FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Kevin Feeney, is a member of the Canadian Forces who works at the Shearwater Fire Hall in Halifax. He was screened out of an internal advertised appointment process for a Fire Prevention Officer (FR-02) position.

2 The complainant alleges that the assessment board abused its authority when it eliminated him from the process because he did not possess a Class 3 Nova Scotia driver’s licence with air brake endorsement (NS DL Class 3) at the time of his application. He claims that the requirement of a current NS DL Class 3 as an essential qualification constitutes an abuse of authority by the respondent, the Deputy Minister of the Department of National Defence (DND).

3 In accordance with subsection 99(3) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (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 A job opportunity advertisement (07-DND-IA-HALFX-059056) was posted on Publiservice with the purpose of creating a pool of candidates for staffing Fire Prevention Officer (FR-02) positions. According to the advertisement, the area of selection for the appointment process was:

Employees of the Department of National Defence, who occupy positions in DND Fire Services, Base Operations, CFB Halifax, and members of the Canadian Forces with a home posting in DND Fire Services, Base Operations, Halifax.

5 Candidates submitted their applications online to the respondent. The closing date was February 28, 2007; the complainant submitted his application on February 26.

6 The relevant qualification stipulated on the job opportunity advertisement was:

ESSENTIAL SCREENING QUALIFICATIONS:

** Applicants must clearly demonstrate on their application that they meet all of the following essential screening criteria, and are within the area of selection. Failure to do so may result in the rejection of your application.**

(…)

Possession of a current Class 3 NS driver’s license with air brake endorsement.

(…)

7 In another box called “Conditions of Employment,” the respondent listed the following condition: “Ability to obtain and maintain the departmental driver’s license DND 404” (DND 404).

8 The complainant’s cover letter dated February 25, stated: “I am in possession of (...), a valid Nova Scotia drivers license with air brakes and DND 404’S Class G5 (all FF vehicles) as specified in your selection process.”

9 The DND Transportation Manual (DND Manual) specifies the licensing requirements for civilian employees and members of the Canadian Forces who are required to operate DND vehicles as part of their duties, namely the DND 404.

10 On March 5, Jennifer O’Toole, Human Resources Officer, wrote to the complainant to inform him that he had not provided proof that he possessed a current NS DL Class 3. The complainant was further informed that a photocopy of the front and back of his NS DL Class 3 would suffice. The complainant was given until March 8 to provide this documentation.

11 The complainant’s wife sent an email to Ms. O’Toole on the afternoon of March 5. She informed Ms. O’Toole that, as her husband was away on tasking, he could not be reached until late in the day on March 9. She stated: “I believe he has his Class 3N license, but am unable to fax that information to you, as he has his driver’s license with him.”

12 On March 6, Ms. O’Toole wrote to the complainant to inform him that he met the identified screening criteria. On March 9, she then emailed the complainant to invite him to attend a written examination. He wrote the exam on March 19.

13 On March 19, the complainant provided Ms. O’Toole with a photocopy of his NS DL Class 3 which shows that the complainant’s NS DL Class 3 was issued on March 15, which is after the closing date of the appointment process.

14 On March 22, Ms. O’Toole provided written confirmation to the complainant that, since he did not possess a current NS DL Class 3 as at the closing date of the appointment process, he was therefore eliminated from the process.

15 The complainant filed a complaint to the Tribunal on June 14, 2007 under paragraph 77(1)(a) of the PSEA.

Issues

16 To resolve this complaint, the Tribunal must determine the following issues:

1. Did the respondent abuse its authority when it required a current NS DL Class 3 as an essential qualification?
2. Did the respondent abuse its authority when it screened out the complainant because he obtained his NS DL Class 3 after the appointment process closing date?

Analysis

Issue I: Did the respondent abuse its authority when it required a current NS DL Class 3 as an essential qualification?

Arguments of the parties

A) Complainant’s arguments

17 The complainant submits that the DND Manual does not require a member of the Canadian Forces to possess a provincial driver’s licence to operate DND vehicles, but they must possess a valid DND 404 licence issued by DND.

