FPSLREB Decisions

Reasons for Decision

Introduction

1The complainant, Jane Turner, believes that the respondent, the Deputy Minister of Citizenship and Immigration Canada (CIC), abused its authority when it made a non‑advertised acting appointment to a PM-06 Policy Officer position. The complainant alleges that the appointment process was neither fair nor transparent. In addition to alleging bad faith, she believes that the appointee, Debra Fox, may have benefited from personal favouritism.

2The respondent claims that this appointment process was based on operational need and not personal favouritism. The respondent believes that it acted reasonably and appropriately in the circumstances.

Background

3From December 2003 until March 2006, the complainant worked with the Global Case Management Systems (GCMS) project – a joint project between CIC and the Canada Border Services Agency (CBSA). In 2006, the GCMS project was coming to an end and CIC established a process to redeploy employees, including the complainant, to other indeterminate positions in CIC or CBSA. In March 2006, the complainant undertook a one-year assignment as a Ministerial Advisor in the Case Management Branch of CIC. During 2006, the Business Solutions Branch of CIC was renamed the Service Improvement Office (SIO).

4Effective September 4, 2007 Debra Fox was appointed on a non-advertised, acting basis to a PM-06 Policy Officer position in the SIO for a period of one year less a day. The complainant was not considered for this position.

5Notice of the acting appointment was published on Publiservice on October 5, 2007. The complaint was filed on October 22, 2007.

Issues

6The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in choosing a non-advertised appointment process?
2. Did the respondent demonstrate personal favouritism in appointing Ms. Fox to the Policy Officer position?

Summary of Relevant Evidence

7The complainant described her employment history in CIC which spans over 30 years and how she became a part of the GCMS project. In 2004, she was working with the GCMS project in Ottawa. Initially, she was on assignment from her substantive position as a PM-05 Operations Manager in the Etobicoke Office. In 2005, she was told that she had to return to Etobicoke or give up her position there. She decided to remain with the GCMS project as she wanted to make sure that the new systems worked as planned. She was deployed to a Business Expert position in the Business Solutions Branch and she continued to work on the GCMS project.

8In 2006, the GCMS project was starting to wind down. On May 10, 2006 an email was sent to the complainant, and other employees requiring redeployment from the project. The complainant had just commenced an assignment in the Case Management Branch as a Ministerial Advisor at the PM-05 level. She was offered the position on an indeterminate basis, but turned it down because she preferred to stay in the redeployment process in the hope of finding a position in Toronto.

9In September 2006, the complainant went on leave and moved to Toronto during her absence from work. On September 22, 2006, Rénald Gilbert, the Director General of SIO, issued an assignment notice offering a number of one to two year assignments.

10According to the complainant, this prompted her email dated November 29, 2006 to SIO Director Donald Pineau. The email read:

Are there any opportunities in your organization for persons to work from a distance? for (sic) example, outside of the office? I’m one of the GCMS orphans and am in search of a position in Toronto. Just thought I’d check re. what creative work solutions might be available in your shop.

11According to the complainant, the purpose of the email was to inquire about teleworking or other opportunities within SIO, but she never received a response to this email. The complainant acknowledged that all the positions in the assignment notice were in Ottawa and that it was her preference to find a job in Toronto.

12The complainant returned to work on March 19, 2007. On that date, she wrote the following email to Mr. Gilbert, which also went unanswered:

I’m seeking a new challenge, and as I was working in Business Solutions before my assignment in Case Management, I write to inquire of current openings in your Branch. I have attached my resume and am available to meet with you at your convenience

13The complainant introduced a series of emails between her and various managers and staff in CIC dated from March 19, 2007 to May 10, 2007. These emails concerned who was responsible for the complainant’s substantive position. In some emails she is told her position belongs to the SIO and in another she is told it belongs to the GCMS project.

14While continuing to look for an indeterminate position, she took an assignment in the Operational Management Coordination (OMC) Branch. She said that there was some debate over who should sign-off on the assignment since no one claimed to “own” her substantive position. Eventually, the GCMS project signed-off for her.

15The complainant testified that she initially filed her complaint in order to get the department to straighten out her personal employment situation. She said that she had “no other way to bring this to the attention of anyone.”

16Following Ms. Fox’s appointment, the complainant met with Mr. Gilbert. When Mr. Gilbert told her that she did not “belong” to his organization, the complainant showed him an SIO organization chart depicting her in a Business Expert (PM-05) position. It also showed Ms. Fox occupying a bilingual position.

17The complainant introduced a letter of offer to Ms. Fox dated April 3, 2006 for a deployment to a bilingual position of Business Expert (PM-05) in the Business Solutions Branch. This concerned the complainant because Ms. Fox was not bilingual and the complainant had been told by a Director named Shirley Holmstrom that there was no flexibility to consider her for bilingual positions.

18The complainant also introduced an email dated November 21, 2007 from the Deputy Minister to all executives (EXs) and middle managers in CIC. The email stated that all EX and supervisory positions were to be filled on a bilingual imperative basis. It stated that exceptions might be possible where, for example, no candidate with the bilingual qualifications was found through an advertised appointment process.

