FPSLREB Decisions

Reasons for Decision

Introduction

1 Ms. Marilyn King filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under paragraph 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA). The complainant applied for the position of Acting Service Delivery Manager (process number 06-CSD-IA-NFLD-SC-01) (PM-05) in the Department of Human Resources and Social Development - Service Canada (Service Canada).

2 The complainant alleges abuse of authority by the respondent, the Deputy Head of Service Canada, by failing to properly assess her qualifications. Specifically, the complainant alleges the respondent abused its authority when it used the top down method during the candidates’ assessments to further reduce the number of candidates to be interviewed.

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’ relevant submissions and documents on file which were reviewed in detail and are summarized below.

Background

4 In January 2006, a Job Opportunity Advertisement was posted on Publiservice for indeterminate and acting positions of Manager (PM-05) with a closing date of February 14, 2006. The Statement of Merit Criteria (the SOMC) and conditions of employment were also posted on Publiservice.

5 The SOMC stated that one of the essential qualifications was “Ability to manage” which would be assessed via the Managerial In-Basket Exercise 810 (Exercise 810). Other essential qualifications would be assessed by written submissions, interviews and reference checks.

6 Prior to the exam, the assessment board had set a passing mark of 16/25 for Exercise 810.

7 A total of 74 applications were received for this process including the complainant’s.

8 On March 10, the complainant was informed by email that she had been screened into the process. She was informed that she would be writing Exercise 810 on March 22. The email further indicated that “For the purpose of this competition we will use a pass mark of 16 for the PM-05 and 18 for the PM-06 but we will use a top down selection process” (emphasis was added by Gloria Edwards, Human Resources Assistant, author of the email).

9 On May 1, the complainant was advised she achieved a mark of 17/25, a “Pass”, on Exercise 810. The letter mentioned that “The selection committee has determined, through a top down selection, they will be further assessing those candidates who achieved a mark of 18.” It also informed the complainant she could request a “rescoring“of her test, which she did, but her mark was not changed.

10 There were 22 candidates who passed Exercise 810 for the PM-05 process but only 15 candidates obtained a mark of 18/25 or higher and were interviewed.

11 On May 8, the complainant sent an email to Gloria Edwards, inquiring whether further assessment of candidates who had achieved a mark of 18/25 was applicable to the PM-05 process given that she had met the pass mark of 16/25 in Exercise 810.

12 Ms. Edwards replied on May 9 informing the complainant that the assessment board determined through a top down method that they would be further assessing the candidates who achieved a mark of 18/25 for the PM-05. Those who achieved a mark below 18/25 would not get an interview.

13 The Notification regarding the acting appointment for the position was posted on Publiservice on April 18, 2007.

Issue

14 The Tribunal must determine the following issue:

Did the respondent abuse its authority when it used a top down method during the candidates’ assessments to further reduce the number of candidates to be interviewed?

Arguments of the parties

A) Complainant’s arguments

15 The respondent established the essential qualifications in accordance with paragraph 30(2)(a) of the PSEA and is bound to assess the candidates’ qualifications.

16 The process used by the assessment board to determine which candidates would be assessed beyond the Exercise 810 was unfair to the complainant and did not follow the qualifications stipulated in the SOMC to be assessed.

17 The complainant is not challenging the validity or applicability of Exercise 810 to the appointment process. She is challenging the assessment board’s method in choosing to set a pass mark of 16/25 points for the Exercise 810 and then changing this pass mark to 18/25 points to continue further in the process.

18 Since the complainant achieved the 17/25 mark for the PM-05 position and was successful in meeting the “Ability to manage” qualification, assessed by Exercise 810, she should have been assessed further into the process on the remaining qualifications.

19 Although the candidates were advised that the top down method would be used, they were not told which cut-off score would be used for the interviews. Since the 18/25 pass mark was established after all the candidates’ scores were known, the complainant presumes it was set based on who achieved that score or higher.

20 According to the complainant, the assessment board, by using the top down method, is using a means of relative merit. The PSEA no longer recognizes the relative merit selection process.

21 There is an obligation on the assessment board to continue to assess candidates until such time as the candidate is unsuccessful in a particular qualification. To cease consideration of a successful candidate for the purpose of reducing the number of candidates violates the intent of section 36 of the PSEA.

22 The complainant does not dispute the fact that the respondent conducted the assessment in several stages nor the use of Exercise 810. She submits that it is when the assessment board decided to reduce the workload by only interviewing successful candidates with a mark of 18/25 and above that there is abuse of authority. This decision by itself resulted in a process that failed to allow the qualifications on the SOMC to be assessed.

