FPSLREB Decisions
Decision Information
The respondent requested that the Tribunal dismiss six complaints filed against an appointment made as a result of an external non-advertised appointment process. The respondent submitted that the person appointed to the position was on leave from the Canada Revenue Agency at the time of his appointment. It stated that priority clearance was obtained from the Public Service Commission and the appointee was offered a specified period appointment. The PSC submitted that recourse provided under the PSEA applies only to internal appointment processes. It further stated that the appointment in question was an external appointment process. Decision: The Tribunal found that the person appointed was, in fact, an employee of the public service. The onus rested on the respondent to prove that an external appointment process was conducted to staff the position. The Tribunal found that the respondent had provided no evidence that anyone from outside the public service was in fact considered for the position. The Tribunal found that, although the respondent believed it was conducting an external appointment process, by only considering one person who was already employed in the public service, an internal appointment process was conducted. The Tribunal therefore had jurisdiction to hear the complaints. Motion denied.
Decision Content
- Files:
- 2006-0251 to 0256
- Issued at:
- Ottawa, March 7, 2007
PETER RICHARDSON, LORRIE STEDEL, EWING POON, SAMUEL SIEB, QUINTON JANSEN AND LOIS HIRSCHFELD
Complainant
AND
THE DEPUTY MINISTER OF ENVIRONMENT CANADA
Respondent
AND
OTHER PARTIES
- Matter:
- Determination of jurisdiction
- Decision:
- The Tribunal has jurisdiction
- Decision rendered by:
- Helen Barkley, Member
- Language of Decision:
- English
- Indexed:
- Richardson et al. v. Deputy Minister of Environment Canada et al.
- Neutral Citation:
- 2007 PSST 0007
Reasons for Decision
Introduction
1 The respondent requests that the Public Service Staffing Tribunal (the Tribunal) dismiss six complaints filed pursuant to subsection 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (the PSEA), as the appointment was made as a result of an external non-advertised appointment process.
Background
2 On December 1, 2006, Peter Richardson, Lorrie Stedel, Ewing Poon, Samuel Sieb, Quinton Jansen and Lois Hirschfeld filed complaints with the Tribunal pursuant to subsection 77(1) of the PSEA concerning the appointment of Jack Sterling to the position of IM/IT Technical Support Team Leader (CS-03), with the Chief Information Officer Branch of Environment Canada in Vancouver, British Columbia.
3 The complainants are all employed in the Chief Information Officer Branch in Vancouver, British Columbia. As these six complaints deal with the same appointment process and all raise the same issues, the Tribunal consolidated them in accordance with section 8 of the Public Service Staffing Tribunal Regulations, SOR 2006-6 (the PSST Regulations), which provides for the consolidation of cases to ensure the expeditious resolution of complaints.
4 On January 29, 2007, the Tribunal received the respondent’s motion requesting that the complaints be dismissed.
Issue
5 The Tribunal must decide whether this was an external appointment process.
Submissions of parties
6 The respondent states that Mr. Sterling had taken a leave of absence from his employer, Canada Revenue Agency, a separate agency under the Financial Administration Act. He was seeking employment in western Canada. The Director, Chief Information Officer Branch, Pacific and Yukon Region, was seeking a qualified individual for the term position of IM/IT Technical Support Team Leader. Priority clearance was obtained from the Public Service Commission. Mr. Sterling was offered a specified period appointment from October 23, 2006 to October 19, 2007. The Director informed all Branch employees of Mr. Sterling’s one year appointment on October 20, 2006. Several documents relating to this appointment process were submitted by the respondent in support of its position that this was an external non-advertised process.
7 The Public Service Commission (the PSC) submits that the recourse provided under section 77 of the PSEA applies only to internal appointment processes. The choice of proceeding by way of an advertised or non-advertised appointment process rests with the PSC (or its delegate) pursuant to section 33 of the PSEA. It further submits that the proper recourse in the case of an external appointment process is that set out in section 66 of the PSEA.
8 None of the complainants filed submissions with respect to this motion.
Analysis
9 If this appointment was made pursuant to an external appointment process, then the Tribunal has no jurisdiction to consider and dispose of these complaints. It is the PSC which has authority, under section 66 of the PSEA, to investigate any external appointment process.
10 To assist in determining whether the respondent conducted an external appointment process, it is helpful to turn to the definitions in the PSEA. Section 2 of the PSEA includes the following pertinent definitions:
"external appointment process" means a process for making one or more appointments in which persons may be considered whether or not they are employed in the public service.
"internal appointment process" means a process for making one or more appointments in which only persons employed in the public service may be considered.
"public service" means the several positions in or under
- the departments named in Schedule I to the Financial Administration Act;
- the organizations named in Schedule IV to that Act; and
- the separate agencies named in Schedule V to that Act.
“separate agency” means an organization named in Schedule V to the Financial Administration Act.
11 The person appointed to this position, Mr. Sterling, was on leave of absence from the Canada Revenue Agency. The Canada Revenue Agency is a separate agency named in Schedule V to the Financial Administration Act, R.S. 1985, c. F-11, and is part of the “public service” for the purposes of the PSEA. Thus, at the time of his appointment to the CS-03 position at Environment Canada, Mr. Sterling was a person employed in the public service.
12 Under subsection 30(4) of the PSEA, in either an external or internal appointment process, a deputy head is not required to consider more than one person in order for an appointment to be made on the basis of merit.
13 However, a deputy head cannot designate an appointment process as an “external appointment process,” and then consider only one person who is already in the public service, since this would render the distinction between an “external appointment process” and “internal appointment process” meaningless. Moreover, designating an appointment process in such a way could lead to the circumvention of recourse to the Tribunal, which should be available to persons employed in the public service. Clearly, such an interpretation cannot be what Parliament intended when it set out these definitions in the PSEA.
14 The onus rests on the respondent to satisfy the Tribunal that an external appointment process was conducted to staff this position. The respondent has provided no evidence that anyone from outside the public service was in fact considered for this position.
15 The Tribunal finds that, although the respondent believed it was conducting an external appointment process, by only considering one person who was already employed in the public service, an internal appointment process was conducted.
16 The Tribunal does have jurisdiction, under subsection 77(1) of the PSEA, to hear complaints concerning an appointment made in an internal appointment process.
Decision
17 The respondent’s motion to dismiss these complaints is denied. The Tribunal will continue to consider and dispose of these complaints. In accordance with section 5 of the PSST Regulations, the complainants will have 10 days from the date of this decision to file their allegations with the Tribunal. Other time frames are adjusted accordingly.
Helen Barkley
Member
Parties of Record
- Tribunal Files:
- 2006-0251 to 0256
- Style of Cause:
- Peter Richardson et al. and the Deputy Minister of Environment Canada et al.
- Hearing:
- Written Request, decided without the appearance of the parties
- Date of Reasons:
- March 7, 2007