19The complainant introduced an assignment summary for Ms. Fox, which showed she acted in bilingual Manager and Executive Director positions continually from January 2006 until she accepted the Policy Officer position in September 2007. Knowing that Ms. Fox was not bilingual, the complainant said that she was beginning to “feel that something wasn’t right here.”

20On cross-examination, the complainant acknowledged that the letter stated that the position offered to Ms. Fox was bilingual “non-imperative”. She also acknowledged that the organization chart, which showed Ms. Fox in a bilingual position, did not specifically state that the position was to be staffed on a bilingual “imperative” basis.

21The complainant introduced telephone listings for the SIO dated October 10, 2007 and December 20, 2007. According to these listings, Ms. Fox was still in the bilingual position of Deputy Director, e-Continuum, although she was supposed to be in the Policy Officer position at that time. The complainant acknowledged that it was possible that the telephone listings showing Ms. Fox still in the Deputy Director position could have been out of date.

22The complainant said she knew that Ms. Fox would be going on language training shortly after her appointment, and she could not understand why Mr. Gilbert would appoint her to the Policy Officer position for a year when she would not be there to do the job. She stated that she considered herself equally qualified for the position, but she was not considered because Mr. Gilbert told her she was not part of his group.

23According to the complainant, Ms. Fox went on full-time language training in November 2007 and she is still on training. Ms. Fox was recently appointed to a bilingual Manager position on an indeterminate, non-imperative basis. The complainant acknowledged that Treasury Board policy may permit the staffing of bilingual positions on a non-imperative basis, but she maintained that this was still contrary to CIC policy.

24The complainant also acknowledged that she had not qualified in an appointment process for a PM-06 Manager position, but stated that this did not mean that she would not qualify for other PM-06 positions.

25Mr. Gilbert testified for the respondent. He has been the Director General (DG) of SIO since May 2006. The SIO works on electronic services, service standards and business processes for CIC. Four Director positions report to him and the PM-06 position at issue reports to one of the Directors.

26Mr. Gilbert has completed a two-day training course on the Public Service Employment Act (PSEA), and has delegated staffing authority. He stated that the SIO was created from the Business Solutions Branch. When he arrived, the SIO had ten positions and eight people. In 2006 and 2007, he did a significant amount of staffing, mostly for term positions because SIO was intended to be a temporary organization. However, he now has a budget of three million dollars and approval to staff more people on an indeterminate basis.

27When Mr. Gilbert assumed the DG position, Ms. Fox was one of three PM-05s acting in Deputy Director, PM-06 positions. The title Deputy Director has since been changed to Manager. Ms. Fox reported to an Executive Director, Michael Rooney. This title has since been changed to Director. Mr. Rooney retired in the summer of 2007, and Ms. Fox acted in his position until a replacement was appointed in the fall.

28Mr. Gilbert testified that he was not aware that the complainant had ever been part of the SIO. He was aware that she had worked in the Operational Management Coordination Branch and in the Minister’s office, but he only became aware she was part of the SIO after she filed her complaint. He said that he asked Human Resources to look into the file in February or March 2008.

29Two new Policy Officer positions were created in the fall of 2007. Mr. Gilbert appointed Ms. Fox to act in one of the positions because the Director and Deputy Director were both new, and the other experienced officer, Ms. Weber, was away on language training. He chose a non-advertised appointment process because of the uniqueness of the e-application project and because few people had experience with it. He felt that Ms. Fox was the right fit because she had worked on the project in 2006 and 2007 and she had done a good job when she was acting as Director. The appointment was for one year, subject to Ms. Fox going on French language training. He did not know how long Ms. Weber would be away and he wanted to “avoid running a time-consuming appointment process.” Ms. Weber returned from language training earlier than expected, and it became possible to send Ms. Fox on language training in November 2007.

30Mr. Gilbert stated that he was satisfied that the assessment of Ms. Fox against the SMC was “proper” and he signed it on September 5, 2007.

31Mr. Gilbert also indicated that he was familiar with Mr. Pineau’s written rationale for the non-advertised appointment dated November 27, 2007. He testified that e‑application was a key project at the time, and that an experienced person was needed. He testified that he might be able to take a different approach today because he now has an experienced Director.

32Mr. Gilbert stated that he did not recall responding to the complainant’s email of March 19, 2007 inquiring about openings in the Business Solutions Branch (now SIO). Furthermore, he could not recall if he thought the email was in response to his call for assignments in the fall of 2006.

33Mr. Gilbert explained that Ms. Fox had been entitled to language training since her deployment to the Business Expert position, but it had been postponed because of operational needs. When Ms. Weber returned from language training earlier than expected it was possible to send Ms. Fox on language training. Mr. Gilbert further testified that Ms. Fox’s non-imperative, bilingual deployment to the PM-05 Business Expert position occurred in April 2006, before he became DG and before the Deputy Minister’s email of November 21, 2007.

