FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainants, Raymond Melanson and Bruce Innes, work at the Department of National Defence (DND) and filed each a similar complaint on May 10, 2007 concerning an internal advertised appointment process for a Planner/Estimator position. They were found not to be qualified because they did not meet the essential qualification of personal suitability. They contend that their performance appraisals contradicted the comments made by supervisors during the reference checks.

2 The complainants submit that the respondent, the Deputy Minister of National Defence, abused its authority in not appointing them on the basis of the references that were unfair to them.

3 The complainants filed their complaints under paragraph 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA). For the purposes of the decision, the Tribunal is consolidating both files in accordance with section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6.

4 A hearing on the merits of this case was held in Halifax, Nova Scotia, on February 14 and 15, 2008.

Background

5 On November 11, 2006 a Job Opportunity Advertisement was posted on Publiserviceregarding the Planner/Estimator position (SR-PLE – 10) at DND (process number 06-DND-HALFX-IA-054978) in the Fleet Maintenance Facility Cape Scott. The process was to establish a pool of qualified candidates to staff current and future vacancies.

6 Candidates were screened into the appointment process on the basis of their education and experience qualifications. Successful candidates then wrote an examination to assess their abilities. The next step was to assess personal suitability through reference checks. Finally, candidates who met all the essential qualifications were then assessed against the asset qualifications.

7 The complainants were both screened into the appointment process and were successful in the written exam. They were then asked to provide references. Mr. Melanson put forth the names of Dennis Gionet, a former Docking Master and Project Manager at Halifax Shipyards (Retired), and André Monette, Technical Services Supervisor (TSS), Sheet Metal Shop at DND. Mr. Innes gave Tom Hatcher, TSS at DND and Mr. Monette as references.

8 The assessment board decided that Mr. Gionet was not an appropriate reference for Mr. Melanson as it had been about six years since Mr. Gionet supervised Mr. Melanson when they worked together at the Halifax Shipyards in 2001. Mr. Dan Goulden, the assessment board member who conducted the reference checks for both complainants contacted instead Joe Christie, TSS in the sheet metal shop at DND, who had recently supervised Mr. Melanson.

9 Similarly, the assessment board found that Mr. Hatcher was not an appropriate reference for Mr. Innes as he was not his supervisor. Mr. Goulden chose to speak with Mr. Christie who had also recently supervised Mr. Innes.

10 On the basis of the reference checks, the assessment board determined that Mr. Melanson and Mr. Innes did not meet the essential qualification of personal suitability for the position and were not considered any further in the appointment process.

11 During the hearing, the respondent raised an objection regarding the complainants’ Performance Appraisal Reports (PARs) being introduced as evidence since it believed that the documents were not relevant to the issue before the Tribunal. The Tribunal allowed the PARS for both complainants to be introduced into evidence during their testimony and advised it would reserve its decision as to the proper weight to give them. Consequently, the witnesses referred to the PAR to show inconsistencies with the reference checks.

Summary of relevant evidence

12 Both complainants testified. Mr. Melanson has been at DND for approximately 12 years in total, beginning in 1989, with periods where he was outside the federal public service. He worked for Mr. Monette for approximately nine months.

13 Mr. Melanson stated that certain comments made during the reference checks by both Mr. Monette and Mr. Christie were never addressed with him, such as dependability or timekeeping and therefore should not be taken into account.

14 Furthermore, Mr. Melanson believed that his PARs completed by Mr. Christie contradicted some of the statements he made during the reference checks.

15 According to Mr. Melanson, discrepancies in Mr. Christie’s answers in the reference check should have alerted Mr. Goulden. In particular, Mr. Christie stated to Mr. Goulden that he had been Mr. Melanson’s supervisor for 25 years when in fact, he had supervised him a total of three or four years. Mr. Melanson added that Mr. Christie supervised him for about two and a half years since he returned to DND in July 2001.

16 Mr. Melanson introduced six PARs into evidence. Mr. Christie signed three PARs, for the periods April 1, 2004 to March 31, 2007. The other three were signed by Mr. Tait, from July 2001 to March 31, 2004. According to Mr. Melanson, the PARs signed by Mr. Tait were better than the ones signed by Mr. Christie as his ratings “went down” with Mr. Christie however he had no explanation from Mr. Christie as to why this had happened.