18 The complainant referred to a previous 2006 posting for a FR-01 position in Halifax where the possession of a valid NS DL Class 3 was not an essential qualification but rather a condition of employment along with the DND 404. In his opinion, this set a precedent as it “gave the impression that all competitions would maintain the same standards.” He believes that the respondent should require the NS DL Class 3 as a condition of employment, and not as an essential qualification.

19 He also referred to a recent job opportunity advertisement for a FR-02 position in British Columbia, which closed on February 15, 2008. This opportunity required either a provincial driver’s licence or the DND 404 as an essential qualification. The complainant submits that both the DND 404 and the NS DL Class 3 should be considered equally, as they were in the recent B.C. process.

20 The complainant submits that this appointment process treated members of the Canadian Forces differently than DND employees which, according to him, is discrimination. Since the NS DL Class 3 is an essential qualification, the military must possess it at the time of applying for the position. He submits that members of the Canadian Forces should have the same opportunity that DND employees have where the DND 404 is a condition of employment; therefore, DND employees can acquire the DND 404 while they are in the position. Similarly, military members should be permitted to obtain a NS DL Class 3 when the manager is in a position to make an offer of employment.

21 The complainant further argues that to maintain a NS DL Class 3, there is an additional expense every two years and there is a medical examination, which is not a requirement of the DND 404. He possesses a DND 404 which, according to him, far exceeds the requirements of the NS DL Class 3.

22 The complainant submits that, due to an operational commitment, he was unable to schedule a test to obtain his NS DL Class 3 before the appointment process closing date. The complainant argues that members of the Shearwater Fire Hall are at the mercy of the DND Mobile Support Equipment instructors to schedule testing for the NS DL Class 3. He obtained a NS DL Class 3 at the earliest possible scheduling date.

23 In addition, the complainant argues that two DND employees were appointed from the Dockyard Fire Department; they already possessed a NS DL Class 3. In his opinion, management knew that the Shearwater Fire Department is operated strictly by military personnel who require only the DND 404 to operate emergency vehicles. According to the complainant, the requirement for a current NS DL Class 3 was set by the Dockyard Fire Chief to benefit specific candidates from the Dockyard Fire Department. Again, according to the complainant, only civilian personnel work at the Dockyard Fire Department.

24 The complainant also submits that there is no corresponding work description for the FR-02 position. The work description that was provided to him by the respondent is outdated. More importantly, there is nothing in this work description to indicate that operating a vehicle is a requirement.

B) Respondent’s arguments

25 The respondent argues that abuse of authority should be limited to bad faith, personal favouritism or similar misfeasance. It is of the view that the terms share the common feature of requiring discernment as between right and wrong, and are of a serious nature. The respondent provided jurisprudence and excerpts from doctrine in support of its position.

26 The respondent agrees that members of the Canadian Forces do not require a provincial driver’s licence to operate DND vehicles, and must possess the DND 404. However, the respondent states that it is important to note that the position which the complainant was applying for was a civilian firefighter position. The respondent submits that civilian employees who operate DND vehicles are required to possess a provincial driver’s licence and a DND 404.

27 According to the respondent, there is an operational reason for requiring civilian firefighters to possess a valid provincial driver’s license. The DND Manual, Chapter 5, paragraph 7, “DND Driver Permit Policy,” states:

7. All persons who operate a DND vehicle shall have a current DND Driver/Operator Proficiency record in FMS, which lists the types of vehicles the person is authorized to drive/operate if current. The Defensive Driving Course is mandatory for all persons who drive/operate a DND vehicle on a road or traverse a road. In addition:

1. DND employees (including contractors) must have a valid unrestricted Provincial Driver’s License holding a qualification on a vehicle equivalent to the DND vehicle to be driven/operated.
2. Military members do not require a civilian driver’s licence to operate DND vehicles or DND rented vehicles to perform DND tasks (…)

(emphasis in original)

28 In addition, Chapter 5, paragraph 16 of the DND Manual titled “Issuance of DND driver/operator permit to civilians,” reads:

No civilian/contractor engaged by DND in Canada shall be issued a Driver/Operator Permit unless they hold a valid provincial driver’s license issued in their name, by the province in which they are employed, which permits them to legally operate the equivalent class of DND vehicle.

