FPSLREB Decisions

Reasons for Decision

Introduction

1Godwin Jogarajah, the complainant, was employed for a specified term by the Public Health Agency of Canada (the PHAC) when he applied in an internal advertised appointment process to staff one Administrative Officer position at the AS-02 group and level within the PHAC. His complaints concern the marking scheme that was used in the assessment process, as well as an allegation that the assessment board was inappropriately influenced by his former manager.

Preliminary Matters

2 On January 8, 2007, two Notifications of Appointment or Proposal of Appointment were issued by the PHAC in respect of this appointment process. The first Notification was for the appointment or proposed appointment of Sobia Ali.

3 The Chief Public Health Officer of the Public Health Agency of Canada, the respondent, explained that this notice was issued in error since this person was not, in fact, proposed for appointment. The notification was cancelled and the correct one issued on the same day, naming Cyndy Elasigue as the person appointed or proposed for appointment. The respondent submits that complaint 2007-0054 concerning the appointment or proposed appointment of Sobia Ali, is a nullity as it relates to an invalid notice.

4 The complainant did not submit arguments on this matter.

5 Only one appointment process was conducted and only one appointment was ultimately made or proposed as a result. The Tribunal determined in Hagerty v. President of the Canada Border Services Agency et al., [2007] PSST 0036, that each notification of one or more appointments or proposed appointments provides a corresponding right to file a complaint to the Tribunal. However, in this case, the initial notice was issued in error and was cancelled immediately. The correct notice was issued on the same day. The Tribunal finds that, under these circumstances, complaint 2007‑0054 is moot and is dismissed. Therefore, these reasons for decision will deal with complaint number 2007-0040 which is related to the appointment of Cyndy Elasigue.

Background

6 Mr. Jogarajah was employed for a specified term period reporting to Ms. Tracy White, when he applied to the AS-02 appointment process in December, 2005. In May, 2006, his term employment was terminated.

7 There is an outstanding grievance with respect to the complainant’s termination. However, this is not a matter within the jurisdiction of this Tribunal.

8 The complainant was initially eliminated from the appointment process based on an assessment of his application against the essential qualifications that were used for screening purposes: he was screened-out. Further to his request for an informal discussion, his application was reconsidered and he was screened-in to the process.

9 For the remaining essential qualifications, candidates were assessed by a written test, an interview and references. The complainant failed to meet one of the essential qualifications, namely: ability to manage competing priorities while ensuring appropriate actions. As a result he did not qualify for the position and was not appointed or proposed for appointment.

10 The complainant initially filed four allegations against the respondent. At the beginning of the hearing, the complainant informed the Tribunal that he would proceed with only two of his allegations, namely:

• A mark of 50% is required to pass individual criteria, and yet an overall mark of 60% in each category is required to achieve an overall pass mark. The additional requirement for an overall 60% mark is not tied to merit and is therefore a frivolous use of the marking scheme.
• A former manager of the complainant attempted to influence the assessment board, amounting to inappropriate interference in the appointment process.

Issues

11 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in establishing the marking scheme for this appointment process?
2. Was the assessment board inappropriately influenced through outside interference and, if so, was it an abuse of authority?

Summary of Relevant Evidence

12 Mr. Jogarajah testified. Ms. Michelle Halket, Acting Manager of Administrative Services, PHAC and Ms. Tracy White, Regional Manager, Administrative Services, Public Works and Government Services Canada were also called by the complainant to testify.

13 The complainant did not provide any direct testimony concerning the marking scheme used in the appointment process. Under cross-examination, he agreed that before he applied to this process, he had read and understood the Job Opportunity Advertisement, specifically “Other Information Note number 6”, which reads as follows: “Candidates must successfully achieve an overall aggregate score in each of the related factors”.

14 Ms. Marilyn Tate, Acting Program Manager, Healthy Child Development, PHAC, was the chair of the assessment board. She testified that she had used aggregate scoring previously and was familiar with this method of scoring. Ms. Tate explained that to qualify, candidates had to pass each essential qualification. Accordingly, 50 percent was set as the pass mark for each individual qualification. She stated that she was looking for stronger candidates and therefore, in addition to passing, she required a higher aggregate score for each category of qualifications, namely; knowledge, abilities and personal suitability. The required aggregate score was set at 60 percent.

