FPSLREB Decisions

Reasons for Decision

Introduction

1 On September 11, 2006, Mr. Robert Kane filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under paragraph 77(1) (b) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA). The complainant applied for the position of Manager, In-Person and Community Services (process number 06–CSD–IA–NFLD–SC–02) (PM–06) in the Department of Human Resources and Social Development - Service Canada (Service Canada).

2 He alleges abuse of authority by the respondent, the Deputy Head of Service Canada, in two respects: first, in declaring his substantive position a new position rather than a reclassified position; and, secondly, for choosing an internal advertised process rather than an internal non-advertised process to staff the position.

3 In accordance with subsection 99(3) of the PSEA, the Tribunal decided this complaint without holding an oral hearing. The decision is rendered based on the parties’ submissions which were reviewed in detail and summarized below.

Background

4 In May 2005, a new interim organizational structure was announced for the Newfoundland and Labrador Region of Service Canada to provide for region‑wide business line management. The In-Person Community Services (the IPCS) business line was then established.

5 On August 30, the Service Delivery Manager IPCS position (PM-05) was created. On September 1, the complainant was deployed into the position from his substantive PM-05 position.

6 On October 6, 2005, a memo to all staff in the Newfoundland Region announced that, as a result of the interim reorganization that took place in May, there would be a review to determine an appropriate level of resources for the Regional Support Unit for the IPCS Directorate.

7 Further to the review, there was approval by the Regional Management Board on February 14, 2006 to establish the IPCS Support Unit. It was to be comprised of a Regional Manager (PM-06) and six staff, which included two PM‑05s, two PM-04s, one AS-03 and one CR-04.

8 The Regional Management Board proceeded with an internal advertised appointment process in February to fill the PM-05 and PM-06 positions. The complainant applied for the PM-06 position in February, 2006. The respondent assessed the candidates by using a Public Service Commission (the PSC) standardized test, the 810 Managerial In-Basket Exercise (standardized test).

9 A memo dated March 1 was given to all the staff in the Newfoundland Region concerning the reorganization of Regional Headquarters. The memo stated that the Regional Manager IPCS position was sent to classification for review. If it was classified at the PM-06 level, it would be filled from the pool of candidates resulting from the PM-06 advertised process that was underway. The memo also mentioned that “Bob Kane will continue as Manager, IPCS pending the outcome of the classification review.”

10 The Regional Manager IPCS position was classified as a PM-–06 effective June 15. The complainant had been acting in the Regional Manager position and, therefore, received acting pay retroactive to February 14 since this was the date Regional Management Board approved the establishment of the Regional Manager IPCS position.

11 By letter dated May 1, the complainant was informed he did not achieve the necessary pass mark on the standardized test and was not considered further in the process.

12 By email dated August 9, the complainant was told that on completion of his acting assignment, he could continue to have a position in the IPCS at his substantive PM–05 level, and be deployed into one of the PM–05 positions created through the reorganization, or he could be placed on a priority list for another PM–05 vacancy. The work of the complainant during his acting assignment was also acknowledged in the following words: “There is no doubt that the work you did during the past several months was significant and contributed greatly to the organizational structure that was recommended and approved…”.

13 The complainant was informed on August 31 that his substantive position was declared redundant. He was offered a deployment to a Senior Project Manager position within the IPCS Directorate. He was also asked to continue acting in the Regional Manager IPCS position until the end of September or until an appointment was made, whichever came first, to which he agreed.

14 The complaint was made to the Tribunal on September 11. By email dated September 18 to the Tribunal, the respondent confirmed that a person had been proposed for appointment to the position of Manager, In-Person and Community Services.

Issues

15 The Tribunal must answer the following questions:

1. Was there an abuse of authority in the choice of an internal advertised appointment process to staff the Regional Manager IPCS position?
2. Was there an abuse of authority in the decision not to appoint the complainant to the position?

Arguments

A) Complainant’s arguments

16 The complainant believes that his substantive position Service Delivery Manager, IPCS (PM-05) was reclassified to the Regional Manager of the IPCS Services business line (PM–06).

