FPSLREB Decisions

Reasons for Decision

Introduction

1The respondent, the Deputy Minister of National Defence, believes that the Public Service Staffing Tribunal (the Tribunal) lacks jurisdiction to hear this complaint. The respondent contends that the complainant, Thomas Dayton, was not an unsuccessful candidate at the time of his complaint. The complainant opposes the respondent’s motion to dismiss the complaint. He believes that his complaint was filed on time; alternatively, he claims that the respondent’s failure to properly notify him constitutes an extenuating circumstance.

Background

2An internal advertised appointment process (08-DND-IA-ESQ-304747) was conducted to fill approximately 20 positions in the Ship Repair Management sub-group (SR-MGT-01) in seven different production groups – GM 1-7. Candidates were instructed to indicate on their applications the group or groups for which they wished to be considered.

3The complainant indicated in his application that he wished to be considered for positions in production groups GM3, GM4 and GM6.

4On June 16, 2008 the complainant received a letter from Judith Murty, Civilian Human Resources Officer, informing him that the assessment board had determined that he had failed to meet one of the essential knowledge qualifications for these positions. As a result, he would not be considered further in the appointment process. The letter also informed him that notifications related to the appointment process would be sent to him by email.

5On July 16, 2008 the complainant and others were sent an email by Francine Viger, Civilian Human Resources Recruitment Assistant, informing them that notifications of appointments and proposed appointments would be issued on Publiservice. The email provided them with the Publiservice website, and informed them how they could register for personalized email updates to their home or work email address.

6Notifications of appointments or proposed appointments for positions in the GM2 and GM7 production groups were posted on Publiservice on August 5 and 6, 2008.

7The complainant filed his complaint pursuant to paragraphs 77(1)(a) and (b) of the Public Service Employment Act, S.C. 2003, c.22, ss.12, 13 (the PSEA) on August 6, 2008.

8Notices of appointments or proposed appointments for positions in the GM3, GM4 and GM6 production groups were posted on Publiservice on August 11, August 25 and August 28, respectively.

9An oral hearing scheduled for June 8 and 9, 2009 was cancelled. Under subsection 99(3) of the PSEA, the Tribunal decided to consider the motion by way of a paper hearing, and invited the parties to provide written submissions and supporting documentation on the motion. The complainant and respondent provided written submissions; the Public Service Commission chose not to make submissions.

Relevant Legislative Provisions

10Subsections 77(1) and (2) of the PSEA are relevant:

77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

1. an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);
2. an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process;

[...]

(2) For the purposes of subsection (1), a person is in the area of recourse if the person is

1. an unsuccessful candidate in the area of selection determined under section 34, in the case of an advertised internal appointment process;

[...]

(Emphasis added)

11The Tribunal’s mandate is found in subsection 88(2) of the PSEA: “The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83.”

12Sections 5 and 10 of the Public Service Staffing Tribunal’s Regulations, SOR/2006-6 (the Tribunal’s Regulations) are relevant:

5. The Tribunal may, in the interest of fairness, extend any time specified in these Regulations.

10. A complaint by a person may be made to the Tribunal

1. except where paragraph (b) applies, no later than 15 days after the day on which the person receives notice of the lay-off, revocation, appointment or proposed appointment to which the complaint relates; and
2. if the notice of the lay-off, revocation, appointment or proposed appointment to which the complaint relates is a public notice, no later than 15 days after the date of the notice.

Issues

13The Tribunal must determine the following issues:

1. Does the Tribunal have jurisdiction to consider the complaint?
2. Does section 5 of the Tribunal’s Regulations apply?

Arguments of the parties

A) Respondent’s arguments

14The respondent argues that to file a complaint of abuse of authority under section 77 of the PSEA, a person must be in the area of selection and an unsuccessful candidate. While the respondent concedes that the complainant was within the area of selection, it contends that the complainant was not an unsuccessful candidate at the time of his complaint. Thus, according to the respondent, the complainant was not in the area of recourse.

