FPSLREB Decisions

Reasons for Decision

Introduction

1 Michael Burke filed a complaint under section 77 of the Public Service Employment Act, S.C. 2003, c.22, ss. 12 and 13 (the PSEA) alleging that he was not appointed to the position of Underwater Weapons Systems Electronic Technologist (UWW Technologist) by reason of an abuse of authority by the respondent, the Deputy Minister of the Department of National Defence (DND). The position is located in Halifax, Nova Scotia.

Issue

2 To resolve this complaint, the Tribunal must decide the following issue:

Did the respondent abuse its authority by amending the Statement of Merit Criteria (SMC) after the assessment of candidates, and when it determined that the appointee, Robert Jeannot, met the essential qualification “acceptable current experience in the technical support and maintenance of submarine underwater weapons systems”?

Background

3 In 2006, the DND Fleet Maintenance Facility Cape Scott (FMF Cape Scott) had a number of vacant Electronic Technologist positions at the EL-06 group and level. Management decided to conduct a collective staffing process to fill these vacancies. In August 2006, DND posted a job opportunity advertisement on Publiservice for an internal advertised appointment process (06-DND-IA-HALFX-052717) for four types of positions – Command and Control Systems Technologist, Surveillance and Electronic Warfare Technologist, Underwater Systems Electronic Technologist, and Above Water Weapons Systems Technologist. Essential qualifications for all positions included: education requirements; significant experience in three areas of electronic systems; ability to communicate; and, six personal suitability traits.

4 In addition, there were a number of asset qualifications listed on the SMC which were specific to each of the positions being staffed. The qualification in contention in this complaint read, when the position was advertised, as follows: “Acceptable experience in the technical support and maintenance of under water weapons systems”.

5 Candidates for the position of UWW Technologist were assessed for this experience qualification based on their applications, additional supporting documentation and the board members’ personal knowledge of candidates. At the suggestion of LCdr Watters, the common member on each of the assessment boards, a matrix to assess this experience was developed. This matrix outlined five criteria:

6 Candidates were assessed for each criterion on a scale from one to five. If a candidate achieved an overall average rating of three (15/25), he proceeded to the next phase of the evaluation. Three candidates were found to have this specific experience and were further assessed by means of an interview. All three candidates were qualified for the UWW Technologist position. Mr. Jeannot was found to be the right fit for the position, since he obtained the highest marks for those qualifications assessed during the interview, namely: the ability to communicate; effective interpersonal skills; motivation; reliability; judgement; adaptability; and teamwork.

7 On March 5, 2007 candidates were informed that the SMC had been amended to more accurately reflect the essential and asset qualifications established by the delegated manager, Ian Cobb, prior to posting the job opportunity advertisement. Critical experience for each type of position had been inadvertently listed as an asset qualification when it was, in fact, essential for the position. The Public Service Commission (PSC) recommended that the respondent amend the SMC to reflect this. Accordingly, an amended SMC was issued and the following essential qualification was listed for UWW Technologist positions: “Acceptable current experience in the technical support and maintenance of submarine under water weapons systems” (emphasis added).

8 On March 12, 2007 candidates were notified that Mr. Jeannot was being considered for appointment. On March 27, 2007 notification that he was being appointed was posted on Publiservice.

Summary of Relevant Evidence

9 Brad Smith was called as a witness by the complainant. He stated that he had been an UWW Technologist for the past 18 or 19 years. He was asked to participate as a member of the assessment board for the UWW Technologist position by his supervisor, Mr. Cobb, Underwater Systems Engineer, at the point when the matrix for the UWW Technologist position was being developed. He also fully participated in the assessment of candidates for the position.

10 Mr. Smith stated that the word “submarine” was added to the experience qualification to more accurately reflect the experience required for the position. While both submarine and surface vessels have underwater weapons systems, specific experience with submarine underwater weapons systems was required.

11 The first criterion in the experience matrix was “Current Multi-Platform Multi-System Experience.” This refers to experience in submarines (VIC vessels), and surface vessels (HFX/IRO vessels). To achieve a rating of five in this area, a candidate required “extensive VIC and HFX/IRO” experience. When asked what his definition of extensive was, Mr. Smith replied that extensive for the VIC class vessels would be one to two years. It would be longer for HFX/IRO because the HFX/IRO platforms had been around for 30 years, whereas the VIC submarines had only been around five to six years. Mr. Smith testified that there is a significant difference in the equipment on the different platforms. The VIC class vessels have more extensive equipment. In answer to the question of how the board defined acceptable experience, Mr. Smith stated that it was determined by the matrix but, as a ball park figure, they required one to two years of submarine experience. Both the complainant and the appointee received a mark of five in this area.