(emphasis added)

29 In response to the complainant’s submissions on the previous Halifax and B.C. appointment processes to fill FR-01 and FR-02 positions, the respondent submits that the establishment of a certain element as either a condition of employment or an essential qualification is a decision within management’s discretion. According to the respondent, it is a common, but not exclusive, practice to require the possession of a valid provincial driver’s licence as an essential qualification for civilian firefighter positions.

30 The respondent provided copies of a February 2007 job opportunity advertisement for a FR-03 position in Halifax, and five job opportunities from November 1997 to July 2003 for positions ranging from FR-01 to FR-05 in various locations in Canada. The respondent submits that this evidence supports its position; the provincial driver’s license with air brake endorsement was required as an occupational certification or essential screening qualification/criterion, as the case may be, rather than a condition of employment, for all of these opportunities.

31 In response to the complainant’s submissions concerning the relationship between the work description and the advertised position, the respondent submits that the requirement of a current NS DL Class 3 does not need to be included in a work description and, in any event, a review of the work description is beyond the scope of the Tribunal’s jurisdiction.

32 Finally, in answer to the complainant’s allegation that the process appeared to favour civilian DND employees, the respondent submits that the complainant has failed to provide any evidence to support this allegation. The respondent adds that one of the three appointees in this process was a member of the Canadian Forces.

C) Public Service Commission’s arguments

33 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. It provided jurisprudence, case law and doctrine in support of its position.

34 The PSC argues that managers possess a broad discretion under subsection 30(2) of the PSEA to establish essential qualifications. In order to find abuse of authority in the establishment of the NS DL Class 3 as an essential qualification, the Tribunal must find there was bad faith or personal favouritism in the decision to require this qualification.

Analysis

Issue I: Did the respondent abuse its authority when it required a current NS DL Class 3 as an essential qualification?

35 The Tribunal is seized with a complaint where the deputy head required the NS DL Class 3 as an essential screening qualification for the FR-02 position in Halifax.

36 The complainant submits that the respondent should have required the NS DL Class 3 as a condition of employment, and not as an essential qualification.

37 Paragraph 30(2)(a) of the PSEA deals with the deputy head’s authority to establish essential qualifications:

30. (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;

(emphasis added)

38 In Visca v. Deputy Minister of Justice et al., [2007] PSST 0024, at paragraph 42, the Tribunal made the following comment about the discretion given to managers in establishing qualifications: “Broad discretion is given to managers under subsection 30(2) of the PSEA to establish the necessary qualifications for the position they want to staff…” In Neil v. Deputy Minister of Environment Canada et al., [2008] PSST 0004, the Tribunal held, at paragraph 46: “What is required of managers is to establish the qualifications for the work to be performed.”

39 Based on the evidence presented by the parties, a valid licence was required for the work to be performed and, hence, the establishment of the requirement for a current NS DL Class 3 as an essential qualification.

40 The Tribunal finds that the requirement for a current NS DL Class 3 as an essential qualification for this position was within the discretion provided to the manager under subsection 30(2) of the PSEA as well as a proper exercise of this discretion.

41 Moreover, as the Tribunal has recently held in Bowman et al. v. Deputy Minister of Citizenship and Immigration Canada et al., [2008] PSST 0012, at paragraph 99:

Paragraph 30(2)(a) of the PSEA authorizes deputy heads to establish essential qualifications “for the work to be performed.” Subsection 31(2) states that the essential qualifications “must meet or exceed any applicable qualification standards established by the employer (…). There are no provisions in either the PSEA or in the Public Service Employment Regulations, SOR/2005-334, which require the deputy heads establish or accept equivalencies to essential qualifications. (…)