17 In cross-examination, Mr. Melanson agreed that he accepted the positive comments but not the negative ones made during the reference checks. He also agreed that he wanted to use the PARs to show that Mr. Christie rated him well. On the other hand, he did not want to use Mr. Christie as a reference as they had a “past history” between them and conflicts.

18 Mr. Melanson did not understand his rating by the assessment board and thought it was unfair. He believed he should have been found to be qualified in order to have the opportunity to act in a position.

19 Mr. Innes has been at DND since 1974 as a tradesperson. He acted as a TSS in various positions “on and off” for 11 years now, on numerous occasions for Mr. Hatcher and for Mr. Christie. He explained that he chose Mr. Hatcher as a reference because he is responsible for larger units in Halifax and he thought Mr. Hatcher would be able to provide positive examples since he was familiar with Mr. Innes’ work.

20 Mr. Innes entered two PARs into evidence, both signed by Mr. Christie from April 1, 2005 to March 31, 2007. He indicated that he has known Mr. Christie for over 30 years.

21 Mr. Innes also took issue with some negative comments made during the reference checks, for example, in judgement, dependability and effective personal relationships, as they were not reflected in the PARs.

22 Furthermore, Mr. Innes had concerns with respect to the reference checks as examples were not provided to explain the answers.

23 In cross-examination, Mr. Innes explained that he did not work for Mr. Hatcher but rather had filled in for him on an acting basis. He stated that they would sit together and discuss the work but Mr. Hatcher had never supervised him.

24 When asked why he did not select Mr. Christie as a reference since he has known him for 30 years, Mr. Innes stated that it was up to him to decide who he wanted as a reference and he did not choose Mr. Christie.

25 As a remedy, Mr. Innes wants the answers from the referees to be reviewed fully by the assessment board.

26 Mr. André Monette also testified on behalf of the complainants. He has been a supervisor since February 2006 and shares the responsibility with Mr. Christie for supervising both complainants. He had no real input in their PARs.

27 Mr. Monette stated that he stood by the comments he made during the reference checks for both complainants. He submitted that he had provided examples to support the answers in the areas that caused concerns for the complainants.

28 Dan Goulden testified for the respondent. He has been at DND for almost 27 years. He was on the assessment board for this appointment process and part of the group that developed the Job Opportunity Advertisement and the Statement of Merit Criteria and Conditions of Employment. He explained to the Tribunal the essential qualifications and the reasons the assessment board was looking for these specific skills.

29 There were 53 applicants, six were screened out, five did not attend for the written examination and two did not pass it. They were therefore not assessed any further.

30 Mr. Goulden testified that he did not know Mr. Melanson prior to this appointment process but knew Mr. Innes who has been at DND for over 30 years and because Mr. Innes acted for him in January 2004.

31 The assessment board did the reference checks by trade group. Mr. Goulden indicated that he had to contact the references for 20 candidates, which meant he had to contact 40 referees since each candidate had provided two names. The same questions were used by the three assessment board members for all the referees they contacted. The sole purpose of the questions was to put a “mark” to the four essential qualifications: effective interpersonal skills, initiative, reliability and judgement.

32 Mr. Goulden met most referees face to face but also conducted phone interviews. He tried to take down the answers verbatim and stated that he wrote as fast as he could. When he had concerns, he read back the question and the answer. He did not prompt answers or examples from any of the referees he contacted. Therefore, according to him, the notes he took during these interviews in the Record Reference Check are accurate.

33 Mr. Goulden spoke with Mr. Monette who was a referee for Mr. Innes but did not contact Mr. Hatcher as he was never Mr. Innes’ supervisor. He contacted instead Mr. Christie who was his supervisor.

34 According to Mr Goulden, the assessment board members did not discuss the choice of referees with the candidates as they believed they did not need the candidates’ permission to use another reference if deemed necessary. The assessment board contacted different referees for 11 candidates, and spoke with their supervisors. It did not tell the candidates or seek their permission beforehand.

35 Each member of the assessment board marked individually the references. They then discussed as a group the “highs and lows” to see if they were justified. They did not review those who were the “middle of the road”. Mr. Goulden believed there may have been “a couple” that changed after they were discussed. There were three candidates, two of them being the complainants, who were eliminated from the process after the reference checks were conducted.

36 With respect to the discrepancy in Mr. Christie’s reference for Mr. Melanson, Mr. Goulden testified that he knew both complainants met the required experience factor. Therefore, he did not question the discrepancy in Mr. Christie’s answer about the number of years he supervised Mr. Melanson. Mr. Goulden does not believe that Mr. Christie intended to mislead him.