12 If a candidate received a rating of 15/25 or more on the matrix he could then go on to the interview. Thus, the experience qualification was used as a screening tool. All three candidates who were considered for this position received above the minimum rating of 15/25, and advanced to the interview.

13 After the complaint was filed, Mr. Smith compiled a list of the equipment trials in which the appointee had participated, while working with Mr. Smith in the Underwater Weapons Engineering Unit. This occurred between January and September 2005. The work outlined in the list had been done on two VIC class vessels.

14 On cross-examination, Mr. Smith stated that what was assessed by the assessment board was the asset qualification as outlined in the original SMC, namely: “Acceptable experience in the technical support and maintenance of under water weapons systems.” He then explained what information in the appointee’s résumé the assessment board took into account to determine that he had acceptable experience in underwater weapons systems. The assessment board also used their personal knowledge of the appointee’s experience while he was working with Mr. Smith and Mr. Cobb in the Underwater Weapons Engineering Unit from January to September 2005.

15 The complainant also called the appointee, Mr. Jeannot, as a witness. Mr. Jeannot stated that, prior to this appointment process, he was a Naval Electronics Technician (Acoustic) with the Canadian Forces for 22 years. In this position, he was trained to maintain and install electronics on all underwater weapons systems, navigational systems, and helicopter safety systems. As he moved through the ranks, he acquired experience on various radar systems, communication systems, electronic warfare systems, sonars, echo sounders and command and control systems. He had not served on a submarine while in the Canadian Forces.

16 Mr. Jeannot acknowledged that there were Naval Weapons Technician positions in the Canadian Forces; persons employed in these positions maintained weapons such as torpedos, 57 mm gun, missiles and decoy systems.

17 Mr. Jeannot identified his experience with UWW systems in his application by stating that he was “responsible of (sic) the installation, maintenance and trialing of Sonar and Navigation Equipment onboard HMCShips/Submarines . . .” He had also listed the equipment that he had worked on that was specific to underwater weapons. As well, he listed the trials he conducted with Mr. Smith, which included trials on hydrofoil tiles, pressure tanks and the blue barge in Bedford Basin.

18 Mr. Jeannot acknowledged that he had been on holidays during August 2005 and had started working in the Combat Naval Engineering Unit in September 2005.

19 Mr. Cobb testified on behalf of the respondent. He has worked for 25 years at FMF Cape Scott. He has been the Underwater Systems Engineer and head of the unit for the past 21 years. He supervises about 14 people in the Underwater Systems Engineering Unit.

20 According to Mr. Cobb, underwater weapons system refers to the collection of equipment that detects, classifies, and locates targets, selects the torpedo to shoot and, if necessary, guides the torpedo to its target. These weapons can be either on ships or on submarines.

21 Mr. Cobb had one vacant Technologist position in his unit. He was involved, with the other supervisors, in setting the essential qualifications to be used in the collective staffing process. He was asked to chair the assessment board for the position in his unit only. The board was composed of LCdr Watters, Mr. Smith, and Mr. Cobb.

22 Once candidates were assessed for certain common qualifications (education and experience with electronic systems), they were put into streams, according to their work experience. The assessment board developed the matrix based on the work description for the position. There were five main experience elements (see paragraph 5 above). Candidates needed to have experience in engineering support of submarines, engineering trials and installation. The rating scale was from one to five, one being a low rating and five indicating a highly experienced candidate. The board considered the candidates’ applications and résumés. They chose three candidates, and then asked them to provide further written details of their “acceptable experience in the technical support and maintenance of underwater weapons systems” by identifying their employer, the nature of the work, and the challenges faced.

23 The three candidates were assessed using this documentation, their applications, and board members’ personal knowledge of the candidates. Mr. Cobb knew both the complainant and the appointee.

24 Mr. Cobb was asked to explain the change in the SMC. He stated that, when the respondent requested priority clearance for the appointment in January 2007, the PSC expressed concern; the PSC was of the view that the respondent was applying an asset qualification as if it were essential. Since the assessments of the experience qualification had already been completed, the PSC suggested that the respondent amend the SMC by changing the asset qualification to an essential qualification. For this position, two words were also added to the qualification: the need for current experience; and, the need for submarine underwater weapons experience. Mr. Cobb stated that these changes were made to reflect the essential qualification that he determined was required for this position.

