FPSLREB Decisions

Reasons for Decision

Introduction

1 Ross Neil has filed two complaints under section 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA) alleging that he was not appointed to a Policy Analyst position with either the Strategic Integration Division or the Sustainability Division of the Department of Environment in Vancouver, BC by reason of an abuse of authority by the respondent. The respondent is the Deputy Minister of Environment Canada.

Background

2 In September 2006, the respondent advertised two appointment processes for positions at the ES-05 group and level in their Vancouver office – Policy Analyst, Intergovernmental and International Affairs, Strategic Integration Division (process no. 06-DOE-IA-SI-4529 – the first appointment process) and Policy Analyst, Sustainability Division (process no. 06-DOE-IA-SUS-5013 – the second appointment process). The complainant applied in each of these appointment processes by submitting the same covering letter and résumé for both advertised positions.

3 As the positions were based on a generic work description, the managers involved decided to run the assessment processes together. The assessment board concluded that the complainant did not meet some of the experience required, specifically “significant experience in researching and analysing complex policy issues related to the environment and to sustainable development.” This experience criterion was the same for both advertised Policy Analyst positions.

4 The complainant filed complaints with the Tribunal alleging that the respondent had abused its authority in the establishment of the essential qualifications and in the assessment of the merit criteria for these advertised positions. Pursuant to section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, the two complaints were consolidated prior to hearing.

Summary of relevant evidence

5 The complainant provided the following testimony. He stated that he graduated with a BSc in Environmental Engineering in 1994 and, initially, worked as an environmental consultant in a carbon dioxide abatement program. In 1996, he joined the federal public service and began working at the Atomic Energy Control Board, which is now known as the Canadian Nuclear Safety Commission. He worked as an environmental assessment specialist; his job consisted of equal parts policy and program work. In 2001, the complainant began work as a regulatory affairs officer, international affairs with the Canadian Nuclear Safety Commission, where he worked on international, bilateral and licensing agreements. He also pursued a master’s degree part-time in international environmental governance at Carleton University.

6 In 2004, Mr. Neil decided to relocate to British Columbia. He began working at Environment Canada as an Outreach Programs Officer in the Office of Strategic Integration. His position was a lower classification than the one he had held in Ottawa. He was instrumental in convincing his supervisor, Stan Holman, to clarify the classification of the positions in the office. The organizational chart was revised and several ES-05 positions were created.

7 In particular, these two Senior Policy Analyst positions at the ES-05 group and level were advertised; the first appointment process was advertised on August 22, 2006 and the second was advertised on September 14, 2006.

8 When the complainant saw the requirement for “significant experience” in two areas on the job advertisements for these positions, he raised concerns with management and human resources. In his view, this was more experience than was normally required at the ES-05 group and level. He was informed that there could be differences in qualifications from one appointment process to the next. The experience required for both positions read as follows:

Significant experience in researching and analysing complex policy issues related to the environment and to sustainable development.

Significant experience in initiating, developing and preparing presentations and briefing material, including provision of advice, for senior management.

Experience in representing the Department in departmental, interdepartmental and external fora.

9 Mr. Neil testified that he was informed on October 26, 2006 that he was screened out of the first appointment process. The manager involved, Stan Holman, was on holidays, so the complainant could not discuss this situation with him. He therefore took his concerns to Randal Cripps, Director of Strategic Integration, and to human resources. However, the Director did not wish to interfere with the decisions of the delegated manager and would not discuss the situation.

10 Upon Mr. Holman’s return, the complainant had a meeting to discuss the decision which eliminated him from the first appointment process. The complainant expressed his dismay at being screened out of the process when he had a great deal of experience in researching and analysing environmental policy issues. According to the complainant, Mr. Holman indicated that he did not consider the complainant’s academic work as acceptable significant experience in researching and analysing policy issues. This was particularly surprising to the complainant as he had been in front of a Parliamentary Committee with respect to the issues involved in his master’s degree thesis.

11 The complainant testified that, like him, another colleague raised concerns with Mr. Holman about the assessment board not taking into account work done on a master’s degree. According to the complainant, Mr. Holman expressed concern that, were he to accept the complainant’s further information discussed in their meeting, he would have to go back to all the other candidates. The complainant testified that, although Mr. Holman said he would think about the situation, he never got back to him. Mr. Holman was not called as a witness in this hearing.

12 The complainant testified further that, despite his apparent lack of significant experience, he was asked by the Director, Randal Cripps, to act in an ES-05 position in the Strategic Integration Division from November 6, 2006 to February 2, 2007.