34Mr. Gilbert testified that his relationship with Ms. Fox is a professional relationship.

35Mr. Pineau testified on behalf of the respondent. Mr. Pineau is the Director of Service Modernization and Governance in CIC. He has been with CICin various manager and director positions since 1994. He has taken a number of courses on staffing under the PSEA, including delegation training. Prior to CIC, he spent 12 years at the National Capital Commission.

36Mr. Pineau joined the SIO in August 2006. When he arrived, Ms. Fox was acting Deputy Director (PM-06). Mr. Pineau testified that, shortly after he arrived, SIO created two Policy Officer positions. The language requirements for these positions were established as English essential. Ms. Fox was appointed on an acting basis because SIO did not have many indeterminate positions at that time.

37Mr. Pineau testified that the Policy Officer position was responsible for the e‑application project, which was a “flagship” project with tight deadlines. They wanted to maintain continuity on this project and the call letter that was sent out in September 2006 did not produce any suitable candidates. Therefore, it was logical to appoint Ms. Fox on a non-advertised basis. Mr. Pineau referred to a number of sections in the SIO Human Resources Plan which indicated that the majority of staff would be on assignment as opposed to indeterminate appointments.

38Mr. Pineau considered Ms. Turner’s email to him of November 29, 2006 as an expression of interest from someone outside of his organization; there was nothing in the email to suggest that she was part of SIO.

39Mr. Pineau stated that he drafted, for Mr. Gilbert’s approval, the assessment of Ms. Fox against the SMC. In preparing the assessment, he had Ms. Fox’s curriculum vitae, feedback on her performance from colleagues, and he was personally familiar with some of her work.

40Mr. Pineau acknowledged that Ms. Turner was part of the SIO when he arrived, but he testified that he did not realize it until later on. He said that he did not consider Ms. Turner when he staffed the Policy Officer position because he did not know, at that time, that she was part of the SIO. He admitted that it “absolutely would have been useful to know” that she was part of the SIO.

41Mr. Pineau said that if he knew Ms. Turner was in the SIO in the summer of 2007, he “would have had to consider who was eligible,” but only Ms. Fox had the required experience for the Policy Officer position. The only expression of interest he had from Ms. Turner for a position in SIO was her email of November 29, 2006 in which she said she was looking for a position in Toronto. SIO has no positions in Toronto.

42Mr. Pineau testified that even if Ms. Turner was paid out of SIO’s A-base budget, he would not necessarily know that she was part of SIO because the budget is in dollars with no names attached to it. He stated that the SIO was a fast growing organization, composed of casual staff, contractors and people on assignments and secondments. There was a constant flow of people, and it was possible for them to pay Ms. Turner’s salary without knowing she was part of the group.

43Mr. Pineau acknowledged that the PM-06 level is, among other classifications, a feeder group for executive positions. He disagreed that the opportunities given to Ms. Fox, namely the opportunity to act in PM-06 positions and to receive language training, was part of a plan to “groom” Ms. Fox for an executive position.

44Mr. Pineau confirmed that Ms. Fox acted in the Executive Director position seven times between July 24, 2006 and March 9, 2007. He explained that these acting appointments were necessitated by Mr. Rooney’s pre-retirement leave and were generally of short duration. Some of the appointments were for as little as three or four days. He also noted that all of these acting appointments took place before the Deputy Minister’s email of November 21, 2007, which stated that all EX and supervisory positions were to be staffed on a bilingual imperative basis.

45In terms of the decision to send Ms. Fox on language training, Mr. Pineau explained that the commitment to language training in her deployment letter of April 2006 was dependant on operational requirements. In April 2008 she was on language training but the two-year period had expired and she could no longer remain in the bilingual position, so they deployed her to an English essential position. Nevertheless, they had made a commitment to send her on language training and it “made sense” to let her finish her training. Ms. Fox was not favoured because this training started when she was in a bilingual position.

46Mr. Pineau stated that his relationship with Ms. Fox is that of a professional colleague.

Arguments of the parties

A) Complainant’s arguments

47The complainant submits that the respondent used multiple appointments into positions with differing titles, position numbers, qualifications and linguistic profiles to confuse and disguise its actions which favoured Ms. Fox. This included acting appointments to positions for which she did not meet the language requirements.

48Furthermore, at no time did the respondent consider the complainant for positions in the SIO, stating that it was not aware that she was part of the SIO. The respondent acknowledged its error at the hearing; her name and position were shown on an organization chart dated November 19, 2007.

49She also submits that she was not considered for any positions because Mr. Gilbert and Mr. Pineau had decided to further Ms. Fox’s career through extensive acting appointments and full-time language training.

50The complainant submits that the respondent’s actions represent both bad faith and favouritism. The respondent demonstrated bad faith by failing to acknowledge that the complainant belonged to SIO and to consider her for positions in the SIO. It demonstrated favouritism through a series of irregular non-advertised acting appointments that amounted to career advancement opportunities for Ms. Fox at the expense of other employees.