15The respondent relies on Hagerty v. President of the Canada Border Services Agency et al., [2007] PSST 0036, in support of its position that a complainant’s right to file a complaint is determined in the context of each notification, not within the overall context of an appointment process. In this case, the complainant submitted his complaint on August 6, 2008. At that time, no notifications of appointment or proposed appointment had been posted for the production groups for which he had submitted his application. Notifications had only been posted for positions in production groups GM2 and GM7. The complainant cannot be considered an unsuccessful candidate for those positions because he had not submitted an application for them.

16According to the respondent, the complainant filed his complaint in relation to notifications of appointments or proposed appointments for which he was not a candidate.

B) Complainant’s arguments

17The complainant admits that his application only identified GM3, GM4 and GM6 positions. However, he argues that section 10 of the Tribunal’s Regulations provides that a complaint may be made to the Tribunal no later than 15 days after the day a person is notified of the appointment or proposed appointment to which the complaint relates. He states that his complaint was filed on August 6, 2008 and the notification with respect to GM3 positions was posted on August 11, 2008. Since the 15-day period to file a complaint did not end until August 26, 2008, his complaint was not late.

18In the alternative, the complainant argues that he had not filed his complaint on time because the respondent had misinformed him. He relies on the letter from Judith Murty dated June 16, 2008 in which he was advised as follows: “Notifications related to this appointment process will be sent to you by e-mail.” He submits that the respondent “never lived up to that promise.” The respondent should have sent a corrective email stating that they would not be advising him of appointments by email. According to the complainant, “When it became clear that the Employer was making appointments without the promised email Notifications, I submitted my Complaint at once, hoping to not miss the window of opportunity.”

19The complainant submits that the respondent’s failure to live up to its promise constitutes an extenuating circumstance. Accordingly, the Tribunal should, in the interest of fairness, use its authority under section 5 of the Tribunal’s Regulations to include appointments to GM3 positions within the scope of the complaint.

Analysis

Issue I: Does the Tribunal have jurisdiction to consider the complaint?

20A person’s right to file a complaint concerning an internal appointment process is governed by section 77 of the PSEA. As the Tribunal held in Hagerty, at paragraph 10: “Under section 77 of the PSEA, an unsuccessful candidate in an internal advertised appointment process has the right to complain that he or she was not appointed or proposed for appointment by reason of abuse of authority.”

21In Hagerty, the Tribunal further determined:

[12] With each notification of one or more appointments or proposed appointments, there is a corresponding right to file a complaint to the Tribunal under the PSEA. Therefore a complainant’s right to file a complaint is determined in the context of each notification, not within the overall context of an appointment process.

22The complainant filed his complaint on August 6, 2008. Notifications for appointments or proposed appointments for positions in the GM2 and GM7 production groups were posted on Publiservice on August 5 and 6, 2008. The complainant admits that he did not apply for positions in these groups. Therefore, he was not an unsuccessful candidate in these appointments and he was not in the area of recourse. Accordingly, he had no right to file a complaint with respect to these appointments.

23The notifications of appointments or proposed appointments concerning the positions that he had applied for, namely GM3, GM4, and GM7, were posted on Publiservice on August 11, 25 and 28, 2008 respectively. However, he did not file complaints following the notifications of these appointments.

24The notices of appointment posted on Publiservice are public notices and paragraph 10(b) of the Tribunal’s Regulations applies. The Tribunal finds that the respondent provided proper notice of the appointments and it was incumbent on the complainant to file his complaints within the time limits prescribed by paragraph 10(b) of the Tribunal’s Regulations.

25The Tribunal found in MacDonald v. Deputy Head of Service Canada et al., [2006] PSST 0002, that the time for filing is a strict time limit. The Tribunal has also established in its jurisprudence that a complainant cannot file a complaint in anticipation of an appointment or proposed appointment under the PSEA. In Czarnecki v. Deputy Head of Service Canada et al., [2007] PSST 0001, the Tribunal found the following:

[14] The Tribunal finds that a complainant’s right to file a complaint pursuant to section 77 of the PSEA is subject to the preliminary condition that there must be an appointment or proposed appointment in an internal appointment process and, subsequently, “that he or she was not appointed or proposed for appointment.” Logically, a person cannot complain that he or she was not appointed or proposed for appointment if this has not taken place yet.