25 The only position to be staffed was a submarine position. Although there are some surface vessels with underwater weapons, the engineering unit works mostly on submarine weapons systems. “Current” meant that candidates’ experience had to be on existing vessels. According to Mr. Cobb, candidates had already been assessed for acceptable current experience with submarine underwater weapons systems, so there was no need to reassess candidates. The error was found at the end of January, but as the board was doing interviews, no one got around to changing the qualification until March. All candidates were notified of the change to the SMC on March 5, 2007.

26 With respect to the appointee’s submarine experience, the board considered the time he had worked in the Underwater Weapons Engineering Unit from January to September 2005, and the time he had worked in the Combat Naval Engineering Section from September 2005 to November 2006, as the equipment he worked on there interfaces with the underwater weapons. By way of explanation, Mr. Cobb stated that, without navigational input into the system, the weapons systems cannot function, as a submarine has to know the location of the target as well as its own location. The assessment board rated the appointee as having considerable current multi-platform and multi-system experience (“extensive VIC class only OR extensive HAL/IRO plus some VIC”), and gave him a rating between four and five. However, since the board did not award part marks, the appointee received five. The complainant had extensive experience on both platforms and was also awarded a rating of five.

27 With respect to the fifth criterion, variety of current systems repaired maintained, the complainant was awarded a rating of five, even though he did not have experience in sonar systems. Mr. Cobb testified that 75 to 80% of the work of the position is with sonar systems. Mr. Burke had really good experience in other areas and, therefore, was awarded the highest rating for this criterion.

28 On cross-examination, Mr. Cobb indicated that UWW systems are all part of the tactical weapons systems. This includes surveillance and electronic warfare systems, communications and navigation systems and underwater weapons, which all complement the submarine systems. On page two of Mr. Jeannot’s application, he had stated that he was responsible for the installation, maintenance and trials of Sonar and Navigation Equipment on HMC Ships/Submarines including Arma Brown, NCS1 Gyros, Doppler Speed Log Systems and Global Positioning Systems. According to Mr. Cobb, this was all part of submarine underwater weapons systems.

29 In terms of the third criterion, “conduct of trials,” Mr. Cobb stated that Mr. Jeannot had conducted trials on more than one vessel and, thus, was given a rating of four in this area. He had done trials on a submarine fire control system, had done ship trials (510) and CANTASS. The assessment board was looking for experience in the conduct of trials. This did not necessarily have to be submarine trials.

30 While Mr. Jeannot did not lead the trials in the sense that he did not sign off on the trial, Mr. Cobb stated that everyone who is involved takes part and “conducts” a trial. While only one person signs off on a trial, it could be that the other participants do most of the work. Conducting trials usually refers to the whole group who carried out the trial.

31 The final selection of Mr. Jeannot was based on the assessment of his ability to communicate and personal suitability qualifications (effective interpersonal skills, motivation, reliability, judgement, adaptability and teamwork), which were evaluated through an interview. Mr. Jeannot received 64 marks, while Mr. Burke received 54 marks for these qualifications.

Arguments of the parties

A) Complainant’s arguments

32 The complainant alleges that the respondent abused its authority in the application of merit. When it realized its error in using as asset qualifications those which were essential to the positions being staffed, it re-issued the SMC in order to salvage the process. At the same time, the respondent clarified the experience requirement by adding the words current and submarine UWW systems to reflect the original intent of Mr. Cobb. However, no further assessment was conducted to ensure that the three candidates being considered all had current experience with submarine UWW systems.

33 The matrix did not reflect what Mr. Cobb said was his original intent. If what was sought was submarine experience, the assessment board should not have given equal value for VIC and HFX/IRO vessels in the matrix.

34 According to the complainant, it is clear that Mr. Jeannot did not have the experience required. He had not worked on submarines during his career in the Canadian Forces. Yet, he had been awarded five marks for current multi-platform, multi-system experience. The matrix clearly stated that to warrant five marks, a candidate would need extensive VIC (submarine) and HFX/IRO (ship). Mr. Smith had testified that a candidate would have to have one to two years on a VIC vessel, or two to three years on a HFX/IRO vessel to have extensive experience in this area. Mr. Jeannot had six months experience on submarines in the UWW Engineering Unit.

35 The third factor in the matrix was conduct of trials. Mr. Cobb testified that this did not have to be experience in submarine trials. However, the qualification was current experience with submarine UWW systems and, therefore, it was reckless of the manager not to require the trials to be on submarine equipment.