17 The complainant submits there has been no changes in the duties from the time of his deployment to date. The decision to reclassify the position was made for regional operational purposes and not due to changes in the position or duties. He considers himself to have been the incumbent and, as such, should have been appointed to this reclassified position through an internal non-advertised process.

18 Since this was a reclassification and not a new position, the complainant argues that the position should have been staffed using an internal non-advertised process to place him in that position. His failure of the standardized test is not an indication that he was not qualified for the same position that he was deemed qualified to perform at the time of his deployment. Furthermore, this is not at issue since the complaint is not against the outcome of the PM–06 process.

19 In support of this position, the complainant submitted Canada (Attorney General) v. Laidlaw (1997), 127 F.T.R. 305, [1997] F.C.J. No. 410 (T.D.)(Q.L.) where the Federal Court, Trial Division found that an Appeal Board established under the Public Service Employment Act, R.S.C. 1985, c. P-33 (old PSEA) had jurisdiction to determine whether a classified position was new, but could not review the classification decision itself. In that case, since the Appeal Board found that the position was not a new position but rather a reclassification, the respondents, as incumbents already in the position, could be considered for appointment based on individual merit and without a competition in accordance with the old PSEA and the Public Service Employment Regulations, SOR/93-286 (the PSER).

20 It is the complainant’s position that the Tribunal also has jurisdiction to determine whether a position is new or whether it is a reclassified position. The complainant submits that such decisions have a direct correlation to abuse of authority in choosing between an advertised and a non-advertised internal appointment process. As the complainant submits: “The Tribunal must possess the authority to determine such matters that by their very nature are directly tied to staffing actions by the employer.”

21 The complainant also referred to the Supreme Court of Canada decision Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489; S.C.J. No. 78 (QL), in support of his submission that this was not a new position. Le Dain, J. addressed the issue of whether a new position could be created by a change in the functions of an existing position:

[13] (…) Where, however, as in the present case, the change in functions is of such a significant or substantial nature as to call for additional or special qualifications requiring evaluation and therefore what amounts to a new selection for the position, a new position within the meaning of the Act is created. (…) (Q.L.)

22 The complainant also submits that this is not a “new” position within the Public Service Human Resources Management Agency of Canada (PSHRMAC) Guidelines on Reclassification and, therefore, cannot be substantiated.

23 Finally, the complainant submits that this complaint cannot be the subject of a classification grievance as the complainant is not disputing that the position has been properly classified a PM-06. He is complaining about the fact that an advertised process was used rather than a non-advertised process. He argues this is equivalent to the process used historically for reclassifications, namely, the individual merit process based on competence.

24 In conclusion, the complainant submits that this case falls within either or both of two of the categories of abuse identified in Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, namely, an abuse of authority by virtue of an improper result, and/or erroneous view of the law.

B) Respondent’s arguments

25 The respondent submits that the PSEA gives discretion to use an advertised or a non-advertised appointment process and it is open to the respondent to determine the process it will use to staff this position.

26 There is nothing in the PSEA or any policy stating that the use of a non-advertised process is mandatory, whether it is a new position or a reclassification of an existing position. Thus, the distinction between a new or reclassified position is not relevant as there is no mandatory process under the PSEA. Even under the jurisprudence pertaining to the old PSEA, use of an individual merit process for reclassified positions was not mandatory.

27 The Tribunal does not have jurisdiction to determine whether this is a new position or a reclassification as this decision was not made under the PSEA. The respondent submits that there is only one issue in this case, namely, whether it was an abuse of authority not to appoint the complainant to this position.

28 The Regional Management Board decided to advertise the position and other PM-05 and PM-06 positions in the region in order to have a fair, accessible and transparent process to allow more than one person to apply, especially since this was a new position at a higher level. There is no evidence that this decision was made in bad faith, or involved personal favouritism or any other consideration of a similar nature.

29 Furthermore, if the new position had been classified at the PM-06 level from the beginning, the complainant could not have been deployed to it in September 2005 as he was a PM-05.