37 Mr. Goulden indicated that the assessment board decided not to use the PARs as an assessment tool since they are not reliable and it was not recommended by the Human Resources Officer who was assisting them. In his opinion, the PARs are over inflated and the “yard stick” to assess the employees is not the same for all the areas. He testified that he did not see the complainants’ PARs prior to the hearing.

38 In cross-examination, Mr. Goulden explained that he uses the PARs “to point out the good things to employees”. If he has an area of concern, he does not include it in the PAR but meets with the employee and resolves it outside the PAR process. He stated that his employees’ PARs are over inflated because this is how they are done in the yard and he does not want his employees to be disadvantaged compared to others.

Issues

39 In order to resolve these complaints, the Tribunal must establish if the assessment board abused its authority in the assessment of the complainants’ personal suitability. In particular, the following issues must be determined:

1. Did the assessment board abuse its authority when it contacted referees that were not submitted by the complainants?
2. Did the assessment board abuse its authority when it did not seek other referees or use an alternate method to assess the complainants when negative comments were made about them?
3. Did the assessment board abuse its authority when it did not consider the PARs to assess the candidates?

Arguments of the parties

A) Complainants’ arguments

40 The complainants do not dispute that the successful candidates are qualified and met the essential qualifications as per the Job Opportunity Advertisement on Publiservice. They do not dispute the tools used in the process nor the format of the forms.

41 The complainants believe that Mr. Goulden took down short answers on face value simply because he has respect for those giving the answers, namely Mr. Christie and Mr. Monette.

42 The complainants further believe that Mr. Christie provided very negative references due to the past history he had with each complainant. This resulted in a negative impact and outcome as they were found to be not qualified in the appointment process.

43 In their opinion, Mr. Goulden did not carry out fully the responsibility for the task assigned to him and failed to exercise due diligence in the process. He failed to recognize that Mr. Christie provided very negative references for both of them and did not seek additional information from another referee or use an alternative method of assessment.

44 The complainants argue that Mr. Goulden was not thoroughly familiar with the candidates’ files as demonstrated in the discrepancy in years of service versus years of supervision for Mr. Melanson. Mr. Goulden should have noticed this error and questioned Mr. Christie about it immediately.

45 The complainants allege that there was an abuse of authority by Mr. Goulden and the Deputy Head representative for not being diligent and verifying the negative impact of the referees for the complainants.

46 The complainants further argue that there must be a finding of abuse of authority in their favour and an alternative method of assessment should be considered to verify the information presented.

B) Respondent’s arguments

47 The respondent submits that any inconsistencies between the comments of Mr. Monette and Mr. Christie as referees and their comments on the PARs are not relevant to these complaints. Rather, the Tribunal’s subject matter under review is abuse of authority in the exercise of staffing authority in the appointment process.

48 The respondent argues that the complainants chose not to call Mr. Christie as a witness to explain the perceived inconsistencies between the PARs and his answers as a referee. As such, it believes this would have been the best method to put forth evidence to address this issue.

49 The respondent submits that the PARs are not relevant to the issues before the Tribunal as they were not an assessment tool used in the assessment process. In the alternative, if the Tribunal admits them as evidence, there should be no weight put on them as Mr. Christie and Mr. Tait were not called to testify on their contents.

50 Mr. Goulden explained that the assessment board decided not to use the PARs to assess personal suitability because they are inconsistent from manager to manager. This, argues the respondent, was an appropriate use of the assessment board’s discretion. According to the respondent, the fact that the complainants believe that the PARs should be used as an assessment tool is not a ground for complaint.

51 The respondent argues that the complainants were aware from having read the Job Opportunity Advertisement on Publiservice that reference checks would be sought. The choice to contact references was based on the nature of the required information. Mr. Goulden testified that it was important to hear from a referee who had recently supervised the candidates to assess personal suitability.

52 The respondent states that the complainants basically disagree with the negative comments in the reference checks but agree with the positive ones. It further asserts that the complainants’ remedy that new reference checks be done for this process is not within the Tribunal’s authority under subsection 81(1) of the PSEA.

53 According to the respondent, the complainants provided no evidence to prove that it abused its authority by speaking with persons whose names were not provided by the complainants as referees or by deciding that the personal suitability would be verified by reference checks and not by considering the PARs.