13 In early 2007, the complainant received an offer of employment in another department, and left Environment Canada.

14 The complainant stated that he was informed in January 2007 that he had also been eliminated from consideration for the Policy Analyst position in the Sustainability Division as, once again, he did not have the required “significant experience in researching and analysing complex policy issues related to the environment and to sustainable development.”

15 The complainant testified that, during informal discussion, the manager, Ms. Metropolit, confirmed that he did not have significant policy experience, but she did not clearly indicate what experience would have been required.

16 In support of his allegation that the experience qualification was inflated and inequitable compared with other ES-05 positions, the complainant introduced a document he had compiled of 35 ES-05 job advertisements. All of these policy analyst/advisor positions were advertised on Publiservice in 2005, 2006 or 2007. The respondent objected to this document being introduced into evidence on the grounds that it was irrelevant to this complaint.

17 Mr. Neil stated that none of the positions at the ES-05 level that he found advertised required significant experience. However, on cross-examination, the respondent introduced two other ES-05 job advertisements which did contain qualifications requiring significant experience. The complainant acknowledged that some positions did require significant experience, but in most cases, significant was defined, usually as two years.

18 The complainant also referred to the written evidence tendered by the respondent, indicating that although the screening criteria were in draft form on September 22, 31 applications were assessed by September 26, 2006. In fact the final version of the screening criteria was contained in a document sent to Julie Hirose, Human Resources Consultant, on September 26, 2006, the very same day the screening of candidates was completed.

19 According to the complainant, the comments the board made on the screening form concerning his experience were very cursory: “appears to be anchored in implementing agreements”; “little evidence of advice to senior management”; and, “limited topics.”

20 Brenda Metropolit, Director of Sustainability, Pacific and Yukon Region, testified on behalf of the respondent. She stated that she had moved into the environmental policy field in 2001 and had been the Manager of Intergovernmental and International Affairs with Environment Canada prior to assuming her duties as Director, Sustainability Office. Ms. Metropolit testified that she and the Director of Strategic Integration had decided to conduct the appointment processes for the ES-05 positions at the same time. The assessment board was composed of Ms. Metropolit and Stan Holman, Manager, Intergovernmental and International Affairs Section.

21 Ms. Metropolit testified that she and Mr. Holman met a number of times to discuss the merit criteria. They determined the qualifications needed from the work to be done. This was the first time they had ES-05 positions in the regional office and, in addition, the appointment process had changed with the new PSEA. According to Ms. Metropolit, they had reviewed a number of statements of merit criteria, and Mr. Holman had sent her a compilation of possible experience requirements in an email dated August 4, 2006. They had discussed using significant experience in researching and analysing policy from the very beginning.

22 Ms. Metropolit confirmed that the essential qualifications for the two positions were the same, although the asset qualifications were different. At the time, they had just completed an appointment process for positions at the ES-04 level and, thus, it made sense to require significant experience in researching and analysing policy issues for the higher level ES-05 positions. Mr. Holman had initially suggested that significant experience would be at least two years, and then he had suggested more than three years. Finally, the assessment board decided that it would define significant as being three years, which would represent experience of three planning cycles.

23 Ms. Metropolit also testified that another reason for requiring significant experience was because the managers were out of the office frequently, and they needed seasoned employees who were familiar with the four phases of policy – consultation, development, implementation and assessing impact – and could work independently. The managers chose to require “significant experience” as part of their rationale for distinguishing between a policy analyst at the ES-04 level and one at the ES-05 level.

24 The final screening criteria agreed to by the assessment board were sent by email from Mr. Holman to Julie Hirose, Human Resources Consultant, on September 26, 2006.

25 The screening for the first appointment process was carried out in two sessions, ending on September 26, 2006. The assessment board considered the complainant’s résumé and covering letter. Ms. Metropolit testified that the complainant’s application was placed in the “maybe” pile, warranting further examination. He had one year and one month experience as a senior regional analyst with Environment Canada. According to Ms. Metropolit, the board considered his three years of experience as a regulatory affairs officer with the Canadian Nuclear Safety Commission, but felt this experience was anchored in implementing agreements and not in analysing complex policy issues. Similarly, his five years as an environmental assessment specialist at the Atomic Energy Control Board was considered experience as a scientific expert interpreting legislation, and not as experience in analysing complex policy issues. The assessment board spent quite a bit of time considering the complainant’s application, but could not find that he demonstrated he had the significant experience required.

26 The screening for the second appointment process was completed on January 18, 2007. The comments noted for the complainant were identical to those for the first appointment process, and he was advised on January 30, 2007 that he was eliminated from further consideration.

