FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant seeks an order from the Public Service Staffing Tribunal (the Tribunal) for the provision of information related to two complaints filed pursuant to subsection 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

Background

2 The Correctional Service of Canada (the CSC) conducted an internal advertised appointment process (process number 2006-PEN-IA-ONT-16) to fill AS-02, Training Coordinator positions in the Ontario region.

3 On June 15, 2006, Teri Renkema, the complainant, was notified that she had failed to achieve a passing score during the interview and that she had been eliminated from the appointment process.

4 On June 29, 2006, candidates were notified of nine appointments and/or proposed appointments. Candidates were notified of three additional appointments and/or proposed appointments on August 15, 2006. Each notice informed candidates of their right to make a complaint to the Tribunal.

5 The complainant filed identical complaints in respect of each of the two notices.

6 On October 13, 2006, the complainant’s representative wrote to the Tribunal, requesting that the Tribunal order the respondent to provide the following information:

• a copy of the parts of the rating guide which contain the handwritten notes of the two assessment board members, with respect to the merit criteria that the complainant did not meet; and,
• copies of the corresponding documents containing the handwritten notes for the two successful candidates who obtained the lowest scores on each of the same merit criteria.

7 On October 27, 2006, the reply to the complainant’s request was provided on behalf of the Commissioner of the Correctional Service of Canada, the respondent. In its reply, the respondent raises the issue of placing conditions on the sharing of information.

8 In a letter dated November 21, 2006, the parties were advised of the Tribunal’s decision to consolidate the complainant’s two files in accordance with section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 (the PSST Regulations).

Issues

9 The Tribunal must answer the following questions:

1. Is the information requested by the complainant relevant to the complaints filed?
2. If so, should conditions be imposed on any disclosure of information?

Submissions of parties

10 The complainant submits that the requested documents provide direct evidence that is essential to her case.

11 The respondent submits that the assessments of other candidates are not relevant to the complaints and that the assessment board members’ notes related to the complainant should be sufficient.

12 The respondent states that each assessment board member recorded his or her notes for each candidate on a copy of the rating guide (the questions, expected responses and the marking/rating scheme). The respondent submits that providing copies of the rating guide could compromise appointment processes for Training Coordinator positions that are ongoing or about to begin in four other regions across the country.

13 The respondent proposes the following protection measures for any disclosure of the rating guide: that only the complainant’s representative have access to the information in a secure setting; that copies may not be made or removed from the file; that the complainant’s representative may make notes, but not transcribe the actual questions and answers; and, that the complainant and her representative be informed in writing that they may not disclose the contents of the rating guide.

Analysis

Issue I: Is the information requested by the complainant relevant to the complaints filed?

14 These complaints allege bias on the part of one assessment board member which negatively affected the complainant’s results in the appointment process.

15 The complainant has requested information related only to the merit criteria for which she failed to achieve a passing score. The Tribunal is satisfied that all information related to the portion of the assessment in which the complainant was unsuccessful is relevant to the complaints filed.

16 In support of her allegation of bias, the complainant has provided her account of events preceding, during and following this appointment process. She has laid a foundation for why she believes the assessment board member is biased against her. She is now requesting information that will allow her to determine if, in the context of the appointment process, she was treated differently by the different assessment board members and/or if she was treated differently from other, successful candidates. The information she has requested is relevant to her complaints.

Issue II: Should conditions be imposed on any disclosure of information?

17 The respondent has submitted that the same written examination and interview questions are currently being used, or will be used in appointment processes to staff Training Coordinator positions across the country. The respondent has submitted that any access to the rating guide must be provided in a manner that will ensure that the integrity of those ongoing and future appointment processes is not compromised.

18 Subsection 17(5) of the PSST Regulations authorizes the Tribunal to make an order for provision of information subject to any conditions that it considers necessary.

19 The Tribunal understands that, for reasons of efficiency and fairness, the CSC has decided to use one set of assessment tools for different appointment processes to staff identical positions. The Tribunal also recognizes that providing copies of this rating guide, in whole or in part, may jeopardize its continued use.

20 The respondent has not, however, demonstrated that a review of the portion of the rating guide that has been requested must be restricted to the complainant’s representative only. The Tribunal is satisfied that the assessment tools can be sufficiently protected without denying the complainant a direct review of the requested material.

Decision

21 For the reasons stated above, the Tribunal grants the request for an order for provision of information, subject to conditions.

Order

22 The Tribunal orders that the respondent provide to the complainant the following information: the parts of the rating guide which contain the handwritten notes of the two assessment board members, with respect to the merit criteria that the complainant did not meet; and, the corresponding documents containingthe handwritten notes for the two successful candidates who obtained the lowest scores on each of the same merit criteria.

23 The two successful candidates will be identified from among the total of twelve candidates appointed or proposed for appointment.

24 Copies of the documents will not be provided. Access to the information will be provided to the complainant in a secure setting, to be determined by the CSC, no later than December 4, 2006.

25 Copies of the documents may not be made or removed from the file.

26 Notes may be taken, including copying the handwritten notes of the assessment board members, but questions and expected answers may not be transcribed.

27 The names of the two successful candidates will be removed from the documentation provided to the complainant.

28 In accordance with section 18 of the PSST Regulations, the information obtained under this order may be used only for purposes of the complaints.

29 The complainant must file her allegations by December 14, 2006.

Merri Beattie

Member

Parties of Record

Tribunal Files:

2006-0092 and 0122

Style of Cause:

Teri Renkema and the Commissioner of the Correctional Service of Canada et al. et al.

Hearing:

Written request, decided without the appearance of the parties

Date of Reasons:

November 24, 2006