23 The complainant submits she has not failed any essential qualification. The respondent cannot conclude that the complainant does not meet the essential qualifications without continuing the assessment as she passed Exercise 810. Once she is assessed further, the respondent can determine that she is or is not qualified, thereby meeting the requirement of section 30 of the PSEA.

24 The respondent acted on inadequate material in concluding that the complainant is not qualified and contravened subsection 30(2)(a) of the PSEA. Removing a candidate from the process for reasons other than the fact that they were unsuccessful is a violation of the intent of the PSEA and an abuse of authority.

B) Respondent’s arguments

25 The respondent submits that the onus is on the complainant to establish that the decision to interview those who had a mark of 18/25 or above on Exercise 810 was an abuse of authority.

26 Subsection 2(4) of the PSEA provides that abuse of authority includes bad faith and personal favouritism that both require discernment by the deputy head as between right and wrong.

27 The respondent argues that the complainant has not put forward any information that could lead to a finding of abuse of authority by the assessment board in deciding to establish a cut-off score to limit the number of candidates to be interviewed. There is no evidence that this decision was made in bad faith or as a result of personal favouritism.

28 The respondent submits it was within the assessment board’s discretion to manage the appointment process. Due to the number of candidates for the PM-05 process, the assessment board determined that it would only interview a portion of those candidates who passed Exercise 810. It used a top down method of assessment whereby only those who had achieved a mark of 18/25 or higher would be interviewed. The board determined that 15 people was a sufficient number of candidates to interview in order for them to meet their current and anticipatory needs.

29 The assessment board was under no obligation to assess each candidate on every qualification as supported by subsection 30(4) of the PSEA which allows the deputy head to consider only one person for an appointment on the basis of merit.

30 The candidates were assessed in the same manner against the same merit criteria. The cut-off score was applied consistently to all candidates. This is a factor to be considered in determining whether there has been an abuse of authority.

31 The respondent submits that although the complainant met the minimum pass mark for Exercise 810, she did not meet the minimum cut-off score to permit her to be considered further in the appointment process. The assessment board’s decision to establish a cut-off score was based on the information gathered from the assessment tools used, the essential qualifications and their consideration of the degree to which the candidates met each qualification. This was reasonable and appropriate based on the information before them.

32 The complainant has not challenged the qualifications of the appointee nor alleged that her appointment was tainted by bad faith or personal favouritism therefore the revocation of the appointment is not appropriate in this case.

33 The respondent argues that the decision to require candidates to meet a threshold score on Exercise 810 to be further assessed cannot be characterised as an error, serious omission or improper conduct tantamount to abuse of authority.

34 The complainant has failed to meet the burden as required under section 77 of the PSEA. The complaint should be dismissed.

C) Public Service Commission’s arguments

35 The Public Service Commission (the PSC) submits that for an act in an appointment process to constitute abuse of authority, there must be an element of intention such as bad faith or personal favouritism.

36 The assessment board’s decision to limit interviews was explained by the respondent. The PSC argues that there is a large discretion provided in section 36 of the PSEA to manage the assessment process.

D) Complainant’s reply to the Respondent and the PSC

I) Reply to the Respondent

37 In reply to the respondent, the complainant reiterates that introducing a form of assessment screening to reduce the number of candidates for the interview based on anything other than a failure by a candidate to succeed on a qualification is inadvertent negligence and an abuse of authority.

38 Furthermore, setting cut-off scores in order to reduce the number of candidates is tantamount to “moving the bar” and gives the employer power to control who may or may not be considered successful in the process. This is not the intent of section 36 of the PSEA. There are no provisions that allow the employer to select which employees will be assessed on each essential qualification. Finally, a top down method is no longer appropriate within section 36 of the PSEA.

II) Reply to the PSC

39 The discretionary authority within section 36 of the PSEA does not mean that an assessment board can arbitrarily create new cut-off scores during the appointment process. This could result in an assessment board knowingly eliminating a candidate from the process without that person being unsuccessful.

Analysis

Issue: Did the respondent abuse its authority when it used a top down method during the candidates’ assessments to further reduce the number of candidates to be interviewed?

40 The complainant does not challenge the use of the Exercise 810 as an assessment tool. Rather, she argues that using her result for Exercise 810 to eliminate her from the next step of the assessment process, i.e. the interview, was an abuse of authority as she had passed Exercise 810. As a result of her elimination, she was not fully assessed for all the essential qualifications.

41 The Tribunal has stated in many decisions that a complainant has the onus toprove abuse of authority on a balance of probabilities. The complainant must therefore demonstrate that the respondent abused its authority under subsection 30(2) of the PSEA when it eliminated her from the assessment process.