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

55 The respondent submits that the complaints should be dismissed.

C) Public Service Commission’s arguments

56 The Public Service Commission (the PSC) was not present at the hearing, but provided written submissions. It 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.

57 The PSC submitted its document “Checking References: a window into the past” in support of its position that the assessment board did not abuse its authority by contacting other federal government referees who were not provided by a candidate.

Analysis

Issue I: Did the assessment board abuse its authority when it contacted referees that were not submitted by the complainants?

58 Section 36 of the PSEA deals with a deputy head’s authority to determine the assessment method to assess whether a person meets the qualifications for the position:

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).

59 The purpose of this section is to confer to the deputy head and its delegates, the discretion to choose among the available methods for assessing candidates, and to proceed with an appointment based on merit under subsection 30(2) of the PSEA. At different steps in the selection process, the deputy head and its delegates will choose and use various assessment methods, including contacting referees. This discretion to choose an assessment method is not absolute and is subject to recourse as the Tribunal established in Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011.

60 The assessment board decided that each candidate who was successful in the written examination would provide two names for references. The Tribunal finds that the assessment board members acted within their discretion to use this assessment method and limit the references to two per candidate.

61 Mr. Goulden was not satisfied that the names of the referees provided by the complainants were in the best position to assist the assessment board in evaluating the complainants’ personal suitability qualifications: Mr. Gionet supervised Mr. Melanson in 2001 in the private sector and Mr. Hatcher never supervised Mr. Innes. Both complainants omitted Mr. Christie as a reference, despite the fact that he supervises them, because they have a past history of conflicts with him.

62 Mr. Goulden testified that the assessment board members contacted similarly for 11 candidates other referees than the names that they had provided. Thus, the complainants were not the only ones whose referees were not contacted.

63 The Job Opportunity Advertisement specifically stated “reference checks will be sought”. Therefore by applying for the position, the candidates were aware that reference checks would be sought, thereby implicitly consenting to such reference checks.

64 Furthermore, the document entitled “Checking References: a window into the past”, which was submitted by the PSC, addresses the issue of consent and choice of referees. Although this reference document has no legislative authority, it is useful in the present circumstances to understand how the PSC suggests certain aspects of the reference checks process be conducted :

(…) When the reference check is used to assess a qualification other than reliability/security, consent is not required when the referee is from within a federal institution. Consent is required to contact referees from outside the Public Service.

(…)

Given that you want facts and examples, you will contact people who are familiar with the candidate’s work. It is good practice to contact at least two to three people including, in order of importance, the most recent immediate supervisor, former employers who worked closely with the candidate, co-workers, subordinates and clients.

Also check references that were not given by the candidate. This is one way of avoiding talking to “friendly” references.

(Emphasis added)

65 The Tribunal found in Oddie v. Deputy Minister of National Defence et al., [2007] PSST 0030,that there is no requirement to obtain the consent of a candidate to speak to a referee who is within the federal government:

[70] (…) [I]t appeared obvious that the references were to assess the qualifications identified on the Statement of Merit Criteria & Conditions of Employment Notice posted on Publiservice. Therefore, Ms. Adams-Roy did not require the complainant’s consent to speak with Ms. Westfall and Ms. Kelly as they are both within the federal government

See also Dionne v. Deputy Minister of National Defence et al., [2008] PSST 0011, not yet reported.

66 The Tribunal is satisfied that consent was not required from the complainants when Mr. Goulden contacted Mr. Christie because Mr. Christie is the complainants’ supervisor within the Public Service and the assessment board was assessing the personal suitability of the complainants and not their reliability/security.

67 The Tribunal understands that the complainants preferred to have favourable referees speak on their behalf. However, the respondent was entitled to contact their supervisor in order to assess them. Consequently, the Tribunal is of the view that Mr. Goulden did not abuse his authority.

Issue II: Did the assessment board abuse its authority when it did not seek other referees or use an alternate method to assess the complainants when negative comments were made about them?

68 The complainants submit that Mr. Goulden should have asked for examples to explain Mr. Christie’s negative comments which were in contradiction with the PARs he had completed for them. The complainants also submit that Mr. Goulden should have contacted another referee or used an alternate method to assess them given the negative references provided by Mr. Monette and Mr. Christie.