51The complainant relies on Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, to argue that the preamble is an integral part of the PSEA, and the core values must be taken into account. The complainant submits that the respondent abused its authority under three of the categories of abuse outlined in Tibbs, namely:

• When a delegate exercises his/her/its discretion with an improper intention in mind.
• When a delegate acts on inadequate material.
• When there is an improper result.

52With respect to the first form of abuse, the complainant listed Ms. Fox’s deployments and appointments from 2006 – 2008, including her acting appointments to the bilingual Manager and Executive Director positions. She noted that Ms. Fox never performed the duties of the bilingual Business Expert position which gave rise to her entitlement to language training and that she went on language training less than three months after the commencement of her acting appointment in the Policy Officer position. She also noted that Ms. Fox continued on language training after she was redeployed to an English essential Business Expert position. The complainant argues that it was an abuse of authority for the respondent to keep Ms. Fox on language training when her substantive PM-05 position was not bilingual, and to continue paying her at the PM-06 level for the Policy Officer position when she was not performing the duties of that position.

53Furthermore, the complainant challenges the respondent’s rationale for Ms. Fox’s acting appointment to the Policy Officer position. The respondent appointed Ms. Fox to the Policy Officer position to offer expertise to the newly arrived Acting Director because the other employee working on e-Applications, Ms. Weber, was on language training. The complainant argues that since Ms. Weber was acting in a PM-05 position, Ms. Fox could have provided her expertise from her substantive PM-05 Business Expert position.

54With respect to the second form of abuse, acting on inadequate material, the complainant argues that she was in the area of selection but was deliberately overlooked. There were emails from human resources staff and organization charts that showed the complainant was part of the SIO. The complainant noted that the respondent’s witnesses claimed that they had various organization charts that differed from those presented by the complainant, but that none of these charts were introduced into evidence. She argues that the respondent’s position that Mr. Gilbert and Mr. Pineau only found out that she was part of the SIO after she filed her complaint, lacks credibility. Mr. Gilbert should have known, given the small size of his staff, that the complainant was an employee of SIO. According to the complainant, he chose to ignore her while favouring Ms. Fox.

55Regarding the third from of abuse, when there is an improper result, the complainant argues that Ms. Fox should never have been deployed into the bilingual Business Expert position in April 2006, and should not have acted in the other bilingual positions, as she did not meet the language requirements for them. The complainant referred to the Deputy Minister’s email of November 27, 2007 stating that EX and supervisory positions were to be filled on a bilingual imperative basis. She submits that Ms. Fox’s acting appointments to the bilingual Manager position are contrary to section 15 of the Public Service Employment Regulations, SOR/2005-334 (the PSER), since she acted in the position for a period in excess of 12 months, save for her periodic acting appointments to the bilingual Executive Director position.

56The complainant relies on Cameron and Maheux v. Deputy Head of Service Canada et al., [2008] PSST 0016, at paragraph 57, to argue that circumstantial evidence can support a finding of abuse of authority. The complainant believes that given all the irregularities associated with the appointments of Ms. Fox, a reasonable person should conclude that Ms. Fox was advantaged and the complainant was disadvantaged. Furthermore, the complainant argues that the favouritism towards Ms. Fox continues as she remains on language training despite the fact she no longer occupies a bilingual position.

57The complainant states that this case is very similar to Robert and Sabourin v. Deputy Minister of Citizenship and Immigration et al., [2008] PSST 0024.

B) Respondent’s arguments

58The respondent submits that section 33 of the PSEA provides the deputy head with discretion to use an advertised or non-advertised process. The complainant cannot allege that there was an abuse of authority simply because a non-advertised process was chosen. The complainant must prove that the decision to use a non-advertised process was an abuse of authority. Robbins v. the Deputy Head of Service Canada et al., [2006] PSST 0017, paragraph 35; Kilbray and Wersch v. Deputy Head of Service Canada et al., [2007] PSST 0049, paragraph 77; and, Clout v. Deputy Minister of Public Safety and Emergency Preparedness et al., [2008] PSST 0022, paragraph 34.

59The respondent submits that the use of a non-advertised appointment process was justified as per the written rationale, SIO Human Resource Plan, and the testimony of Mr. Gilbert and Mr. Pineau. The complainant acknowledged that Ms. Fox possessed the specialized knowledge required for the position.

60The respondent also argues that the PSEA provides no automatic right for an employee to be considered in any appointment process. Furthermore, Mr. Gilbert testified that even if he had known that the complainant was an employee of SIO, he would not have changed his decision to appoint Ms. Fox by way of a non-advertised appointment process.

61The respondent also argues that the complainant’s submission that she was in the area of selection is false. Under section 34(1) of the PSEA, the deputy head determines the area of selection for an appointment process and, in the case of this non-advertised appointment process; Ms. Fox was the only person in the area of selection.

62The respondent submits that the complainant’s assertion that her response to the call for interest was never considered is misleading. Mr. Pineau testified that he did not consider the complainant’s request because the call for interest was for positions in Ottawa and the complainant indicated she was interested in positions in Toronto.