36 Furthermore, the matrix required that the candidate lead or coordinate trials on a few major systems in order to receive a mark of four in this area, which was the mark awarded to Mr. Jeannot. Mr. Cobb testified that the appointee had assisted Mr. Smith in a number of trials. A mark of three required that the candidate “has lead (sic) at least once or assisted in several UW Systems”, while a mark of two was awarded if the candidate “assisted with a few UW Systems”. Clearly, the matrix made a distinction between leading and assisting on trials, and to award Mr. Jeannot a mark of four was unreasonable.

37 In summary, while the assessment board established their criteria for experience in the matrix, they did not apply them. Mr. Jeannot did not have one to two years experience on submarine UWW systems.

B) Respondent’s arguments

38 The respondent argues that it did not abuse its authority in amending the SMC after candidates had been assessed. The respondent admits that it erred in listing as asset qualifications requirements which were essential to each specialty. It consulted the PSC, who suggested that it amend the SMC and inform all candidates of this change. According to the respondent, the assessment of experience was not affected by this change. The words “current” and “submarine” merely clarified the experience that the board had already assessed.

39 In terms of the assessment of Mr. Jeannot’s experience, the respondent referred to the decisions of the Tribunal in Visca v. Deputy Minister of Justice et al., [2007] PSST 0023, and Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011,which, according to the respondent, highlight the broad discretion managers have to establish the qualifications for positions, and to choose the assessment methods to determine if a person meets the established qualifications.

40 Mr. Cobb, the manager, had spent 25 years in his position as Underwater Systems Engineer. He was the person with the best understanding of the duties of the position, and he approved the matrix which was used to assess candidates’ experience. It is not the role of the Tribunal, or the complainant, to reassess candidates. The role of the Tribunal is to examine the appointment process overall to determine if there has been an abuse of authority. The assessment board considered the information provided by the candidates and the board members’ personal knowledge of the candidates. The board concluded that both the complainant and the appointee had the requisite experience. In the final assessment, Mr. Cobb determined that Mr. Jeannot was the right fit for the position based on his personal suitability and his communication skills.

Analysis

41 A number of serious errors were made in this appointment process, both in establishing the merit criteria and in their application. The issue for the Tribunal, then, is whether these serious errors constitute abuse of authority. In Robert and Sabourin v. Deputy Minister of Citizenship and Immigration et al., [2008] PSST 0024, the Tribunal held that bad faith could be inferred from serious carelessness or recklessness in the exercise of authority:

[91] In Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, [2004] S.C.J. No. 31 (QL), the Supreme Court found that it is not necessary to show intentional fault in order to establish bad faith, and that the latter should be interpreted more broadly to include serious carelessness or recklessness. The Supreme Court held as follows, at paragraph 39 (QL version):

39. These difficulties nevertheless show that the concept of bad faith can and must be given a broader meaning that encompasses serious carelessness or recklessness. Bad faith certainly includes intentional fault, a classic example of which is found in the conduct of the Attorney General of Quebec that was examined in Roncarelli v. Duplessis, [1959] S.C.R. 121. Such conduct is an abuse of power for which the State, or sometimes a public servant, may be held liable. However, recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed. The act, in terms of how it is performed, is then inexplicable and incomprehensible, to the point that it can be regarded as an actual abuse of power, having regard to the purposes for which it is meant to be exercised (Dussault and Borgeat, supra, vol. 4, at p. 343). […]

[92] Having reviewed this series of acting appointments of Ms. Gomes and the multiple errors and omissions by the respondent, the Tribunal concludes that the delegated manager acted with such serious carelessness as to constitute bad faith. Therefore the Tribunal finds that the respondent abused its authority by acting in bad faith and by appointing a person who did not meet all of the essential qualifications for the position.

42 Subsection 2(4) of the PSEA states that “… abuse of authority shall be construed as including bad faith and personal favouritism.”

