FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Ms. Wagna Célidon, seeks an order from the Public Service Staffing Tribunal (the Tribunal) for the provision of information related to a complaint filed on February 13, 2007 under subsection 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA) as a result of an acting appointment to the position of Senior Project Officer, Performance Assurance (AS–06) at the Correctional Service of Canada through a non‑advertised process (number 06–PEN–ACNI–QUE–ARQ–276). The respondent is the Commissioner of the Correctional Service of Canada.

Background

2 On March 16, 2007, the complainant filed two requests for an order for provision of information. In her first request, the complainant is seeking to obtain the narrative assessment of the incumbent of the position in question, as well as the criteria against which the appointee was assessed. In her second request, she is seeking to obtain the complete staffing file for the position since it was created.

3 In accordance with subsection 99(3) of the PSEA, the Tribunal has rendered a decision on these two requests for the provision of information without holding an oral hearing. The decision was made following a full review of the positions of the parties, which have been examined in detail and are summarized below.

Issues

4 The Tribunal must answer the following questions:

1. Is the written rationale that demonstrates how a non-advertised process meets the established criteria and the appointment values relevant?
2. Are the criteria used to assess the appointee relevant?
3. Is the complete staffing file for the position since its creation relevant?
4. Should the Tribunal grant the request for an extension to file the allegations?

Arguments

A) Complainant’s position

5 With regard to her first request, the complainant maintains that the information from the narrative assessment would enable her to determine whether the staffing file is complete and consistent with the policy of the Public Service Commission (the PSC). The Tribunal understands that the complainant is seeking to obtain the written rationale that demonstrates how the non‑advertised process meets the established criteria and the appointment values. The complainant also wants to find out which criteria were used to assess the appointee.

6 With regard to the second request, she maintains that she needs the appointment history for the position.

B) Respondent’s position

7 The respondent is opposed to the production of the documents, maintaining that they are not relevant. The complainant’s issue is that the process should have been advertised. There is no link between her complaint and her request to obtain the complete file. Furthermore, the respondent maintains that the complainant does not have the competence required to verify a staffing file.

Analysis

Issue I: Is the written rationale that demonstrates how a non-advertised process meets the established criteria and the appointment values relevant?

8 According to the French version¹ of subsection 17(4) of the Public Service Staffing Tribunal Regulations, SOR/2006-6 (the PSST Regulations), the Tribunal’s authority in the case of a request for an order for provision of information is as follows:

17. (4) S'il est d'avis que les renseignements sont pertinents et que leur communication ne présente aucun des risques mentionnés aux alinéas (1) a) à c), le Tribunal ordonne qu'ils soient communiqués, selon le cas, au plaignant, à l'administrateur général ou à la Commission.

(emphasis added)

9 The Tribunal’s case law has clearly established that a complainant must demonstrate concrete linkage between the information sought and the complaint at hand: Jolin v. Deputy Head of Service Canada et al.,[2006] PSST 0006; Oddie v. Deputy Minister of National Defence et al., [2006] PSST 0009; Smith v. Commissioner of Correctional Service of Canada et al.,[2006] PSST 0013. The requested information must have bearing on the crux of the complaint.

10 In this case, the complaint concerns the choice of a non-advertised process. The deputy head must make his or her choice of process in accordance with the policy of the PSC, as set out in section 16 of the PSEA: “In exercising or performing any of the Commission’s powers and functions pursuant to section 15, a deputy head is subject to any policies established by the Commission under subsection 29(3).” (emphasis added)

11 Subsection 29(3) of the PSEA states: “The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.” (emphasis added)

12 Consequently, the Tribunal considers that the respondent must comply with the PSC’s policy on the manner of making an appointment, including the process that it chooses in order to proceed with an appointment.

