no discriminatory impact on the complainant that favoured the other candidates - the decision to staff in this manner was made on the advice of the human resources section and was the employer's prerogative under section 7 of the PSSRA - while anti-union animus can sometimes be inferred, the Board found that this was not the case here and accepted the respondent's explanation that the choice of candidate was based on experience and that the respondent's unavailability had no impact on the choice of candidate.

Complaint dismissed.

Cases cited: Fairall v. McGregor, PSSRB File No. 161-2-368 (QL); Gennings v. Milani, PSSRB File No. 161-2-87 (QL); Stonehouse, PSSRB File No. 161-2-137 (QL); Social Science Employees Association and Canadian Union of Professional and Technical Employees v. Claydon and Smith, 2002 PSSRB 101; Faryna v. Chorney, [1952] 2 D.L.R. 354 (BCCA).