43 The Tribunal will first examine the errors made by the respondent in this appointment process.

(a) The amendment of qualifications

44 Amending the SMC after the assessment of candidates has already been completed, and without reassessing the candidates using the new SMC, is a fundamental error in an appointment process. Depending on the circumstances, this may well lead to a substantiated complaint of abuse of authority. Assessment boards need to know what qualifications they are to evaluate, and candidates have a right to know what essential qualifications are being assessed for a particular job opportunity. As the Tribunal has explained in Neil v. Deputy Minister of Environment Canada et al., [2008] PSST 0004:

[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 (…)

45 The evidence in this case is that experience qualifications, specific to each position, were mistakenly established as asset qualifications in a collective staffing process, in order to stream candidates into positions for which they had experience. Once candidates were assessed for education and the common experience qualifications, they were placed in streams for specific positions. Three candidates, including the complainant and the appointee, were identified as potential candidates for the UWW Technologist position and were asked to submit further documentation to show how they met “acceptable experience in the technical support and maintenance of under water weapons systems”. After the assessment of experience specific to each type of Technologist position was completed, the respondent was advised by the PSC that these qualifications should have been designated as essential, because they were necessary to perform the duties of the specific position.

46 The Tribunal accepts the explanation of Mr. Cobb that the SMC was amended in order to clarify for the candidates that the “asset” qualification was, in fact, essential to the UWW Technologist position being staffed. Had the respondent made only that change, and advised candidates immediately, the error would not have been serious.

47 However, the respondent went further. It changed the wording of the experience qualification by adding current and submarine. At the hearing, the respondent did not provide a satisfactory explanation as to why these words were added. While Mr. Cobb insisted that he was merely clarifying the experience originally requested and assessed, the evidence does not support this.

48 The respondent compounded its mistake in this case by failing to notify candidates at the time the change was decided on, namely, in January 2007. The complainant and appointee were interviewed in February 2007 to assess other qualifications. Candidates were not notified of the amendment to the SMC until March 5, 2007. This was quickly followed by the notification of consideration for appointment of Mr. Jeannot only one week later.

49 Mr. Cobb’s explanation that “nobody got around to changing the SMC until early March 2007” demonstrates carelessness. The SMC is the fundamental document on which candidates are assessed and, where mistakes have been made, candidates should be informed immediately of any changes. The result of waiting so long to inform candidates, not surprisingly, resulted in suspicions that the change was made to favour a specific candidate.

50 The Tribunal finds that adding the words current and submarine to the experience qualification was a significant change to the qualification. This could be a fundamental error if those changes were not assessed by the assessment board.

(b) The Assessment Tool

51 The assessment board developed a detailed and elaborate matrix in order to assess candidates’ experience. Both board members present at the hearing testified that this was the tool used to assess candidates. On the evidence the Tribunal concludes that this tool was flawed, in that it could not assess what it purported to, namely “acceptable current experience in the technical support and maintenance of submarine under water weapons systems.”

52 Mr. Cobb testified that what had been assessed in December 2006 was “submarine” underwater weapons systems experience. However, if one looks at the first criterion in the matrix, it is possible for a candidate to receive an acceptable rating of three for multi-platform multi-system experience, without having any submarine experience. If what was really required was submarine UWW experience, then the criterion should have reflected this.

53 Similarly, the evidence of the respondent was that the conduct of trials, the third criterion in the matrix, did not have to be trials on submarine underwater weapons systems. Again, if what was being assessed was submarine UWW experience, logic dictates that it would be conduct of trials on submarines.

54 The Tribunal finds, based on the evidence, that the respondent did not assess the essential qualification set out in its amended SMC. While no logical explanation was given for the addition of the word submarine to the SMC, it is clear that this was not what the matrix assessed.

55 The addition of the word current to the experience qualification was not a contentious issue at the hearing. Mr. Cobb testified that the board considered current to be experience on existing ships. The fact that some HAL/IRO ships have been used by the respondent for 20 years would seem to render Mr. Cobb’s definition of “current” non-sensical. Given this definition, a candidate could have experience from 15 or 20 years ago and this would still be considered “current”. Although there is no evidence that candidates lacked recent or up-to-date experience, it is an indication of carelessness on the part of the assessment board.

56 The Tribunal finds that the assessment tool was flawed in that it did not assess what it purported to, that is, acceptable current experience in the technical support and maintenance of submarine underwater weapons systems.

(c) The assessment of merit

57 Even though the assessment board created an elaborate matrix for the assessment of experience, after reviewing the evidence, the Tribunal finds that the assessment board was very careless in applying the criteria when it assessed the appointee and the complainant. For example, it awarded Mr. Jeannot five marks for current multi-platform multi-system experience, which was defined as extensive VIC and HFX/IRO. Based on the evidence presented at the hearing, it is clear that the board did not apply its own criteria when it assessed Mr. Jeannot’s multi-platform multi-system experience.