63According to the respondent, the complainant’s argument that the preamble of the PSEA supports the core principles and values of merit, fairness, transparency and access is also misleading. The term “access” is found in Public Service Commission (PSC) policy, but not in the preamble to the PSEA.

64The respondent contends that this case can be easily distinguishable from Robert and Sabourin. In that case, the appointee was found not to have met the language requirements for the position. In this case, there is no question that Ms. Fox met the English language requirements for the Policy Officer position. As well, Cameron and Maheux can be distinguished since, in that case, there was evidence that there were other qualified employees available for the position. There is no evidence in this case that there were other qualified employees.

65There is also no evidence, according to the respondent, that the complainant was qualified for the position at issue. The complainant admitted that she had applied for, but had not been found qualified, for the indeterminate PM-06 Policy Officer position.

66With respect to the allegation of personal favouritism, the respondent argues that the complainant must demonstrate that the respondent abused its authority under section 30(2) of the PSEA. The respondent relies on Carlson-Needham and Borden v. Deputy Minister of National Defence et al.,[2007]PSST 0038, in arguing that the complainant must prove, on a balance of probabilities, that the person was appointed because of personal favouritism based on factors other than merit. The respondent also relies on Glasgow v. Deputy Minister of Public Works and Government Services Canada et al.,[2008]PSST 0007, to argue that it must be personal favouritism to constitute abuse of authority. The respondent submits that Ms. Fox’s appointment history does not support a finding of personal favouritism. The complainant has submitted no evidence to contradict the testimony of Messrs. Gilbert and Pineau that they have a purely professional relationship with Ms. Fox and that her appointment to the PM-06 Policy Officer position was because she was qualified for the position.

67Similarly, the respondent argues that there is no evidence before the Tribunal that an employee must occupy a bilingual position in order to qualify for language training. Messrs. Gilbert and Pineau testified that, for operational reasons, Ms. Fox had not been allowed to attend language training during her two-year, bilingual non‑imperative appointment to the PM-05 position. However, management did not want to deprive Ms. Fox of the opportunity to attend language training so she was allowed to go when operational requirements permitted. Operational requirements changed when the new director, Mike Floyd, had settled into his role and another employee, Ms. Weber, returned early from language training. The respondent submits that there is no evidence that the decision to send Ms. Fox on language training was tainted by bad faith, improper motivation or that it constituted some kind of reward for Ms. Fox.

C) Public Service Commission’s arguments

68The PSC submits that it is not taking a position on whether there was abuse of authority in this case.

69The PSC’s Policy on Choice of Appointment Process provides that the deputy head must: (1) establish and communicate criteria for the use of non-advertised processes; and, (2) ensure that a written rationale demonstrates how a non-advertised process meets the established criteria and the appointment values.

70The PSC is satisfied that the deputy head met the first requirement.

71The PSC submits that the deputy head did not fully comply with the second requirement because the written rationale did not demonstrate how the choice of non‑advertised process was consistent with departmental criteria. According to the PSC, the written rationale fell short in the following respects:

• Although it may have been implicit, there was no mention of criterion 4(h), permitting a non-advertised acting appointment for up to 12 months;
• The written rationale did not fully explain how the decision to use a non-advertised process was consistent with the HR plan;
• There was no explanation of how the appointment met the appointment values of access, fairness and transparency.

72The PSC also noted that the written rationale is dated November 27, 2007, almost three months after the appointment commenced. The PSC submits that if the written rationale is created at the time the appointment is made, this can increase the sense of fairness and transparency.

73Notwithstanding the above, the PSC states that for a breach of a PSC policy to constitute abuse of authority, the breach must be the result of improper intention such as bad faith or personal favouritism or such serious recklessness or carelessness that bad faith can be presumed.

D) Rebuttal Arguments of the Complainant

74The complainant argues that, contrary to the arguments of the respondent, the Human Resources Plan did not support a non-advertised process in this case.

75Furthermore, the complainant challenges the respondent’s position that the acting appointment was necessary until such time as an advertised process for an indeterminate PM-06 Policy Officer position had been completed. The PM-06 position cited by the respondent is for a Manager position in Operational Management and Coordination not a Policy Officer position in SIO. The appointment process for the PM‑06 Manager position has no relevance to this case.

76The complainant submits that although Ms. Fox might have had the specialized experience and knowledge required for the Policy Officer position, the complainant testified that other employees had similar qualifications, including employees on language training.

Relevant Legislation and Policies

77The following provisions of the PSEA are relevant:

2. (4) For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.

16. In exercising or performing any of the Commission’s powers and functions pursuant to section 15, a deputy head is subject to any policies established by the Commission under subsection 29(3).

29. (3) The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.

30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.

(2) An appointment is made on the basis of merit when

1. the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and
2. the Commission has regard to
   1. any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
   2. any current or future operational requirements of the organization that may be identified by the deputy head, and
   3. any current or future needs of the organization that may be identified by the deputy head.