27 Ms. Metropolit stated that while the complainant had substantial related experience, the assessment board had screened on the specific clauses in the experience qualification of the Statement of Merit Criteria. She had never worked directly with the complainant.

28 Under cross-examination, Ms. Metropolit stated that she had consulted a number of staffing resources which she kept in a binder of good staffing practices. She reiterated that she and Mr. Holman had several discussions on what criteria they would use to determine if a candidate had significant experience. They finally decided on three years, based on a number of factors, including what the job required, the length of time needed for a full policy cycle, and the need to distinguish between analysts at the ES-04 and ES-05 level.

Issues

29 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority when it established significant experience as an essential qualification for the ES-05 positions of Policy Analyst in the Strategic Integration and the Sustainability Divisions?
2. Did the respondent abuse its authority when the assessment board determined that the complainant did not have the significant experience required for either of these positions?

Arguments of the parties

A) Complainant’s arguments

30 The complainant alleges that the managers abused their authority in establishing essential qualifications which exceeded the criteria typically established for ES-05 policy analyst positions. The complainant had done a survey of all ES-05 positions advertised in the last several years that had a policy component. His compilation showed that 36 statements of merit criteria had not required “significant” experience. The complainant believes very strongly that it is important that national standards be used and that those employees doing similar work have similar qualifications. The complainant submits that to have such a discrepancy between regions, a region and headquarters, or among departments, is totally unjustified. To do so, he suggests, goes against the trend towards standardization of positions.

31 In addition, the assessment board failed to notify candidates of their definition of “significant” and, thus, failed to conduct a fair and transparent assessment process. According to the complainant, in the few cases where significant experience was required for ES-05 positions, it was usually two continuous years, not three years, as was required for these two positions. The complainant submits that setting the criterion at three years and then not informing candidates was a very serious error amounting to an abuse of authority.

32 The complainant contends that, while managers have the discretion to establish qualifications, that discretion is not absolute. In support of his position, the complainant refers to two Tribunal cases: Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011; and, Visca v. Deputy Minister of Justice et al., [2007] PSST 0024. The complainant submits that qualifications established by a manager have to be reasonable.

33 The complainant further states that the assessment board abused its authority in the actual assessment of the complainant’s qualifications. First, it was clear that the assessment process for the position in Strategic Integration was rushed. Mr. Holman was leaving for holidays in September 2006 and had limited time to review the applications. There were only 10 business days between the close of the advertised process and the completion of the screening on September 26, 2006. The complainant argues that the applications were not read with enough care.

34 The complainant submits that the evidence establishes that the applications were reviewed before Ms. Metropolit and Mr. Holman had come to agreement on the screening criteria. Screening was done on at least two days, the final day being September 26, the day on which Mr. Holman sent the screening criteria to Ms. Hirose. Ms. Metropolit testified that the complainant’s application was placed in the “maybe” pile, warranting further examination. Given this, the complainant believes that the assessment board should have considered their personal knowledge of the complainant’s experience. The assessment board focussed on Environment Canada experience; yet, the experience required could have been acquired in more than one department. The complainant says that he has multi-disciplinary experience which was not taken into account.

35 The complainant submits that management showed no willingness to investigate or show him any documentation to alleviate his concerns. The complainant refers to Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, in support of his contention that, even without improper intent, managers may abuse their authority by acting on inadequate material or arriving at an unreasonable decision.

B) Respondent’s arguments

36 The respondent submits that the complainant’s issue is with regional variations in qualifications established for similar positions. The Tribunal is not a forum to look at regional variations, nor is its role to reassess the complainant’s qualifications. According to the respondent, the Tribunal’s role is to determine if the actions taken in establishing or assessing the merit criteria amounted to an abuse of authority.

37 The respondent submits that the PSEA clearly sets out that the deputy head has the authority to establish qualifications for positions. It also gives discretion to managers to choose assessment tools to evaluate those qualifications.

38 The respondent argues that the evidence supports a finding that the respondent fully complied with the PSEA in all aspects of these appointment processes. The respondent submits that it has clearly demonstrated through the testimony of Ms. Metropolit that significant experience was required for these positions. Ms. Metropolit testified that incumbents would be required to work with limited direction from management, that they needed the ability to function with changes in government, and needed experience with cycles in planning. Because new positions had been created, there was a great deal of deliberation by the assessment board about the experience qualifications to ensure that there was a proper distinction between positions at the ES-04 and ES-05 level. The managers had consulted with Julie Hirose, Human Resources Consultant. They had developed a screening template and rationale for their criteria and had applied the criteria to each candidate.