15 Ms. Tate testified that the complainant scored less than 50 percent on the ability to manage competing priorities while ensuring appropriate actions. Since the complainant failed to meet one of the essential qualifications, he could not be considered qualified for the position. As a result the requirement that he also meet the aggregate score of 60 percent was irrelevant.

16 A series of electronic messages dated from June 18 to June 21, 2006 was entered into evidence. The first messages are between the complainant and Ms. Tate. They concern the complainant’s initial elimination from the process based on the screening criteria, and arrangements for an informal discussion. The subsequent messages are between Ms. Tate, Ms. Halket and Ms. White. They concern the complainant’s availability for an informal discussion and planned dates for the written examination. The complainant was not a recipient of these latter messages.

17 The complainant referred to a message from Ms. White to Ms. Halket and Ms. Tate, in which Ms. White suggested that “in anticipation of this situation you may wish to discuss this with Bert or Laurent”. The complainant explained that his concerns are that he was not copied, and that Bert is an employee in Human Resources (HR) in the PHAC and Laurent is on contract with HR in the PHAC, in the labour relations field.

18 Under cross-examination, the complainant indicated that since he has an outstanding labour grievance, he is not comfortable with HR personnel who are involved with grievances being involved in a staffing process. He agreed, however, that it would be reasonable for HR to be involved in staffing and that it would not be a problem for Ms. Tate to seek advice from either of the HR people. The complainant stated that his concern was Ms. White’s involvement since she was not on the assessment board, and he believes she may have influenced the assessment board against him.

19 The complainant acknowledged that he did not know if Ms. White’s suggestion to contact HR personnel was acted upon. He further acknowledged that he was, in fact, re-admitted to the staffing process and was assessed. He agreed that he named Ms. White as a reference for this appointment process. He also acknowledged that in September 2006, he asked Ms. White if she would provide a reference for him in his search for other positions.

20 Under cross-examination, Ms. Halket testified that Ms. Tate sent her an electronic message concerning possible dates for an informal discussion with the complainant. She responded with her concerns about the complainant’s availability for the testing dates, which had already been set. She explained that she was uncertain as to how to proceed and how to ensure fairness if someone were to be unavailable on the established testing dates. Ms. Tate’s message had been copied to Ms. White and Ms. Halket replied to all, thereby also copying Ms. White.

21 Ms. Halket explained that it was not uncommon to consult Ms. White on staffing matters since she has conducted several appointment processes and HR was not always available. She testified that, following Ms. White’s suggestion, she and Ms. Tate discussed alternate dates to accommodate the complainant. Ms. Halket stated that Ms. White did not influence her decisions as an assessment board member.

22 Ms. White testified that her understanding of Ms. Halket’s message was that she was concerned about the complainant’s availability, as well as the impact on the appointment process resulting from potential scheduling issues. She explained that, if scheduling problems were anticipated, the departmental HR Advisor or the HR Consultant would be sources of advice; which was why she wrote the message she did. Ms. White testified that she was not contacted by the assessment board members further to her message and was not otherwise involved with the appointment process.

23 Ms. Tate testified that she copied Ms. White on the electronic message concerning scheduling the complainant’s informal discussion for several reasons: informal discussion was new; Ms. White was involved in a number of HR activities and had taken a lot of training; Ms. White worked on the same floor and was usually available; and, she often asked for Ms. White’s advice on HR matters. She stated that she understood Ms. White’s message to be a suggestion to talk to HR. She testified that she did not contact HR because the scheduling concern was resolved when the complainant provided further written information on his qualifications which was accepted. It was therefore not necessary to schedule a meeting for informal discussion. Ms. Tate testified that Ms. White was not a member of the assessment board and that she did not attempt to influence her about the complainant or any other candidate.

24 Ms. Tate testified about the development and application of the assessment tools. She also explained that the assessment board scored candidates’ interviews as a group and reached consensus on the marks.

Arguments of the parties

25 The complainant argues that this appointment process lacks fairness and transparency. He submits that the process was used to prevent him from being re-employed in the public service following the termination of his term employment, which is an abuse of authority.

26 The respondent argues that there is no evidence of abuse of authority related to either the marking scheme or the series of electronic messages, as alleged by the complainant. The respondent submits that the evidence shows that while Ms. White’s input on scheduling concerns was welcomed, she had no influence on the assessment board. The respondent provided written submissions on abuse of authority.