[...]

(4) The Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit.

33. In making an appointment, the Commission may use an advertised or non-advertised appointment process.

34. (1) For purposes of eligibility in any appointment process, other than an incumbent-based process, the Commission may determine an area of selection by establishing geographic, organizational or occupational criteria or by establishing, as a criterion, belonging to any of the designated groups within the meaning of section 3 of the Employment Equity Act.

53. (1) A deployment is not an appointment within the meaning of this Act.

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

[...]

(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process;

78The following provision of the PSER is relevant:

15. (1) Subject to subsection (2), an acting appointment of four months or more but not more than twelve months to an encumbered bilingual position that the Commission cannot fill with an acting appointment of a person who meets the language proficiency qualificationunder paragraph 30(2)(a) of the Act is excluded from the application of that paragraph respecting official language proficiency.

(2) Subsection (1) does not apply to an acting appointment to the same position if the cumulative period of the acting appointments of all persons in that position is more than twelve months.

79The following sections of PSC and CIC policies on the Choice of Appointment Process are relevant:

PSC Policy on Choice of Appointment Process

Policy Statement

The choice of advertised or non-advertised, and internal or external, appointment processes is consistent with the organization’s human resources plan and the core and guiding values.

[...]

Policy Requirements

In addition to being accountable for respecting the policy statement, deputy heads must:

• establish and communicate criteria for the use of non-advertised processes; and
• ensure that a written rationale demonstrates how a non-advertised process meets the established criteria and the appointment values.

CIC Criteria for Non-Advertised Appointment Process

2.1 The choice of non-advertised appointment process must be consistent with:

1. The Branch/Regional Human Resources Operational Plan;
2. The departmental criteria;
3. The PSC and the departmental policies on Choice of Appointment process; and
4. The appointment values of fairness, access and transparency.

2.2 Managers must provide a written rationale demonstrating how the non-advertised appointment process is consistent with the above requirements. A written rationale must be prepared by the manager and kept on the staffing file. [...]

4. Internal Non-advertised Appointment Process

An internal non-advertised appointment process may be used in the following circumstances:

[...]

(h) Acting appointment for up to 12 months.

Analysis

Issue I: Did the respondent abuse its authority in choosing a non-advertised appointment process?

80In its written arguments, the respondent submitted that the complainant was not in the area of selection for the Policy Officer position. The Information Regarding Acting Appointment published on Publiservice states that the Area of Selection includes: “Employees of Citizenship and Immigration Canada within the Service Improvement Office in the National Capital Region.” The respondent’s witnesses acknowledged in their respective testimony that the complainant was part of the SIO in the NCR when this appointment was made. Accordingly, the Tribunal finds that the complainant was in the area of selection.

81In this case, the essence of the complainant’s argument is that the respondent demonstrated bad faith by failing to consider her for the Policy Officer position. The complainant submits that the respondent knew or should have known that the complainant was, in fact, a part of the SIO at the time of the non-advertised appointment and should have considered her for the position.

82The difficulty with the complainant’s argument is that, under the PSEA, there is no obligation for the respondent to have considered her even if Mr. Gilbert and Mr. Pineau had known that she was part of SIO at the time of this non-advertised appointment. As the Tribunal explained in Robert and Sabourin, when it determined that the evidence failed to establish abuse of authority in the choice of appointment process:

[58] The complainant argues that the respondent was not transparent in this appointment process and should have considered other employees. However, managers have the discretion to choose between an advertised and non-advertised process under section 33 of the PSEA and considering only one person is expressly authorized under subsection 30(4).

83As the Tribunal has explained in a number of decisions, this discretion is not absolute. It must be exercised in accordance with the legislative purpose of the PSEA.

84According to the testimony of Mr. Gilbert, he used a non-advertised appointment process to appoint Ms. Fox because of the uniqueness of the e-application project and because few other people had experience with it. The fact that the Director and Deputy Director were new also had an influence on his decision. Mr. Pineau testified that the e‑application project was a “flagship” project with tight deadlines and that it was important to maintain continuity on the project.

85This testimony is consistent with the written rationale for the appointment, which states:

The decision to appoint Debra to an acting position was to ensure continuity in the major, and critical, e-Application project for which she has assumed lead responsibility. This decision was taken at a time when a new A/Director assumed responsibility for the e-Business Division as of September 3, 2007 and required Debra’s expertise and contribution at the PM-06 level.

[...]

...The branch needs to ensure stability in key assignments to maintain a measure of continuity for projects under SIO responsibility. Debra’s knowledge of, and contribution to the e-Application project has been critical over recent months.

86The Tribunal finds that the respondent’s written rationale failed to properly comply with either its own or the PSC Policy on Choice of Appointment Process. As the Tribunal explained in Robert and Sabourin:

[69] ... Under subsection 29(3) of the PSEA, the PSC may establish policies respecting the manner of making appointments. Pursuant to section 16 of the PSEA, deputy heads are subject to these policies. Contrary to the respondent’s submission, this is not merely a question of policy; there is a clear obligation under the PSEA for deputy heads, and their delegates, to comply with PSC policies established under subsection 29(3).

