FPSLREB Decisions

Reasons for Decision

Introduction

1 The respondent requested that the Public Service Staffing Tribunal (the Tribunal) dismiss the complaints filed under subsection 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA), in relation to four appointment processes.

2 Under the provisions of section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 (the PSST Regulations), the Tribunal consolidated the complaints in files 2007–0142, 2007–0143, 2007–0144 and 2007–0145. The internal appointment process in file 2007‑0141 is not part of this decision.

Background

3 The respondent initiated an advertised internal appointment process to fill International Development Officer positions at the PM–04 group and level (process number 06–IDA–IA–03779 — file 2007–0142). External appointment processes were held jointly with this internal appointment process to fill International Development Officer positions at the PM–03, PM–04 and PM–05 group and levels (process numbers 06–IDA–EA–00575 — file 2007–0143, 06–IDA–EA–00576 — file 2007–0144 and 06–IDA–EA–00592 — file 2007–0145).

4 The complainant applied in the advertised internal appointment process and in the three external appointment processes. He was not appointed or proposed for appointment in those processes.

5 No appointments or proposed appointments resulted from the advertised internal appointment process.

6 On March 22, 2007, the complainant filed his complaints under section 77 of the PSEA.

Issues

7 The Tribunal must answer the following questions:

1. Does the Tribunal have jurisdiction to consider the complaint involving the internal appointment process?
2. Does the Tribunal have jurisdiction to consider the complaints involving the external appointment processes?

Arguments of the parties

A) Arguments of the respondent

8 First, with regard to the advertised internal appointment process, the respondent submits that the complainant was not entitled to recourse under section 77 of the PSEA, since no appointments or proposed appointments were made for that process.

9 Secondly, the respondent submits that the Tribunal does not have jurisdiction to consider complaints involving the external appointment processes. The respondent submits that the appropriate recourse for external appointment processes rests with the Public Service Commission (the PSC) under section 66 of the PSEA. In fact, the complainant has already availed himself of that recourse.

10 The respondent cites section 2 of the PSST Regulations, under which the PSST Regulations apply to subsection 65(1), section 74, subsection 77(1) and section 83 of the PSEA, which mention only internal appointment processes. Section 77 of the PSEA therefore explicitly limits the Tribunal’s jurisdiction.

B) Arguments of the complainant

11 The complainant submits that Parliament did not explicitly exclude from the Tribunal’s jurisdiction external appointment processes and internal appointment processes that did not result in, or have not yet resulted in, an appointment or proposed appointment. He also indicates that Parliament did not give the PSC exclusive jurisdiction for external appointment processes.

12 The complainant submits that the grounds for complaint in internal or external appointment processes are many and argues that section 77 of the PSEA only identifies, without limiting, the grounds for complaint to those grounds alone when the PSC has made an appointment or a proposed appointment.

13 The complainant argues that, for purposes of complaints involving appointment processes, Parliament’s only clear exclusion with regard to the Tribunal’s jurisdiction appears in subsection 77(3) of the PSEA in relation to allegations of fraud and political influence.

14 He further argues that according to subsection 88(2) of the PSEA, the Tribunal’s mandate is not limited only to hearing complaints presented under subsection 65(1) or sections 74, 77, or 83 of the PSEA. Section 66 of the PSEA simply gives the PSC the possibility of investigating an external appointment process, without giving it exclusive authority to do so.

15 The complainant argues that subsection 77(1) simply and solely regulates the terms and conditions to be met for filing a complaint with the Tribunal, and does not limit the Tribunal’s jurisdiction.

16 Lastly, the complainant submits that, under section 9 of the PSST Regulations, no proceeding is invalid by reason only of a defect in form or a technical irregularity.

Analysis

Issue I: Does the Tribunal have jurisdiction to consider the complaint involving the internal appointment process?

17 Subsection 77(1) of the PSEA grants a right to recourse to a person who is not appointed or proposed for appointment in an internal appointment process. Subsection 77(1) states:

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:

(…)

(Emphasis added)

18 The complainant is right to state that subsection 77(1) of the PSEA aims to establish preliminary conditions for filing a complaint. Moreover, one of these conditions is that the PSC (or its delegate) must have made or proposed an appointment. A person cannot file a complaint regarding the fact that he or she was not appointed or proposed for appointment if the appointment or proposed appointment was not made. The Tribunal simply does not have jurisdiction to consider such a complaint. The Tribunal has previously addressed this issue a number of times, including in Czarnecki v. Deputy Head of Service Canada et al., [2007] PSST 001.

19 Therefore, the Tribunal finds that it does not have jurisdiction because the complainant does not have a right to recourse under subsection 77(1) of the PSEA.

Issue II: Does the Tribunal have jurisdiction to consider the complaints involving the external appointment processes?

20 Subsection 88(2) of the PSEA addresses the Tribunal’s mandate and states: “The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83.” The Tribunal therefore has jurisdiction to consider and dispose of complaints involving a lay-off under subsection 65(1), a revocation of appointment under section 74, an internal appointment under section 77 and the implementation of corrective action under section 83.

21 Another preliminary condition that is very clear from reading subsection 77(1) is that the appointment or proposed appointment must have been made through an internal appointment process. In Robillard v. President of the Canada Border Services Agency et al., [2007] PSST 0015, the Tribunal stated:

[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].

22 In this case, an internal appointment was not made. Therefore, only the external appointment processes need to be reviewed.

23 The complainant participated in three external appointment processes. Section 66 concerns external appointment processes and reads as follows:

66. The Commission may investigate any external appointment process and, if it is satisfied that the appointment was not made or proposed to be made on the basis of merit, or that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may

(a) revoke the appointment or not make the appointment, as the case may be; and

(b) take any corrective action that it considers appropriate.

24 The PSC’s remedial authority is set out in subsections 66(a) and 66(b) of the PSEA. The complainant has in fact applied to the PSC, which will be investigating the external appointment process and making the appropriate decision. The Tribunal does not have jurisdiction to consider the complaints, or to dispose of complaints involving an external appointment process.

25 Lastly, the complainant argues that no proceeding is invalid by reason only of a defect in form or a technical irregularity. The fact that the Tribunal does not have jurisdiction to consider or dispose of complaints filed following external appointment processes cannot constitute a defect in form or a technical irregularity. Therefore, this situation cannot be remedied under section 9 of the PSST Regulations.

Decision

26 For all these reasons, the respondent’s requests for dismissal are granted. Therefore, the four complaints are dismissed for want of jurisdiction.

Francine Cabana

Member

Parties of Record

Tribunal Files:

2007-0142 to 0145

Style of Cause:

Jean-Daniel Ondo Mvondo and the President of the Canadian International Development Agency et al.

Hearing:

Written request, decided without the appearance of parties

Date of Reasons:

July 11, 2007

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