58 Similarly, in the category conduct of trials, the board members testified that there was no distinction between leading and assisting on a trial. However, the rating scale on the matrix makes a clear distinction between marks to be awarded for assisting and those for leading/coordinating trials. To have considerable experience in the conduct of trials (a rating of four), candidates had to “lead/coordinated on a few major systems such as SFCS, 510, etc.” The evidence shows clearly that the assessment board did not apply its own criteria when it assessed Mr. Jeannot with respect to conduct of trials.

59 Similarly, Mr. Cobb noted that the complainant was awarded a rating of five for the fifth criterion of “variety of current systems repaired maintained” in the matrix, and yet Mr. Cobb stated that Mr. Burke did not have experience in sonar systems. Mr. Cobb went on to testify that 75-80% of the UWW work dealt with sonar systems. While Mr. Cobb explained that the complainant had really good experience in other areas, it is incomprehensible that a candidate would receive a perfect rating without experience in such an important system as sonar. The Tribunal finds that the board was seriously careless in this rating as well.

60 All of this points to the pitfall of establishing such an elaborate and rigid set of criteria and ratings instead of assessing the candidate on the actual qualification established, “acceptable current experience in the technical support and maintenance of submarine underwater weapons systems.”

61 The Tribunal finds that the assessment board did not properly apply the criteria they set out in their matrix. Consequently, the Tribunal cannot conclude that the assessment of candidates is reliable. The complainant has alleged that Mr. Jeannot is not qualified for appointment. The respondent has not provided reliable evidence to establish that the appointee meets the essential experience qualification.

62 Appointments must be made on the basis of merit, in accordance with subsection 30(1) of the PSEA. The person appointed must meet all of the essential qualifications for the work to be performed. As the Tribunal held in Rinn v. Deputy Minister of Transport, Infrastructure and Communities et al., [2007] PSST 0044:

[35] Merit now relates to individual merit where the person to be appointed must meet the essential qualifications for the work to be performed. There is considerable flexibility in selecting the person to be appointed; however, the fundamental requirement in appointing a person on the basis of merit is that the person must be qualified for the position.

[38] Subsection 30(1) of the PSEA clearly states that appointments shall be made on the basis of merit. Subsection 30(2), in turn, sets out the criteria for making an appointment on the basis of merit. (…) Recourse under paragraph 77(1)(a) of the PSEA addresses this appointment issue, namely, whether an appointment or proposed appointment is made on the basis of merit. It is not a matter of an improper intention. If the appointee does not meet the essential qualifications then, regardless of intent, it is not an appointment based on merit. As explained in Tibbs, supra:

[74] (…) It could not have been envisioned by Parliament that, for example, when a manager unintentionally makes an appointment that leads to an unreasonable or discriminatory result, there would be no recourse available under the PSEA. When a manager exercises his or her discretion, but unintentionally makes an appointment that is clearly against logic and the available information, it may not constitute bad faith, intentional wrongdoing, or misconduct, but the manager may have abused his or her authority.

63 In this case, the Tribunal concludes that the respondent was reckless in carrying out this appointment process. It established a qualification which was then changed by the addition of two words. No satisfactory explanation was provided for this change. Candidates were not reassessed after this significant amendment to the qualification. The assessment tool used was not capable of assessing the qualification. In addition, the board was reckless in its assessment of candidates, because it did not apply the criteria it had established in its matrix. The assessment does not provide a sound basis for concluding that the appointee is qualified for appointment.

64 The Tribunal concludes that the respondent acted with such serious recklessness as to constitute bad faith. The Tribunal finds the respondent abused its authority in this appointment process.

Decision

65 For all these reasons, the complaint is substantiated.

CORRECTIVE ACTION

66 The Tribunal’s authority with respect to corrective action is found at subsection 81(1) of the PSEA, which reads as follows:

81. (1) If the Tribunal finds a complaint under section 77 to be substantiated, the Tribunal may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate.

67 The complainant requests that the appointment be revoked as he believes the appointee is not qualified for the position.

68 Since the respondent has not established that the appointee is qualified for appointment, the Tribunal orders that the deputy head revoke the appointment.

Helen Barkley

Member

Parties of Record

Tribunal File:

2007-0175

Style of Cause:

Michael Burke and the Deputy Minister, Department of National Defence et al.

Hearing:

February 19-20, 2008
Halifax, Nova Scotia

Date of Reasons:

February 9, 2009

Appearances:

For the complainant:

Lorne Brown

For the respondent:

Amita Chandra