87First, the written rationale did not specifically state one of the criterion being relied on to justify the use of a non-advertised process, namely an acting appointment for up to 12 months. While not set out in the written rationale, the Tribunal finds on the evidence that Ms. Fox’s acting appointment to the Policy Officer position was for a period of 12 months less a day. Therefore, the respondent’s failure in this regard, while careless, was not a seriously careless omission.

88The second error was the failure to indicate in the written rationale that the non‑advertised appointment was consistent with the SIO’s Human Resources Plan. The Human Resources Plan was submitted into evidence, but the testimony around the plan was primarily concerned with whether or not it demonstrated that the complainant was part of the SIO. The respondent argued that the Human Resources Plan supported the non-advertised appointment of Ms. Fox to the Policy Officer position, but while the Plan supports temporary and acting appointments, no evidence was submitted that the Plan supports the use of non-advertised appointments.

89In addition, the Tribunal finds that the respondent failed to explain how the appointment met the appointment values, which are requirements of both PSC and CIC policy, and the preamble of the PSEA. Furthermore, the respondent did not complete the written rationale until November 27, 2007, almost three months after the appointment commenced.

90As the Tribunal has recently stated in Beyak v. Deputy Minister of Natural Resources Canada et al., [2009] PSST 0007:

[126] The recourse available for those concerned that the exercise of discretion in choosing between an advertised and a non-advertised process did not respect fair and transparent employment practices is a complaint of abuse of authority under paragraph 77(1)(b) of the PSEA.

91The importance of the written rationale cannot be overstated. As the Tribunal succinctly explained in Robert and Sabourin, at para. 71:“... the written rationale is one of the important ways in achieving transparent employment practices.” This does not necessarily mean, however, that a delay in producing the written rationale will lead to a finding of abuse of authority. See Morris v. Commissioner of Correctional Services et al., [2009] PSST 0009.

92A delay of almost three months in signing off on the written rationale is unacceptable. It is a significant omission and it is understandable that such a delay can fuel speculation as to motive. Unlike in Robert and Sabourin, the written rationale was eventually provided. No evidence was presented at the hearing as to why there was such a significant delay in signing the written rationale. It certainly demonstrates carelessness, but there is insufficient evidence for the Tribunal to find such serious carelessness amounting to bad faith. The Tribunal notes, however, that this is the second time where the evidence establishes a failure in this department to produce written rationales or to produce them in a reasonable time frame.

93While there were a number of errors and omissions that occurred in this appointment process, the Tribunal does not consider that they are of such serious carelessness or recklessness as to constitute bad faith. The Tribunal finds that the complainant has not established that in choosing a non-advertised appointment process, the respondent failed to exercise its discretion in accordance with the legislative purpose of the PSEA. While the errors and omissions identified above are troubling, and must be rectified in future processes, the Tribunal is not satisfied that the complainant has proven, on a balance of probabilities, that there has been abuse of authority in choosing between an advertised and non-advertised appointment process.

Issue II: Did the respondent demonstrate personal favouritism in appointing Ms. Fox to the Policy Officer position?

94The Tribunal addressed the issue of personal favouritism in Glasgow:

[39] [...] It is noteworthy that the word personal precedes the word favouritism, emphasizing Parliament’s intention that both words be read together, and that it is personal favouritism, not other types of favouritism, that constitutes abuse of authority.

[...]

[41] [...] Undue personal interests, such as a personal relationship between the person selecting and the appointee should never be the reason for appointing a person. Similarly, the selection of a person as a personal favour, or to gain personal favour with someone else, would be another example of personal favouritism.

95More recently, in Beyak, the Tribunal identified additional examples of personal favouritism:

[185][...] Preparing a work description that does not reflect the actual duties of the position to ensure a higher classification and therefore a higher salary in order to reward an employee is personal favouritism. Establishing the essential qualifications of the position and assessing an employee to ensure his or her appointment without regard to the actual requirements of the position is also personal favouritism. Appointing an employee who does not meet the essential qualifications of a position because the manager wants to reward that employee also constitutes personal favouritism.

96According to the complainant, the staffing decisions concerning Ms. Fox, namely the deployment to a bilingual Business Expert (PM-05) position, and the various acting appointments as Manager (PM-06) and Executive Director (EX-01), reflect a pattern of behaviour that was designed to advance the career of Ms. Fox at the expense of others and, thus, constitutes personal favouritism contrary to section 77 of the PSEA.

97The position of the respondent is that the appointments of Ms. Fox were based on her experience, specialized qualifications and the operational requirements of the SIO.

98The Assignment Summary for Ms. Fox shows that she acted continuously in the PM-06 Manager position from January 10, 2006 to September 4, 2007, the continuity broken only by her occasional acting appointments in the (EX-01) Executive Director position. Although she was deployed to the bilingual Business Expert position on April 3, 2006, it does not appear that she ever performed the duties of that position. Her acting appointment to the Manager position was interrupted seven times when she acted in the Executive Director position for periods of from four to 60 days.

