FPSLREB Decisions

Reasons for Decision

Introduction

1 On October 13, 2006, Denise Trachy filed a complaint with the Public Service Staffing Tribunal (the Tribunal) pursuant to paragraph 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA). The complainant had applied for the position of Personnel Licensing Supervisor, PM-04, at the Department of Transport.

2 The complainant alleges that the respondent, the Deputy Minister of Transport, Infrastructure and Communities, abused its authority in three ways. First, the respondent did not comply with its legal obligations, in particular section 36 of the PSEA and the Public Service Commission Appointment Policy (hereinafter the PSC Policy), because the respondent did not establish or use a fair and transparent assessment method. The scoring assigned to the candidates does not show that the assessment was impartial, fair and transparent. Second, the complainant submits that the respondent showed favouritism to the appointed person, thus avoiding the need to reclassify that person’s position. Third, the complainant’s prolonged absence from work due to a medical condition was taken into consideration by the assessment board.

3 At the start of the hearing, the complainant, through her representative, informed the Tribunal that only one issue remained, namely, that the respondent did not comply with its legal obligations, in particular the provisions of section 36 of the PSEA and the provisions of section 16, which deals with the PSC Policy.

Summary of relevant evidence

4 The complainant has worked for the Department of Transport’s General Aviation Branch for 20 years. She has held the position of licensing officer at the PM-02 group and level since 2000.

5 The complainant has acted in a PM-04 position several times. During these acting periods, she participated in the review and implementation of the Department’s new centres in the Quebec Region. She was primarily responsible for setting up the centres and for on-site training of employees.

6 Following publication of the notice of appointment, the complainant met with Jean Desjardins, the manager responsible for the position, on two occasions.

7 During these two meetings with Mr. Desjardins, the complainant did not receive satisfactory explanations to her questions about the scoring grid for the written test and about the marks to be awarded for providing the correct answers. The complainant alleges that the respondent tried to hide the relevant information.

8 The complainant explained that several questions on the scoring grid did not show the number of marks to be given for each correct answer or the maximum number of marks per question. More specifically, the relevant questions are 3, 6, 8, 9 and 11 through 19 inclusive.

9 The complainant felt that she had been wronged because the candidates were not assessed in a fair and transparent manner. She believes that the assessment board’s errors and omissions show a lack of transparency and amount to abuse of authority.

10 Mr. Desjardins also testified. Since January 2004, he has been Regional Manager of General Aviation in Quebec, and has been employed in the public service for 19 years. His responsibilities cover a number of areas, including training, personnel licensing, registration and special events.

11 Following the announcement that Normand Joly was leaving, Mr. Desjardins decided to hold an internal advertised process to staff the position of Personnel Licensing Supervisor at the PM-04 group and level. He said that the Statement of Merit Criteria had been developed in cooperation with Mr. Joly and Michel Lessard, a Human Resources representative. The assessment methods were established by Mr. Desjardins and Mr. Lessard.

12 Mr. Desjardins said that he had awarded marks fairly and equitably for all the candidates. Marks were awarded in proportion to the number of correct answers provided. Mr. Desjardins used Question 5 as an example to explain how marks were awarded. The maximum number of marks was 20 for four correct answers. The complainant provided three correct answers and thus received a mark of 15 out of 20.

13 Mr. Desjardins explained that he had made a mistake in not indicating on the scoring grid the maximum number of marks to be awarded for several answers. He also explained that before the written test was corrected, he had prepared a working document with the maximum score to be given for each of the questions to facilitate the transposing of the candidates’ results to each question. This document simply shows the transcription of the candidates’ marks for the written test questions and for the interview.

14 Mr. Desjardins acknowledged that he had not corrected this error because it had no impact on the final result of the process. He again confirmed that he had marked the candidates’ answers according to the maximum prorated marks allowed for each of the questions, and that he applied the same method for each candidate. Mr. Desjardins also explained that he did not feel it was necessary to include the information contained in the working document on the scoring grid, but that he had no improper intention.

15 Mr. Desjardins concluded by explaining that he had corrected and scored the answers provided in a fair and honest manner from start to finish, and that when an answer was partially correct, he awarded marks accordingly.

16 When questioned about the fact that he had not corrected the errors on the scoring grid as the PSC Policy requires, Mr. Desjardins stated that he had in fact corrected some errors because two candidates who had been eliminated from the appointment process were reintegrated following an informal discussion.