39 The respondent further submits that the complainant’s compiled list of other ES‑05 positions is completely irrelevant to these complaints, as the list relates to different positions, managers and circumstances.

40 Turning to the assessment of experience, the respondent submits that the evidence shows that the assessment board completed its screening of candidates on September 26, 2006, about one month after the closing date for the first appointment process. The respondent submits that the complainant has failed to demonstrate that the length of time involved in screening candidates resulted in any candidate, including the complainant, being unfairly screened out of these appointment processes.

41 According to the respondent, the complainant has failed to prove abuse of authority in either the establishment or application of merit in these two appointment processes.

C) Public Service Commission’s arguments

42 The Public Service Commission (the PSC) did not appear at the hearing. As it has done in previous complaints, the PSC provided general written submissions on the concept of abuse of authority and how the Tribunal should focus its approach in this area.

Analysis

Issue I: Did the respondent abuse its authority when it established significant experience as an essential qualification for the ES-05 Policy Analyst positions in the Strategic Integration and Sustainability Divisions?

43 Subsection 30(2) of the PSEA sets out the definition of merit, as well as the authority of the deputy head to establish qualifications. This subsection states that an appointment is made on the basis of merit when the person to be appointed meets the essential qualifications, as established by the deputy head.

44 The Tribunal made the following comments about the discretion given to managers in establishing qualifications in Visca:

[42] 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 and to choose the person who not only meets the essential qualifications, but is the right fit. Similar discretion is provided under section 36 of the PSEA for those with staffing authority to choose and use assessment methods to determine if the person meets the established qualifications. (…)

45 Thus, management enjoys a broad discretion to determine the qualifications for a position. In this case, the managers decided that they would require candidates to have significant experience in researching and analyzing complex policy issues. Based on the evidence at hearing, it is clear that the rationale for requiring significant experience was to distinguish this level of policy analyst from those at the ES-04 level and to ensure that those appointed would have the experience necessary to work independently and with a minimum of supervision. The Tribunal finds that the establishment of significant experience as an essential requirement for these positions was a proper exercise of the managers’ discretion under subsection 30(2) of the PSEA.

46 The complainant argued that similar positions at the ES-05 level should have similar qualifications. He also gave his opinion that this would support the trend towards standardization of positions. However, no evidence was presented to demonstrate that managers are required to use similar qualifications for positions at the same level, nor was evidence adduced to show there is a trend towards standardization of positions. What is required of managers is to establish the qualifications for the work to be performed. In this case, the Tribunal has no reason to intervene in the manager’s discretion in this area.

47 The assessment board then had discussions about what criteria they would use to assess significant experience. In his email to Ms. Hirose dated September 26, 2006, which was tendered in evidence, Mr. Holman stated that candidates should have three years experience researching and analyzing complex policy issues. The key portion of the email reads as follows:

A minimum of approximately 3 years of work experience conducting research and analysis of complex policy issues. Three years is seen as a reasonable period to provide for the feedback loop of reality to bring back to the individual the actual impact of recommendations. It also is a reasonable number of fiscal and planning cycles for the individual to have experienced as well as the probability of the individual experiencing a change in government. Significant experience is needed to provide “seasoned” candidates for the Senior Policy analyst position.

The policy issues are to be related to the environment and sustainable development.

The complexity of the issues is measured by the range of factors being considered in the analysis, the degree of lack of legislative mandate or other frame of reference, and the interaction with senior officials and the political level. Work in a technical or regulatory field is not considered to be as complex as the work done on policy issues in the absence of specific legislation and regulation.

48 The Tribunal finds, based on the evidence presented at hearing, that the respondent properly turned its mind to what it wanted the assessment board to look for when it screened candidates for these positions on the basis of the essential qualification significant experience.

49 The Tribunal also finds as a fact that the complainant was not clearly informed of how significant experience was to be assessed. The documentary evidence indicates that the Board members were considering criteria for significant experience in an August 4 discussion document (at least two years). Then, Mr. Holman sent what he termed a “first draft” to Ms. Metropolit on September 22, indicating that significant was “preferably more than 3 years.” The final version of the criteria was sent in writing to Ms. Hirose on September 26, 2006. This was the same date that the assessment board completed the screening of candidates. Thus, this aspect of the appointment process cannot be said to be transparent.