99The complainant’s allegations of personal favouritism are directed towards Mr. Gilbert and Mr. Pineau. As the deployment of Ms. Fox to the bilingual Business Expert position occurred before either of them arrived in SIO, the deployment is not relevant to the allegations of personal favouritism against them. Furthermore, Ms. Fox’s initial acting appointment to the Manager position occurred before Mr. Gilbert arrived at the SIO. The Assignment Summary confirms this. Two of the extensions of this acting appointment occurred after he became Director General. Similarly, Ms. Fox was acting in the Manager position when Mr. Pineau joined the SIO. One of the extensions of the acting appointment took place after he joined SIO.

100The Manager position reported to the Executive Director, Michael Rooney. It is not uncommon for an employee to act in his or her immediate superior’s position when the superior is away. Most of the acting appointments were of a short duration. In some cases as little as four or five days. The longest appointment occurred following the retirement of Mr. Rooney and continued until he was replaced. Ms. Fox then ceased to act in the position. In and of themselves, the acting appointments of Ms. Fox to the Executive Director position do not demonstrate personal favouritism. Ms. Fox’s acting appointment in the Manager position did provide a launching pad for her to act in the Executive Director position. However, the evidence shows that Ms. Fox was acting in the Manager position for a number of months before Messrs. Gilbert and Pineau arrived in the SIO. No evidence was presented concerning the circumstances that led to Ms. Fox’s original acting appointment to the Manager position, or that Mr. Gilbert or Mr. Pineau played a role in it.

101The complainant also argues that Ms. Fox’s acting appointments to the bilingual Executive Director and Manager positions were contrary to CIC policy with respect to bilingual appointments, and are part of the pattern of personal favouritism. In support of this allegation she cites an email from the Deputy Minister dated November 21, 2007. However, all of the Manager and Executive Director appointments took place before this email was issued. The email states that it results from an Executive Committee meeting held to “re-examine” the language issue and “reiterates” an earlier decision, but no evidence was submitted concerning the details of any earlier decision or when it became effective. There is simply no evidence that these appointments were the result of personal favouritism rather than operational requirements, as is argued by the respondent.

102The complainant also relies on the Tribunal’s decision in Robert and Sabourin, which involves an acting appointment in the Case Management Branch within CIC. In that case, the Tribunal found that the respondent had committed a number of serious errors and omissions. One of the errors was the respondent’s decision to a make a non-advertised appointment of a person who did not meet the language proficiency qualification to a Ministerial Advisor position. The respondent had argued that no one else was interested and qualified. The Tribunal found, however, that there were at least four persons who were bilingual, otherwise qualified and interested in the position. The Tribunal concluded that this error, when taken as a whole with other errors and omissions, constituted abuse of authority.

103In Robert and Sabourin, the language requirement for the position at issue was bilingual. However, for the Policy Officer position that is the subject of this complaint, the language requirement is English essential. There is no dispute that Ms. Fox met this language requirement.

104The complainant also submits that the respondent’s decision to permit Ms. Fox to remain on language training and to continue to be paid as a PM-06 after she was redeployed to a unilingual PM-05 Business Expert position is improper and constitutes circumstantial evidence of personal favouritism. Mr. Pineau testified that operational requirements prevented Ms. Fox from going on language training until November 2007. When her two-year period to become bilingual ended in April 2008, she was deployed to an English language position, but it was decided to leave her on language training because a commitment had been made to her when she was appointed to the bilingual position. There is no evidence that the respondent lacked the authority to make this decision or that it was based on personal favouritism. The evidence, in fact, is that aprior commitment was made to Ms. Fox before Mr. Gilbert or Mr. Pineau arrived in the SIO.

105In Cameron and Maheux, the Tribunal found that the appointment was not based on merit. However, the complainant has not established that the appointment of Ms. Fox was not based on merit. On the contrary, the weight of the evidence leads to a finding that Ms. Fox was appointed on the basis of merit and, thus, the legislative purpose of the PSEA was met in this case. In fact, the complainant concedes that Ms. Fox is qualified.

106Both Messrs. Gilbert and Pineau testified that their respective relationships with Ms. Fox are professional. There is no evidence to refute this testimony. There is also no evidence that Ms. Fox failed to meet the essential qualifications for the position.

107The Tribunal finds that the complainant has not established, on a balance of probabilities, that Ms. Fox’s appointment was the result of personal favouritism.

Decision

108For all of these reasons, the complaint is dismissed.

Kenneth J. Gibson

Member

Parties of Record

Tribunal File:

2007-0544

Style of Cause:

Jane turner and the Deputy Minister of Citizenship and Immigration Canada et al.

Hearing:

January 6 and 7, 2009
Ottawa, ON

Date of Reasons:

July 10, 2009

Appearances:

For the complainants:

Fred Sadori

For the respondent:

Lesa Brown

For the Public
Service Commission:

John Unrau