17 Finally, Mr. Desjardins indicated that he had scored the answers provided on the basis of the scoring grid in terms of the expected answers and that all the candidates were marked in the same way. He also said that the fact that the marks awarded for each correct answer were not indicated on the scoring grid was a mere oversight, and that he did not think that he had made any mistakes in awarding marks to the candidates.

Issues

18 The Tribunal must answer the following questions:

1. Did the respondent abuse its authority in the choice and application of assessment methods?
2. Did the respondent abuse its authority in not indicating, on the scoring grid, the marks to be awarded for each correct answer, and in not correcting the mistakes?

Arguments

A) Complainant’s arguments

19 The complainant submits that, pursuant to section 36, the respondent may choose the methods for assessing candidates, but that those methods must be fair, equitable and transparent. The complainant also submits that the scoring grid is neither clear nor transparent, and cannot provide a sound basis for making appointments according to merit.

20 The complainant states that the PSC Policy clearly indicates on page 20, under the heading “Policy Objectives,” second paragraph, that if errors are identified, the respondent must correct them. She submits that the respondent became aware of the errors in the scoring grid and of the discrepancies between it and the working document but chose not to make the corrections. The complainant argues that it is not important whether the mistakes were made voluntarily or not, the mistakes are inexcusable.

21 The complainant argues that 13 of the 19 questions have no marking scale for the answers on the scoring grid. She also submits that the working document is of no value in the assessment of the candidates. She further argues that the assessment method used is incomplete and contains serious errors that make it impossible to determine, in a fair and transparent manner, what marks were awarded for the answers for questions 3, 6, 8, 9 and 11 to 19.

22 In the complainant’s view, it is clear that the respondent made errors and therefore did not comply with the PSEA, more specifically, sections 16 and 36.

23 The complainant submits that, in her opinion, the method used is flawed and its application reflects neither the intention of the PSEA nor the PSC Policy. She submits that Parliament’s intention was to foster confidence in appointment decisions and in the integrity of the appointment system, as described on page 4 of the PSC Policy.

24 Finally, the complainant argues that the facts clearly show that the respondent abused its authority by not complying with its legal obligations, and did not establish a fair and transparent method.

25 The complainant is asking the Tribunal to allow her complaint, revoke the appointment and cancel the whole appointment process.

B) Respondent’s arguments

26 The respondent submits that the crux of the issue resides in the reasons why the complainant was not appointed or proposed for appointment because of the chosen methods, and the basis on which the respondent preferred the appointed person.

27 The respondent argues that the evidence shows that the choice of the appointed person is in no way based on bad faith, personal favouritism or any other ground for alleging abuse of authority.

28 The respondent submits that the Tribunal’s case law is consistent and clearly establishes that the onus is on the complainant to prove abuse of authority. The respondent further argues that the use of a ranking or scoring system does not remove the burden of proof from the complainant. The respondent does not have to convince the Tribunal that it did not act in bad faith, abuse its authority or show favouritism.

29 The respondent submits that the complainant did not produce any evidence to show that she was treated differently from the other candidates.

30 The respondent argues that the marking schemes as established by Mr. Desjardins and the alleged or even admitted errors regarding the scoring grid or the working document had no effect on the final result.

31 The respondent argues that the complainant did not produce any evidence to show that this marking scheme was rigged or designed to put a candidate at an advantage or disadvantage.

32 The respondent further argues that the complainant is asking the Tribunal to revoke the appointment of the person appointed without having proved that the appointment is not based on merit. The complainant did not prove any wrongdoing, bad faith or personal favouritism that could have affected the assessment.

33 Finally, the respondent claims that there is no evidence of abuse of authority showing that the errors affected the results and influenced the decision.

C) Public Service Commission’s arguments

34 The Public Service Commission (the PSC) submits that the errors made could be described as clerical, not as errors that could be interpreted as an indication of bad faith, personal favouritism or abuse of authority.

35 The PSC argues that innuendos are not evidence of abuse of authority.

36 The PSC argues that even though the marking scheme is not given on the scoring grid, this error did not fundamentally affect the complainant’s result. The PSC further notes that in spite of this mistake, the complainant obtained the highest score on the written test.

37 The PSC argues that the PSC Policy deals with the appointment process as such, and that the error must relate to the process itself.

38 The PSC submits that there must be a concrete link between the error and the alleged abuse of authority. The PSC argues that the evidence only reveals an error of fact that does not affect the appointment. No evidence was produced to show that the respondent abused its discretionary authority, that there was gross negligence or that marks were awarded arbitrarily.

