FPSLREB Decisions

Reasons for Decision

Introduction

1 The respondent, the President of the Canada Border Services Agency, submits that the Tribunal does not have jurisdiction to deal with this complaint because it involves an external appointment. This appointment was made using the student bridging mechanisms that are among the criteria for external non-advertised processes.

Background

2 On November 1, 2006, the complainant, Louis-Serge Robillard, filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under section 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA). He submits that the appointment of the appointed person was not fair and equitable. The person appointed was given an indeterminate position as a junior records filing clerk at the CR‑03 group and level through the Federal Student Work Experience Program (FSWEP) at the Canada Border Services Agency (process number: 06–BSF–ENA–HQ–COM–CR–3017).

3 The Tribunal wrote to the parties on January 26 to request their respective positions on the matter of jurisdiction. Those positions are outlined below.

4 The Tribunal finds that it does not have jurisdiction in this case and dismisses the complaint.

Issue

5 Does the Tribunal have jurisdiction to deal with a complaint involving an external non-advertised appointment through the FSWEP?

Submissions of parties

A) Respondent’s position

6 The respondent argues that the appointment was made through an external non-advertised appointment process on October 26, 2006, using the bridging mechanism for students who have participated in the FSWEP or other recognized programs.

7 According to the respondent, appointments by means of student bridging mechanisms are among the criteria set out for external non-advertised appointments in the Canada Border Services Agency’s Choice of Appointment Process Policy (the Policy).

8 In addition, the Human Resources Action Request indicates in the “Comments” section that it involves student bridging.

9 There was no notification of the appointment of the appointed person because there was no right of recourse. Recourse to the Tribunal in the case of internal appointments is provided for in section 77 of the PSEA.

10 The respondent further argues that “ENA”, which stands for “External Non-Advertised Appointment” in process number 06-BSF-ENA-HQ-COM-CR-3017, is the code used for external non-advertised appointment processes in the public service at large.

11 Lastly, the job offer made to the appointee indicates that the person will be subject to a probationary period of 12 months. Such probation is mandatory for all those appointed to the public service through an external appointment process.

B) Complainant’s position

12 The complainant considers his rights were violated. He has no problem with the appointee being appointed to an indeterminate position at the CR‑03 group and level. However, the fact that the complainant has held a term position since May 2004 is unacceptable. He is asking that the appointee be appointed to a term position and that the appointee apply for an indeterminate position like all the other employees. The complainant advances these two contradictory arguments.

C) Public Service Commission’s position

13 For its part, the Public Service Commission (PSC) is of the opinion that section 77 of the PSEA applies exclusively to internal appointment processes. The recourse available in the context of external staffing processes is found in section 66 of the PSEA and not in section 77 of the PSEA.

14 The PSC submits that it would not be unreasonable for the Tribunal to find that it does not have jurisdiction to hear this complaint.

Analysis

15 Does the Tribunal have jurisdiction to deal with a complaint involving an external non-advertised appointment through the FSWEP?

16 The Tribunal’s jurisdiction in the area of complaints concerning internal appointment processes is provided for in subsection 77(1) of the PSEA:

77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process; or

(c) the failure of the Commission to assess the complainant in the official language of his or her choice as required by subsection 37(1).

(emphasis added)

17 It seems clear from a reading of subsection 77(1) of the PSEA that the Tribunal’s jurisdiction is limited to the internal appointment process, which is defined in subsection 2(1) of the PSEA’s French version¹ as an “appointment of a person already employed in the public service” [Translation]. An external appointment, which is also defined in subsection 2(1) of the PSEA’s French version, is an “appointment of a person not employed in the public service” [Translation].

18 In this case, the respondent chose to conduct an external non-advertised appointment process under its Policy, which applies to both internal and external appointments. The Policy provides that a non-advertised appointment process may be used for a “student bridging mechanism.” The appointee was a participant in the FSWEP and was therefore not employed in the public service. This meets the definition of “external appointment” in subsection 2(1) of the PSEA.

19 With respect to the respondent’s argument regarding a mandatory probationary period for all employees appointed to the public service by means of an external appointment, the Tribunal notes that the job offer made to the appointee in fact refers to a 12‑month probationary period. Subsection 61(1) of the PSEA provides the following:

61. (1) A person appointed from outside the public service is on probation for a period

(a) established by regulations of the Treasury Board in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act; or

(b) determined by a separate agency in respect of the class of employees of which that person is a member, in the case of an organization that is a separate agency to which the Commission has exclusive authority to make appointments.

(emphasis added)

20 The probationary period to which the appointee is subject is another clear indication that the person was not employed in the public service within the meaning of subsection 2(1) of the PSEA.

21 Consequently, the Tribunal does not have jurisdiction to deal with this complaint because it involves an external appointment process.

Decision

22 For all these reasons, the complaint is dismissed.

Sonia Gaal

Vice-Chair

Parties of Record

Tribunal File:

2006-0201

Style of Cause:

Louis-Serge Robillard and the President of the Canada Border Services Agency et al.

Hearing:

Written request; decided without the appearance of parties

Date of Reasons:

April 19, 2007

1 The definitions of "internal appointment" and "external appointment" do not appear in the English version of the PSEA.