42 None of the following arguments raised by the complainant can support a finding of abuse of authority: first, it is not necessary that essential qualifications pertaining to a particular position be listed in a work description. Secondly, the additional considerations for the complainant, in terms of costs and medical examinations, in having to obtain a valid provincial licence may be raised in another forum, but do not lead to a finding of abuse of authority under the PSEA. Finally, it is regretful that the complainant faced difficulties in scheduling to obtain a NS DL Class 3 and, perhaps, this should be considered by the respondent in the future; however, these scheduling difficulties do not support a claim of abuse of authority. As well, on this last point, in his application cover letter dated February 25, the complainant stated that he had a valid Nova Scotia driver’s license with air brakes.

43 Furthermore, the Tribunal cannot agree with the complainant’s argument that a previous posting in July 2006 for a FR-01 position in Halifax requiring the NS DL Class 3 as a condition of employment sets a precedent for the future. The deputy head is provided broad discretion in establishing essential qualifications under the PSEA which may vary for different positions under certain circumstances and for different locations.

44 For these reasons, the Tribunal finds that the complainant has not established that the respondent abused its authority by requiring a NS DL Class 3 as an essential qualification of employment.

Issue II: Did the respondent abuse its authority when it screened out the complainant because he obtained his NS DL Class 3 after the appointment process closing date?

45 A deputy head may choose any assessment method as found in section 36 of the PSEA:

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).

46 The Tribunal addressed section 36 of the PSEA in Visca, at paragraph 51, where it found: “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.”

47 The job opportunity advertisement clearly stated the following: “Candidates must meet the essential qualifications to be appointed to a position.” Moreover, the job opportunity advertisement specified in the essential screening qualifications: “Applicants must clearly demonstrate on their application that they meet all of the following essential screening criteria, and are within the area of selection. Failure to do so may result in the rejection of your application.” Therefore, applicants were aware that if they did not meet all of the essential screening criteria, they may be screened out of the process.

48 In Charter v. Deputy Minister of National Defence et al.,[2007] PSST 0048, the Tribunal concluded that there was no abuse of authority when the complainant was eliminated from the appointment process at the screening stage because he did not meet the essential qualifications in his online application:

[37] In order for a candidate to be appointed to a position, he must demonstrate through the chosen assessment process, that he meets the essential qualifications for the position. In this case, the assessment board used a common assessment method to evaluate education and experience, that is, asking candidates to submit an application outlining how they met those qualifications. The advertisement for the position stated as follows: (…)

[38] Unfortunately, the complainant did not demonstrate in his application how he met the essential qualifications experience 3 and experience 4. (…)

(…)

[40] The Tribunal concludes there is no evidence of abuse of authority in the application of merit, as the complainant did not demonstrate he possessed experience 3 and experience 4 when those qualifications were evaluated by the assessment board.

See also: Neil, supra; King v. Deputy Head of Service Canada et al., [2008] PSST 0006; and, Lavigne v. Deputy Minister of Justice et al. [2008] PSST 0013.

49 The Tribunal finds that the complainant was screened into the process because he stated that he possessed a valid Nova Scotia driver’s license with air brakes in his covering letter and, thus, met the essential screening qualifications which included the NS DL Class 3. However, once the respondent discovered that the complainant did not possess the requisite license at the time he submitted his application, the complainant was informed that he was screened out of the process.

50 The Tribunal finds the complainant did not meet the NS DL Class 3 essential qualification prior to the closing date for the appointment process, namely February 28, 2007 as he obtained it on March 15.

51 Based on these facts, the Tribunal finds there was no abuse of authority when the complainant was eliminated from the process.

Decision

52 For all these reasons, the complaint is dismissed.

Sonia Gaal

Vice-Chair

Parties of Record

Tribunal File:

2007-0275

Style of Cause:

Kevin Feeney and the Deputy Minister of National Defence et al.

Hearing:

Paper hearing

Date of Reasons:

July 8, 2008

Appearances:

For the complainant:

Kevin B.M. Feeney

For the respondent:

Lesa Brown

For the Public
Service Commission:

John Unrau