30 The respondent chose to assess candidates with the standardized test which all candidates had to pass. The complainant failed it and was not considered further in the process. He was not appointed because he failed, not because of the fact it was an advertised process.

31 Even if a non-advertised process had been used, there is nothing to suggest that the complainant should have been the only person considered for appointment.

32 The respondent argues that the complainant’s jurisprudence is not relevant as the notions of relative merit and individual merit under the old PSEA are not equivalent to the notions of advertised and non-advertised processes under the PSEA.

33 The fact that the old PSEA allowed an appointment based on individual merit and without a competition for a reclassification does not dictate whether the respondent should, and had to, have used a non-advertised process under the current PSEA, as the only possible outcome would have been the complainant’s appointment.

34 The complainant failed to satisfy the burden of proving that the circumstances surrounding this appointment process amount to an abuse of authority.

35 The respondent argues that the concept of abuse of authority should be narrowly defined as subsection 2(4) of the PSEA includes bad faith and personal favouritism. The respondent submits that, according to the accepted rules of statutory interpretation of the limited class rule (ejusdem generis), the scope of the term abuse of authority may be limited to a genus or class to which specific listed items, in this case bad faith and personal favouritism, belong.

36 For the limited class rule to apply, there should be a shared characteristic or feature of the specified class items. It also includes the consideration of a fact extraneous to the task at hand such as the influence of a factor that clearly does not make sense in appointing a public servant.

37 The respondent submits that the shared characteristics among the specific terms of bad faith and personal favouritism require discernment by the deputy head as between right and wrong as both are of a very serious nature and represent egregious or very serious degrees of misfeasance. The respondent gives as examples to fit the limited class the terms corruption, extreme lack of care, and personal hostility.

38 The respondent further submits that the test found in Jones and de Villars, Principles of Administrative Law (Toronto, Carswell, 2004) is merely a guideline in reviewing abuse of discretion in the absence of a statutory framework. It should not be the definitive test for determining abuse of authority under the PSEA.

39 The judicial authorities relied on in Jolin v Deputy Head of Service Canada et al., [2007] PSST 0011, that support incorporating the Jones and de Villars test did not deal with abuse of authority. The exercise of discretion under review in those cases was a broad discretion where the enabling statute provided neither guidelines, nor fetters on the exercise of discretion, nor any statutory parameters upon which to base a review. However, abuse of authority in the context of the PSEA is distinguishable as there is a statutory framework.

40 The PSEA no longer requires an eligibility list and there is no requirement to find the most meritorious candidate or consider more than one person. The person appointed must, however, meet the essential qualifications, operational needs and future requirements as established by an assessment board. Section 36 of the PSEA provides that any method may be used by a deputy head to assess the qualifications of a candidate. This is a radical departure from the old PSEA and its prescriptive approach.

41 The complainant is arguing that the process should be static and inflexible and the respondent should use a non-advertised process to appoint him to the position. This is contrary to the intentions of Parliament in the new PSEA.

42 The complainant has failed to prove on a balance of probabilities with clear and cogent evidence that the choice of process and his assessment were influenced by any factor amounting to abuse of authority as contemplated by the PSEA. The burden does not rest with the respondent to show that that the choice of an advertised process is not an abuse of authority.

43 The complaint should be dismissed.

C) Public Service Commission’s arguments

44 The PSC argues that subsection 15(3) allows an employee who has concerns to request the deputy head to investigate the concerns. Although the deputy head does not have to investigate every request, it is a potential mechanism to address a problem in a staffing process. The PSC adds that the PSC’s power to investigate and take corrective action under subsection 67(1) of the PSEA is provided to the deputy head under section 15.

45 The expansive definition based on Jones and de Villars’ categories for abuse of discretion in Principles of Administrative Law, supra, is not required.

46 For an act in a selection process to constitute abuse of authority, it must include disregard of an official duty along with knowledge that the misconduct is likely to injure the complainant. There must be an element of intention such as bad faith or personal favouritism.