39 Finally, the PSC argues that the complainant did not discharge her burden of proving that the errors made constitute an abuse of authority.

Analysis

Issue I: Did the respondent abuse its authority in the choice and application of assessment methods?

40 The complaint was made pursuant to paragraph 77(1)(a) of the PSEA, which 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

(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

(…)

41 Section 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

(b) the Commission has regard to

1. any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
2. any current or future operational requirements of the organization that may be identified by the deputy head, and
3. any current or future needs of the organization that may be identified by the deputy head.

(…)

42 The complainant alleges that the respondent did not fulfil its legal obligations, in particular under section 36 of the PSEA and the PSC Policy. Section 36 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).

43     The Tribunal has dealt with assessment methods in Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011, more specifically in paragraph 77, which reads as follows:

[77] Section 36 of the PSEA provides that the deputy head may use any assessment method that he or she considers appropriate in an internal appointment process. For the Tribunal to find that there was abuse of authority in the selection of the assessment methods, the complainant must prove that the result is unfair and that the assessment methods are unreasonable, do not allow the qualifications stipulated in the statement of merit criteria to be assessed, have no connection to those criteria, or are discriminatory.

44 In this case, the complainant has not provided the Tribunal with any evidence to show that the choice and application of the assessment method resulted in an unfair result or that the method was unreasonable. On the contrary, Mr. Desjardins testified that he awarded marks fairly and equitably for all the candidates. He also explained that before the written test was corrected, he had prepared a working document with the maximum score to be awarded for each of the questions in order to facilitate the transposing of the candidates’ results to each question. These uncontested facts and the credibility of the witness convince the Tribunal that the respondent did not treat the complainant in an unreasonable, unfair or abusive manner.

45 The Tribunal finds that the respondent in no way abused its authority in the choice and application of the assessment methods.

Issue II: Did the respondent abuse its authority in not indicating, on the scoring grid, the marks to be awarded for each correct answer, and in not correcting the mistakes?

46 In Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, paragraph 65, the Tribunal indicated that there must be more than mere errors or omissions for there to be abuse of authority:

[65] It is clear from the preamble and the whole scheme of the PSEA that Parliament intended that much more is required than mere errors and omissions to constitute abuse of authority. For example, under section 67 of the PSEA, the grounds for revocation of an appointment by a deputy head after an investigation are error, omission and improper conduct. These grounds for revocation are clearly less than those required for a finding of abuse of authority. Parliament’s choice of different words is significant: Sullivan & Driedger, supra at 164. Abuse of authority is more than simply errors and omissions.

47 Furthermore, in Portree v. Deputy Head of Service Canada et al., [2006] PSST 0014, the Tribunal stated that errors must amount to serious wrongdoing or a major flaw to constitute an abuse of authority:

[47] An allegation of abuse of authority is a very serious matter and must not be made lightly. In summary, in order to succeed before the Tribunal, a complaint for abuse of authority must demonstrate on a balance of probabilities a serious wrongdoing or flaw in the process that is more than a mere error, omission or improper conduct that justifies the Tribunal’s review and intervention.

(Emphasis added)

48 The complainant has shown that the respondent made errors and chose not to correct them. However, these are mere errors or omissions that do not reflect any wrongdoing or major flaw. The complainant has not proven that these errors affected the final result. No evidence has been produced to show that if the errors had been corrected, the result would have been affected or would have been fundamentally different. In spite of everything, the complainant obtained the highest mark on the written test, a fact that would make it difficult to find that the errors reflect wrongdoing or a major flaw.

49 The evidence shows that the respondent applied the same scoring grid, with the errors that it contained, to each of the candidates.

50 The Tribunal finds that even though the respondent erred in not indicating the marks to be awarded for each correct answer on the scoring grid and in not correcting the mistakes, these are mere errors or omissions and do not constitute abuse of authority. Clearly, the respondent did not abuse its authority.

Decision

51 For all these reasons, the complaint is dismissed.

Francine Cabana

Member

Parties of Record

Tribunal File:

2006-0169

Style of Cause:

Denise Trachy and the Deputy Minister of Transport, Infrastructure and Communities et al.

Hearing:

September 13 and 14, 2007
Montreal, Quebec

Date of Reasons:

January 28, 2008

Appearances:

For the complainant:

Claude Faust
Lise Dupont

For the respondent:

Martin Desmeules
Christine Landry

For the Public
Service Commission:

Lili Ste-Marie