42 Subsection 30(2) of the PSEA reads as follows:

30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.

(2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and

(…)

43 The complainant has strongly argued that the assessment board, by using the top down method, used a means of relative merit which is no longer recognized by the PSEA.

44 In Visca v. Deputy Minister of Justice et al., [2007] PSST 0024, the Tribunal found that considerable discretion is given to choose amongst the candidates who meet the essential qualifications. The Tribunal indicated, in this decision, that the practice of ranking should be discouraged although a manager is not precluded from doing so:

[44] (…) The Tribunal believes that the former practice of ranking candidates should be discouraged as it does not reflect the spirit of the PSEA. However, a manager is not precluded from doing so and, moreover, ranking does not in and of itself constitute an abuse of authority. When ranking is used to select the successful candidates, the Tribunal will review its application to determine whether or not there was an abuse of authority in the selection process.

45 Furthermore, the use of cut-off scores has been recognized by the Tribunal, also in Visca, as a valid assessment method falling under the PSEA:

[43] Weighting the merit criteria and using cut-off scores based on the performance of the candidates are methods that fall within the broad discretion given to managers under the PSEA. (…)

46 As stated above in paragraph 8, the complainant was aware as of March 10, 2006 in the email informing her she had been screened in that the respondent would use a top down method which could further reduce the number of candidates. The email indicates that the assessment board willuse a pass mark of 16/25 for the PM-05 position; it also states: “(…) but we will use a top down selection process (…)”. The Tribunal finds that the candidates were well aware there was a further step before being offered an interview, this step being to meet the cut-off score of the top down method.

47 The Tribunal believes that the email of March 10 could have been more specific and provided additional information on the top down method. For example, it could have indicated that the passing mark for the PM-05 position was not a guarantee sufficient for the interview process. However, candidates were alerted in advance that the top down method would be used.

48 Proceeding in this manner may lead to allegations of abuse of authority. Complaints would be less likely by informing the candidates up front of specific cut-off scores for further steps in the assessment process. The process would be more transparent and complaints of this nature may be avoided.

49 As for the rationale for using the top down method, the respondent explained in an email on May 28, 2007 that the results of Exercise 810 provided a sufficiently large number of candidates with a mark of 18/25 or over to meet the department’s current and anticipated needs. The respondent explained its decision to further eliminate seven candidates as there were 15 candidates to interview. In its opinion, there was no need to interview all the candidates who had passed Exercise 810.

50 The respondent’s decision was not founded on preference but on reason and facts proven before the Tribunal. At the outset, the respondent made the decision to use a top down method and made its intent clear to the candidates. The respondent did not prefer specific individuals. It made this decision in order to reduce the number of candidates to be further assessed. These facts are unchallenged by the complainant.

51 Although the complainant argues that the top down method may lead to eliminating specific candidates once their results are known, she did not provide any evidence of this or allegation of personal favouritism or bias against herself.

52 The complainant does not dispute the conduct of an assessment in several stages but submits that it is improper to stop assessing a candidate who has not failed an essential qualification.

53 In Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011, the Tribunal found that assessments of candidates under section 36 of the PSEA can be done in several stages:

[88] The respondent may conduct an assessment in several stages. Requiring successful completion of a particular step in the assessment process does not necessarily imply abuse of authority. In the present case, there is nothing improper about this approach.

54 The respondent chose to assess the candidates in stages with required passing marks to move to the next step. After being screened in, the first step of the appointment process was to pass Exercise 810 with at least a 16/25 mark. The complainant successfully passed this step.

55 The second step was to apply the top down method which required at least an 18/25 mark. Unfortunately, the complainant was not selected in the top-down exercise for further assessment.

56 All candidates were assessed in the same manner against the merit criteria. The respondent has provided a rational explanation to support the use of the top down method for this staffing process. The use of cut-off scores based on the performance of the candidates such as in the top down method are methods that fall within the broad discretion given to managers under the PSEA.

57 The Tribunal therefore finds that there is no abuse of authority in using a top down method during the candidates’ assessments to further reduce the number of candidates to be interviewed.

Decision

58 For these reasons, the complaint is dismissed.

Sonia Gaal

Vice-Chair

Parties of Record

Tribunal File:

2007-0188

Style of Cause:

Marilyn King and the Deputy Head of Service Canada, as part of the Department of Human Resources and Social Development Canada et al.

Hearing:

Paper hearing

Date of Reasons:

February 27, 2008

Appearances:

For the complainant:

Brian Richey

For the respondent:

Lesa Brown

For the Public
Service Commission:

John Unrau