D) Respondent’s rebuttal to the Public Service Commission’s arguments on subsection 15(3) of the PSEA

47 The respondent submits that there is no recourse available under subsection 15(3) of the PSEA. The respondentargues that a deputy head is not compelled to investigate any request and there is no right to make such a request. There is a mechanism under section 47 of the PSEA for informal discussion if an employee has concerns about an appointment process. The employee can file a complaint with the Tribunal if this is not satisfactory; it is the only available recourse.

48 The respondent concludes that whether there is recourse under subsection 15(3) of the PSEA is not relevant to the determination of the complaint.

E) Complainant’s reply

49 The complainant replied to the arguments of both the respondent and the PSC.

Reply to the Respondent

50 Once a determination of whether a position is new or reclassified, there are other parameters that need to be considered. The past and current practice in Newfoundland and Labrador has been in all cases to appoint the incumbent when the position is reclassified. There is a level of responsibility on the employer to continue to deal with employees affected by a reclassification in a fair and consistent manner.

51 The choice between an advertised and non-advertised process in combination with the fact that the position is encumbered and was a reclassification means that the respondent, by failing to be consistent with reclassified position precedents and to follow the PSHRMAC guidelines, committed an abuse of authority.

52 The circumstances surrounding the complainant’s position clearly show that it meets the criteria for a reclassified position. Furthermore, he was deemed qualified to continue acting in the position until the appointment and the duties and responsibilities did not change at all during the time the complainant occupied the position.

Reply to the PSC

53 In his reply to the PSC, the complainant submits there was no proposal or recommendation from the respondent that the concerns be reviewed pursuant to sections 15 or 67 of the PSEA by way of an internal investigation rather than a complaint under section 77. It is up to the respondent to take responsibility for how it deals with recourse mechanisms utilized by its employees.

54 In his conclusion, the complainant argues that the fact that he received acting pay is a clear indication and confirmation that he was qualified to perform the duties. The fact that he was unsuccessful in one aspect of a competitive process is not an accurate assessment of his qualifications as manager. The complainant remains fully qualified to perform the duties of the position.

55 The decision not to appoint the complainant constitutes an abuse of authority.

Analysis

Issue I: Was there an abuse of authority in the choice of an internal advertised appointment process to staff the Regional Manager IPCS position?

56 The complainant brought a complaint under paragraph 77(1)(b) of the PSEA. This provision reads as follows:

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

(…)

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

57 Section 33 of the PSEA is clear that the PSC or its delegate, in accordance with subsection 15(1) of the PSEA, may choose an advertised or non-advertised process to make an appointment:

33. In making an appointment, the Commission may use an advertised or non-advertised appointment process.

58 The complainant has the burden of proof on a balance of probabilities as explained in Tibbs, supra. The complainant must therefore demonstrate that the decision to choose an advertised process for the PM–06 position, whether it was a new position or a reclassification of his position, was an abuse of authority.

59 The complainant concedes that he is not suggesting that there were any intentional actions on the part of the respondent in this appointment process. Rather, the complainant argues that there has been either an “improper result” or “erroneous view of the law,” or both, in the choice of appointment process which amounts to abuse of authority as outlined in Tibbs, supra.

60 The mere choice of conducting an advertised or non-advertised process is not abuse of authority in itself as it is specifically allowed in the PSEA. As the Tribunal held in Robbins v. Deputy Head of Service Canada et al., [2006] PSST 0017:

[36] Thus, the complainant cannot allege there is abuse of authority simply because a non-advertised process was chosen. The complainant has to prove that the decision itself to choose a non-advertised process constitutes an abuse of authority.

61 Similarly, the complainant has to prove, on a balance of probabilities, that he was not appointed or proposed for appointment by reason of an abuse of authority by the respondent in choosing between an advertised and a non-advertised internal appointment process.

62 The respondent submits that an advertised process was chosen in order to give the opportunity to more than one person. As stated above in the Background section, the decision to establish the Regional Manager position was made on February 14, 2006. The Regional Management Board informed employees on March 1 that if the position was classified at the PM–06 level, it would be staffed from the pool of candidates resulting from the PM–06 advertised process that was underway.