50 The Tribunal wishes to emphasize that, while it is not mandatory to inform candidates of complete details of how a particular qualification will be assessed, it is in everyone’s interest to be as clear and transparent as possible in an appointment process. This will ensure that all those who do, in fact, meet a qualification can demonstrate this and proceed to the next step of the process. Therefore, it would have been preferable for the respondent to provide candidates with greater details on the Statement of Merit Criteria concerning how “significant experience” was to be assessed by the board. This approach is recommended in the Public Service Commission’s Guidance Series – Assessment, Selection and Appointment as follows:

In order to assist in the screening of applicants, it is important for the manager to develop a definition of certain words; for example, what is meant by a requirement for "recent" or "significant" experience. Once such a definition has been established, the manager or the assessment board, if requested by the manager, should be prepared to respond to inquiries and convey this information to applicants or to prospective applicants (…) Definitions are developed based on the requirements of the position, and not on the experience or qualifications persons have. Therefore, the definitions should be established prior to the review of applications or qualifications of the persons being considered.

· Example - The advertisement for a particular position indicated that persons require "Significant experience in developing policy." The manager should define the word "significant" and it could be communicated in the advertisement (…)

51 However, failure to inform candidates of a specific definition related to a merit criterion does not, in and of itself, amount to abuse of authority. The qualification established by the managers and against which candidates would be assessed was set out in the Statement of Merit Criteria. The Tribunal finds that the qualification itself was sufficiently detailed so that candidates knew what they had to demonstrate.

52 The PSC document also points out that definitions should be established prior to the review of applications of the persons being considered. Based on the evidence presented at hearing, the Tribunal finds as a fact that the assessment board only finalized its definition of significant experience on the same date as the screening of candidates was completed. This practice should definitely be avoided, as it could lead to an allegation that the criteria were established in order to eliminate or to favour a particular candidate. There is no evidence of such manipulation in this case.

Issue II: Did the respondent abuse its authority when the assessment board determined that the complainant did not have the significant experience required for either of these positions?

53 In this case, the complainant assumed that he had demonstrated significant policy experience through his one year at Environment Canada and his many years working in the environmental field. However, this particular assessment board sought specific evidence of researching and analyzing complex policy issues over a three-year period. There was no evidence presented at the hearing that the assessment board conducted an unreasonable or inappropriate assessment of the complainant.

54 Despite the assertion from the complainant that the assessment board made a cursory review of his application documentation, there is no evidence to support this. The assessment board had 12 working days between the closing date of the process and the conclusion of the screening process on September 26, 2006. Ms. Metropolit testified that the board spent significant time evaluating the information contained in the complainant’s application, searching for specific evidence of his experience researching and analysing complex policy issues. The complainant argued that the board should have used their personal knowledge of his experience, but no evidence was presented to demonstrate that the board members were familiar with his past experience. Although the complainant has a lot of valuable environmental experience, he did not clearly demonstrate to the assessment board that he had the specific experience required for these positions.

55 As the Tribunal has confirmed in numerous decisions, the onus lies on the complainant to prove abuse of authority. He has failed to do so here. Ms. Metropolit provided a rational explanation to support the assessment board’s decision to eliminate the complainant. The Tribunal finds no abuse of authority in the assessment of the complainant’s experience.

56 Finally, while not required for the disposition of this complaint, the complainant raised one other concern that deserves comment. In referring to his informal discussion after he had been eliminated, the complainant alleges that even when the problems with this qualification were pointed out to the manager, nothing was done to remedy the situation. In Rozka et al. v. Deputy Minister of Citizenship and Immigration Canada et al.,[2007] PSST 0046, the Tribunal stated:

[76] Informal discussion is intended primarily to be a means of communication for a candidate to discuss the reasons for elimination from a process. If it is discovered an error has been made, for example, if the assessment board did not consider some information listed on a candidate’s application, this provides the opportunity for the manager to correct that mistake. However, informal discussion is not an opportunity to request that the assessment board reassess a candidate’s qualifications.

57 While it is clear that the complainant believed that the qualification was flawed, it is equally clear that the assessment board was satisfied that it had established an appropriate experience requirement for these positions. There is no evidence on which to conclude that there was an abuse of authority in these appointment processes.

Decision

58 For the above reasons, the complaints are dismissed.

Helen Barkley

Member

Parties of Record

Tribunal Files:

2007-0198 & 0199

Style of Cause:

Ross Neil and the Deputy Minister of Environment Canada et al.

Hearing:

November 8 and 9, 2007
Vancouver, British Columbia

Date of Reasons:

February 5, 2008

Appearances:

For the complainant:

Self-represented

For the respondent:

Amita Chandra

For the Public
Service Commission:

Angie Paquin