[...]

[18] [...] None of these sections can be interpreted as providing that an employee may file a complaint in anticipation of an appointment or proposed appointment. On the contrary, grammatically, it only makes sense that the appointment or proposed appointment must precede the filing of a complaint.

26As well, a complaint cannot be held in abeyance pending the completion of the appointment process. An employee’s right to file a complaint is conditional on an appointment or proposed appointment having been made. See Tennant v. President of the Canadian International Development Agency et al., [2007] PSST 0006.

27The complaint was premature, and the Tribunal does not have jurisdiction to consider it.

Issue II: Does section 5 of the Tribunal’s Regulations apply?

28The complainant requests that the Tribunal exercise its authority under section 5 of the Tribunal’s Regulations to include appointments to GM3 positions within the scope of his complaint. The request is based on “extenuating circumstances,” namely the failure of the respondent to fulfill a commitment to inform him by email of notifications of appointments or proposed appointments in relation to the appointment process.

29The respondent informed the complainant in its letter of June 16, 2008 that notifications related to this appointment process would be sent to him by email. The respondent subsequently sent an email to the complainant, and other candidates, on July 16, 2008 informing them that notifications would be posted on the Publiservice website. The letter also informed candidates how they could arrange to have the notifications sent to their home or work email addresses.

30The Tribunal finds that the July 16, 2008 email was a clear, reasonable and timely communication to the complainant regarding how he could keep himself informed of notifications related to the appointment process. The Tribunal finds that this email was in no way misleading and does not qualify as an exceptional circumstance to warrant the granting of an extension of time.

31There is no evidence that the complainant was at any disadvantage in terms of his ability to access information regarding notifications of appointments or proposed appointments. Moreover, there is no evidence that the notifications posted on Publiservice were improper.

32In Hagerty, the Tribunal stated:

[11] Subsection 48(3) of the PSEA requires that those who have the right to file a complaint are informed that an appointment has been made or proposed. A notification made under subsection 48(3) starts the period in which a complaint can be made to the Tribunal under section 77, and section 10 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 sets the deadline for making a complaint.

33Since the August 11, 2008 notification for the GM3 appointments was posted on Publiservice, the complainant had 15 days from that date - until August 26, 2008 - to file a complaint; (See, e.g.: Suàrez v. Deputy Minister of Human Resources and Social Development Canada et al., [2007] PSST 0008, at paragraph 20). The complainant has not filed a complaint regarding this notification or notification of any of the GM4 or GM7 appointments for which he was in the area of recourse.

34Proper notification of the appointment was given by publication on Publiservice and, therefore, it was the responsibility of the complainant to file his complaints within the required time limits. As the Tribunal found in Casper v. Deputy Minister of Citizenship and Immigration Canada et al., [2006] PSST 0010, at paragraph 25, complainants are responsible “to ensure that they are fully aware of the time limits and procedures applicable to the Tribunal’s complaint process.” It is not the responsibility of the respondent or the Tribunal to contact complainants to ensure that they file their complaints within the required time limit.

35The complainant has not filed a timely complaint concerning those appointments for which he was in the area of recourse and has not provided extenuating circumstances to support an extension of the time limit to file a complaint. In the circumstances presented here, section 5 of the Tribunal’s Regulations does not apply.

Decision

36For these reasons, the motion to dismiss is granted. The complaint is dismissed.

Kenneth J. Gibson

Member

Parties of Record

Tribunal File:

2008-0555

Style of Cause:

Thomas W. Dayton and the Deputy Minister of National Defence et al.

Hearing:

Paper Hearing

Date of Reasons:

July 3, 2009