27 The Public Service Commission did not appear at the hearing, but provided its submissions on abuse of authority in writing.

Analysis

Issue I: Did the respondent abuse its authority in establishing the marking scheme for this appointment process?

28 The Tribunal has established in several decisions that complainants must prove abuse of authority on a balance of probabilities. Convincing evidence is necessary to support a finding of abuse of authority. See Tibbs v. Deputy minister of National Defence et al., [2006] PSST 0008, and Liang v. President of the Canadian Border Service Agency, [2007] PSST 0033.

29 Based on the evidence, candidates in this appointment process had to obtain 50 percent on each individual essential qualification. In addition, they had to achieve an overall aggregate score of 60 percent for each category of qualification, namely knowledge, abilities and personal suitability.

30 In his written allegations the complainant submits that the additional aggregate score requirement is not merit-related and therefore is frivolous. The complainant did not tender any evidence, nor did he present any argument on this issue.

31 The only evidence related to this matter was provided by the respondent. The Tribunal accepts Ms. Tate’s uncontested testimony that she used this scoring method because she wanted candidates who more than met the minimum requirement of passing each essential qualification.

32 The Tribunal found in Visca v. Deputy Minister of Justice et al., [2007] PSST 0024, that subsection 30(2) of the PSEA gives broad discretion to managers to establish the necessary qualifications for the position, and to choose the person who not only meets the essential qualifications, but is the right fit.

33 The Tribunal also explained in Visca that section 36 of the PSEA provides those with staffing authority broad discretion to choose and use assessment methods to determine if the person meets the established qualifications. Furthermore, weighting the merit criteria and using cut-off scores are examples of methods that fall within the broad discretion given to managers.

34 Similarly, setting an aggregate passing score for each category of qualifications is within the broad discretion of an assessment board. As the Tribunal established in Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011, this discretion is not absolute. However, for the Tribunal to find that there was abuse of authority in the selection of the assessment methods, the complainant must prove that the assessment method has no connection to the qualifications or does not allow those qualifications to be assessed, that the methods are unreasonable or discriminatory, or that the result is unfair.

35 In this case, the complainant has not established how this scoring method constitutes an abuse of authority. There is no evidence that the result is unfair or that the assessment method is unreasonable or discriminatory.

36 The Tribunal is satisfied that the assessment board was well within its discretion to determine a pass mark of 50 percent for each individual essential qualification and an aggregate pass mark of 60 percent for each category of qualifications. There is no evidence that the respondent abused its authority in establishing the marking scheme as it did, for this appointment process.

Issue II: Was the assessment board inappropriately influenced through outside interference and, if so, was it an abuse of authority?

37 Based on the evidence, the Tribunal finds the following facts: Ms. White was the complainant’s supervisor when he was a term employee with the PHAC; Ms. White was not a member of the assessment board; Ms. Tate and Ms. Halket copied Ms. White on their electronic correspondence related to concerns about scheduling an informal discussion with the complainant and a possible impact on the already scheduled written test; Ms. White suggested contacting HR on the issue.

38 The complainant submits that it was inappropriate for Ms. White to be copied on the correspondence because she was not involved in the appointment process. He believes that her suggestion to contact HR was an attempt by Ms. White to influence the assessment board against him.

39 Ms. Tate and Ms. Halket both explained why they sought Ms. White’s advice. The Tribunal accepts their reasoning as well as their testimony that Ms. White did not attempt or succeed in influencing them about any candidate in the appointment process.

40 The complainant has not presented any clear, convincing evidence to support his allegation that the assessment board was inappropriately influenced.

Decision

41 For the reasons set out above, the allegations of abuse of authority cannot be substantiated on any of the grounds alleged by the complainant. The complaints are dismissed.

Merri Beattie

Member

Parties of Record

Tribunal Files:

2007-0040 & 0054

Style of Cause:

Godwin Jogarajah and the Chief Public Health Officer of the Public Health Agency of Canada et al.

Hearing:

December 11-12, 2007
Toronto, Ontario

Date of Reasons:

June 17, 2008

Appearances:

For the complainant:

Elizabeth Gillelan

For the respondent:

Karen Clifford

For the Public
Service Commission:

John Unrau