13 According to the PSC’s Policy on the Choice of Appointment Process, under the “Policy Requirements” heading, deputy heads must “ensure that a written rationale demonstrates how a non-advertised process meets the established criteria and the appointment values.” (emphasis added)

14 Moreover, in the PSC’s Appointment Policy Questions and Answers, the following is indicated in response to the question “Is there a preference in the legislation for advertised or non-advertised processes?:

(…) Although non-advertised appointment processes may be used when appropriate, PSC policy requires a rigorous demonstration of how the choice of a non-advertised process respects the values. PSC policy also requires that the choice of appointment process be consistent with the organization's human resources plan. Therequirements of the policy respond to areas of risk in selecting an appointment process (…) Deputy heads will also be required to establish criteria for the use of non-advertised processes. (…)

(emphasis added)

15 Lastly, the following is indicated under section IV.4 in the PSC’s Guide to Implementing the Choice of Appointment Process Policy:

4. Ensure that a written rationale demonstrates how a non-advertised process meets the established criteria and the appointment values.

The requirement for a written rationale ensures the manager's choice of a non-advertised process is well-documented, is consistent with the appointment values and meets the departmental criteria for using such a process. This will provide support for the decision made, and assist in explaining the decision to persons in informal discussion. One of the grounds for complaint to the Public Service Staffing Tribunal is abuse of authority in the choice of an advertised or non-advertised internal appointment process; therefore, a well documented decision will assist in supporting the decision. This requirement is also an element for which the deputy head will be accountable to the Commission.

(italics added; words in bold already in text)

16 Therefore, the complainant’s request regarding the provision of a written rationale concerning the choice of the non-advertised process is relevant in that it demonstrates how the respondent’s non-advertised process meets the established criteria and the appointment values.

17 However, in paragraph 3 of the complainant’s allegations, the Tribunal notes that a written rationale concerning the choice of the non-advertised process was given to her during a meeting with the respondent after the request for an order for provision of information had been submitted. The Tribunal therefore has determined that it is unnecessary to make an order for the provision of this information.

Issue II: Are the criteria used to assess the appointee relevant?

18 The complainant takes issue with the choice of process since she would have preferred it to be advertised so that she could have applied, as she feels that she has the essential qualifications for the position in question.

19 Section 77 reads:

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) (…)

20 The complaint concerns the choice of a non-advertised appointment process and not the fact that the appointment was not based on merit. The complainant is not claiming that the appointee does not meet the essential qualifications of the position. Her complaint concerns only the choice of process. The complainant has not established a direct link between the request for an order concerning the assessment criteria for the appointee and the complaint concerning the choice of process. The Tribunal therefore finds that the complainant’s request for an order for provision of information concerning the assessment criteria for the appointee is not relevant.

Issue III: Is the complete staffing file for the position since its creation relevant?

21 The complainant submits that she needs the history of the appointments to this position. However, she has not indicated how this request is relevant to her complaint. In the absence of arguments from the complainant, the Tribunal does not see how the history of the position is relevant to the choice of the non‑advertised process. The burden of demonstrating the relevance of the documents requested rests on the complainant. The complainant must demonstrate in a convincing manner that the documents requested have a direct link to the matters raised in her complaint, which she has not done.

Issue IV: Should the Tribunal grant the request for an extension to file the allegations?

22 According to the documentation on the Tribunal’s file, the complainant had until March 26, 2007 to provide her allegations to the Tribunal, which she did. Therefore, the Tribunal does not need to come to a decision on this issue, since it has become moot.

23 The deputy head received the allegations on March 26, 2007. The time frames will therefore be calculated from that date.

Decision

24 For all these reasons, the request is denied.

Francine Cabana

Member

Parties of Record

Tribunal File:

2007-0075

Style of Cause:

Wagna Célidon and the Commissioner of the Correctional Service of Canada et al.

Hearing:

Written request; decided without the appearance of parties

Date of Reasons:

April 19, 2007

1 The English version does not contain the concept of pertinence (relevance). The English version of subsection 17(4) reads: "If the Tribunal is satisfied that the provision of the information will not present any of the risks referred to in paragraphs (1)(a) to (c), the Tribunal must order that the information be provided to the complainant or the deputy head or the Commission."