63 The Job Opportunity Advertisement for this selection process was posted in February, 2006 to establish a pool of candidates from which the respondent could appoint. The complainant submitted his cover letter and résumé on February 12, 2006. The decision to appoint from a pool of candidates was made prior to the results of the classification process and prior to the complainant’s standardized test results. These actions do not demonstrate any abuse of authority, to the contrary.

64 The respondent argued that there is nothing in the PSEA or any policy stating that the use of a non-advertised process is mandatory, whether it is a new position or a reclassification of an existing position. Thus, the distinction between a new or reclassified position is not relevant to the determination of whether or not there has been an abuse of authority in choosing between an internal advertised and an internal non-advertised appointment process.

65 The Tribunal agrees with the respondent’s submissions on this issue. There is nothing in either the PSEA or the PSER which requires a deputy head to utilize a particular selection process depending on whether the position at issue is either a new or reclassified position. On the contrary, section 33 of the PSEA clearly provides that the deputy head has the discretion to use an advertised or a non-advertised appointment process.

66 Furthermore, the jurisprudence submitted by the complainant is not applicable or relevant to determine this issue as it refers to the old PSEA. The PSEA makes no distinction between a new or reclassified position and there is no mandatory use of either an advertised or non-advertised process.

67 Therefore, the complainant has not met the burden of proof as there is no evidence of abuse of authority when the respondent chose to advertise the position.

Issue II: Was there an abuse of authority in the decision not to appoint the complainant to the position?

68 Section 36 of the PSEA reads as follows:

36. In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

69 As the Tribunal has stated in Visca v. Deputy Minister of Justice et al., [2007] PSST 0024:

[51] Managers have broad discretion under section 36 of the PSEA to select and use assessment methods to determine whether a candidate meets the established qualifications for a position.

70 In the case at hand, the respondent chose to assess candidates with the standardized test. The Tribunal is aware that the PSC standardized tests are regularly used by departments in assessing candidates in an appointment process.

71 In order to be appointed to a position, any candidate must be successful in the assessment process chosen by a department irrespective of whether the position is considered as a new or reclassified position or whether it is an advertised or non-advertised process. Unfortunately, the complainant failed the standardized test and was no longer considered in the PM-06 process. The Tribunal finds that it was his failure to meet the merit criteria based on the assessment method chosen by the respondent that led to him not being considered for appointment or proposed for appointment, and not the choice of appointment process itself.

72 Accordingly, the Tribunal finds that the complainant has failed to prove on a balance of probabilities that there was an abuse of authority on the basis of an improper result.

73 Similarly, the complainant has not proven abuse of authority based on an erroneous view of the law. By his own admission in his allegations, the complainant concedes that it may not have been an erroneous view of the law. Guidelines can be a form of law: Bell Canada v. Canadian Telephone Employee Assn., [2003] 1 S.C.R. 884, [2003] S.C.J. No. 36 (Q.L.). However, the PSHRMAC Guidelines have not been issued under the PSEA or regulations under the PSEA and are, therefore, not a form of law akin to regulations. As such, even if the respondent misinterpreted these guidelines, which is not necessary to decide for the disposition of this case, such a misinterpretation does not equate to an erroneous view of the law as to amount to an abuse of authority. The Tribunal finds that the respondent has not contravened the provisions of the PSEA in this appointment process.

74 In conclusion, the complainant has failed to prove on a balance of probabilities that the respondent abused her authority by choosing between an advertised and a non-advertised internal appointment process.

75 Since the Tribunal dismisses the complaint as there is no evidence of abuse of authority, there is no need to address the respondent’s and the PSC’s other arguments.

Decision

76 For all these reasons, the complaint is dismissed.

Sonia Gaal

Vice Chair

Parties of Record

Tribunal File:

2006-0114

Style of Cause:

Robert Kane and the Deputy Head of Service Canada as part of the Department of Human Resources and Social Development et al.

Hearing:

Paper hearing

Date of Reasons:

August 3, 2007

Appearances:

For the complainant:

Brian Richey

For the respondent:

Martin Desmeules

For the Public
Service Commission:

John Unrau