69 The Tribunal’s role is to examine the process used by the assessment board when dealing with the referees. In Oddie, the Tribunal stated:

[66] The Tribunal found in a number of decisions such as in Portree v. Deputy Head of Service Canada et al., [2006] PSST 0014, and Robbins v. the Deputy Head of Service Canada et al., [2006] PSST 0017, that its role is not to redo an appointment process or assess whether the answers were correctly evaluated. The Tribunal’s role is to examine the process used by a deputy head to ensure there is no abuse of authority. In this case, the Tribunal believes that it can review the reference checks’ process and the impact on the decision not to appoint the complainant.

(Emphasis added)

70 Mr. Goulden testified that the assessment board members asked the same questions to all the referees. He further stated that he did not prompt or ask for examples for any of the referees he spoke with. He took notes as accurately as possible and would verify with a referee if he was not certain of the answer. He followed the same process for all the referees with whom he spoke.

71 Mr. Goulden’s role was not to “shop” for favourable or unfavourable references for any candidates. See Portree v. Deputy Head of Service Canada et al., [2006] PSST 0014:

[59] (…). As stated above, the assessment board was in the best position to assess whether they had sufficient information on the complainant. Once the questions are answered for their purposes, an assessment board should not be “shopping” for a favourable or unfavourable reference.

(Emphasis added)

72 In Gilbert V. Commissioner of the Royal Canadian Mounted Police et al., [2007] PSST 0040, the Tribunal explained that an assessment board has the obligation to consider all comments made by referees, both positive and negative:

[60] In its evaluation, the assessment board must consider all comments, both positive and negative, to reach a decision. To accept only positive comments, as the complainant is proposing, might indeed produce the opposite of what Parliament intended. If the assessment board only accepted positive comments, it could rightly be accused of showing some favouritism towards the complainant. The Tribunal is of the opinion that in considering all the comments of the references, the assessment board acted in a reasonable manner, and thus prevented the complainant’s assessment from being marked by favouritism.

73 The Tribunal finds that even though Mr. Christie made a mistake when referring to the number of years he supervised Mr. Melanson, this does not invalidate his reference and does not indicate that his negative comments were false. Mr. Goulden was able to recognize this as merely a mistake. It did not change the fact that he is Mr. Melanson’s immediate supervisor and he was able to assist the assessment board.

74 Mr. Monette also made negative comments about the complainants, such as on their dependability or timekeeping. As well, Mr. Monette testified that he gave examples during the reference checks in support of these comments. It was therefore reasonable for Mr. Goulden to be satisfied with these two reference checks as they were not in contradiction.

75 The Tribunal believes that it is a good practice for an assessment board to ask for examples when doing a reference check. This should be encouraged as it provides the assessment board with a more complete explanation of a referee’s comments, whether positive or negative. It also allows the candidates to understand the rating and perhaps improve or change their work habits. It would therefore have been preferable for Mr. Goulden to seek examples from Mr. Christie, however, in and by itself, it does not constitute an abuse of authority.

76 As the Tribunal stated in Gilbert, disagreeing with the referee’s comment is not evidence by itself of abuse of authority:

[63] The complainant disagrees with the negative comments, which do not, however, constitute abuse of authority. The Tribunal heard the complainant’s testimony in evidence, but that testimony does not prove that the comments were untruthful and made in bad faith, as she alleges. Her evidence on this point is clearly insufficient.

77 The Tribunal finds that the assessment board did not abuse its authority when it did not contact other referees for the complainants or use a different method of assessment.

Issue III: Did the assessment board abuse its authority when it did not consider the PARs to assess the candidates?

78 At the outset of the selection process, the assessment board members decided they would not use the PARs as their Human Resources Officer did not recommend it. They also believed that the PARs are not a reliable method of assessment as they vary from one supervisor to the other. Mr. Goulden went as far as saying that in his opinion, they are over inflated.

79 The Tribunal finds there was no abuse of authority when the assessment board decided not to review the PARs as part of the assessment process. It was within the assessment board’s discretion under section 36 of the PSEA to assess the qualifications without referring to the PARs.

Decision

80 For all these reasons, the complaints are dismissed.

81 The Tribunal wishes to thank the parties for their thorough presentations and professionalism during the hearing.

Sonia Gaal

Vice-Chair

Parties of Record

Tribunal Files:

2007-0225 & 0226

Style of Cause:

Raymond Melanson and Bruce Innes and the Deputy Minister of National Defence et al.

Hearing:

14-15 February 2008
Halifax, N.S.

Date of Reasons:

June 9, 2008

Appearances:

For the complainant:

Lorne Broan

For the respondent:

Lesa Brown