FPSLREB Decisions

Reasons for Decision

Introduction

1The complainant, Martine Guimond, alleges abuse of authority in the application of merit in appointments to storekeeper positions and, more particularly, that one of the operational requirements was not assessed.

2The respondent, the Deputy Minister of National Defence, submits that the appointments in this process were based on merit and that the appointed persons met the established essential qualifications. The respondent distinguishes the essential qualifications from the operational requirements, and argues that the latter were considered.

Background

3In November 2006, the Department of National Defence announced processes for indeterminate appointments to six storekeeper positions, group and level GS-STS-04 (#06-DND-MNTRL-IA-056165) at 25 Canadian Forces Supply Depot (CFSD), Department of National Defence, Montréal.

425 CFSD consists of a main warehouse, one-third of which can accommodate military equipment to a height of 60 feet, and has nine turret trucks that can reach up to that height. 25 CFSD has about 75 employees in group and level GS-STS-04. Fewer than one in five works on the turret trucks. In a working day, eight employees on the day shift work on the turret trucks, and six on the night shift, for a total of 14.

5A total of 36 candidates applied for the positions in question, including the complainant. Following the written test, 22 candidates, including the complainant, met all the essential qualifications for the six positions available.

6The essential qualifications were identified in order of importance in the statement of merit criteria. They were as follows:

• Knowledge of procedures and work methods related to warehouse operations;
• Knowledge of warehouse safety rules;
• Knowledge of mathematical calculations;
• Ability to work as a member of a team;
• Knowledge of the Canadian Forces supply system;
• Knowledge of the computer systems in use at 25 CFSD; and
• Ability to communicate effectively in writing.

[Translation]

7The six candidates with the highest scores in the assessment of the seven essential qualifications listed above received an offer of appointment. The complainant was not one of the candidates with the highest scores in the assessment of the essential qualifications, and was not given an indeterminate appointment.

8The merit criteria also included operational requirements, including the ability to work at heights up to 60 feet. None of the candidates was assessed in relation to this operational requirement.

9On April 11, 2007, a notification of proposed appointment was posted to the Publiservice website, announcing that six persons had been appointed on an indeterminate basis as a result of the appointment process.

10On April 25, 2007, the complainant filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under subsection 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA). She states that one of the operational requirements, namely the ability to work at heights up to 60 feet, was not assessed.

Issue

11The Tribunal must determine the following issue:

Did the respondent abuse its authority by not assessing the operational requirement of ability to work at heights up to 60 feet?

Arguments of the parties

A) Complainant’s arguments

12According to the complainant, merit criteria include essential qualifications, additional asset qualifications, operational requirements and organizational needs. If the respondent goes so far as to identify an operational requirement, it must at least assess it. Consequently, there had to be an assessment to determine whether candidates met the requirement of ability to work at heights up to 60 feet, which was not done in this case.

13The complainant argues that the failure to assess this operational requirement means that the respondent took it for granted that the candidates met it. The respondent assumed that the candidates were able to work at heights up to 60 feet.

14The complainant believes that subsection 30(2) of the PSEA is clear: for an appointment to be made on the basis of merit, the conditions set out in paragraphs 30(2) (a) and (b) must be satisfied.

15Since the respondent did not assess the operational requirement, it abused its authority. The failure to assess the operational requirement constitutes an abuse of authority by the respondent within one of the five categories established by Jones and de Villars (see: David Phillip Jones and Anne S. de Villars, Principles of Administrative Law (Toronto: Thomson Carswell, 2004)).

B) Respondent’s arguments

16According to the respondent, the requirement to be able to work at heights up to 60 feet is one of the operational requirements it considered. An operational requirement is not an essential qualification. Parliament established a distinction, and that distinction must have a meaning.

17The respondent argues that the subdelegated manager has discretion in setting the essential qualifications and identifying the operational requirements that can be used in assessing and choosing the candidates who will be the subject of a proposed appointment. The operational requirement identified in this case is not essential in nature. A person does not have to be able to work at heights up to 60 feet in order to qualify for and occupy a group and level GS-STS-04 position at 25 CFSD.

18The respondent submits that the Tribunal acknowledged in Glasgow v. Deputy Minister of Public Works and Government Services Canada et al., [2008] PSST 0007, that the choice among qualified candidates may be made on the basis of operational requirements. This means that a person can be a qualified candidate before operational requirements are considered or assessed.

19The respondent argues that the factors listed in paragraph 30(2)(b) are optional and do not create an obligation, but may be used in the assessment and selection of candidates. Failure to assess an operational requirement does not mean that appointments are not based on merit.

20In the respondent’s view, all the factors listed in paragraph 30(2)(b) are to be treated alike: they are not to be considered “essential” like the qualifications identified in paragraph 30(2)(a).

21In short, the respondent is free to identify operational requirements without creating an obligation to assess the merit of candidates or select them for proposed appointment.

C) Public Service Commission’s arguments

22The Public Service Commission (PSC) submits that paragraphs 30(2)(a) and (b) are worded differently: paragraph (a) provides that the person to be appointed has to meet all the essential qualifications as established by the deputy head, whereas paragraph (b) provides that consideration may be given to asset qualifications, operational requirements and organizational needs.

23The fact that paragraph 30(2)(a) is worded differently from paragraph 30(2)(b) indicates that they have different meanings. It is clear from paragraph 30(2)(a) that the person to be appointed must meet all the essential qualifications. The use of the expression “has regard to” – “prend en compte” in the French version – gives paragraph 30(2)(b) a different meaning.

24The ordinary meaning of “has regard to” in paragraph 30(2)(b) thus means that the merit criteria set out in paragraph 30(2)(b) must be considered, but it is not mandatory to assess them all.

D) Complainant’s reply

25The complainant replies that, while an operational requirement may be applicable in the future, it can be specified when the statement of merit criteria is written since the future requirement can still be foreseen. Moreover, the respondent did specify the operational requirement.

Analysis

26One of the key legislative objectives of the PSEA is to give managers considerable latitude in staffing. In this regard, the preamble states that “delegation [...] should afford public service managers the flexibility necessary to staff [...].” Parliament thus chose to move away from the staffing framework of the previous PSEA, based on rigid rules, and give managers considerable discretion in choosing the person who meets the essential qualifications and is “the right fit” (see: Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008; and Visca v. Deputy Minister of Justice et al., [2007] PSST 0024).

27The issue to be decided turns on the interpretation of subsection 30(2) of the PSEA, particularly paragraph (b). Section 30 reads:

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.

28As stated in subsection 30(2), an appointment is based on merit when the conditions set out in paragraphs 30(2)(a) and (b) are met. Paragraph (a) requires that the person to be appointed meet all the essential qualifications as established by the deputy head, whereas paragraph (b) indicates that the Commission has regard to identified asset qualifications, operational requirements and organizational needs.

29Parliament’s choice of different wording is important and meaningful. Paragraphs (a) and (b) are worded differently, which indicates that Parliament sought thereby to give a distinct meaning to each paragraph (see Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4thedition (Markham: Butterworths, 2002), at page 164).

30Paragraph 30(2)(a) specifies a mandatory requirement, namely that the person to be appointed must meet all the essential qualifications. If the appointed person does not meet the essential qualifications, then the appointment is not made on the basis of merit (see Rinn v. Deputy Minister of Transport, Infrastructure and Communities et al., [2007] PSST 0044, paragraph 38).This obligation is missing from paragraph (b), in which Parliament used the expression “has regard to”.

31The wording in the English version of paragraph 30(2)(b) – “has regard to” (prend en compte) – indicates even more clearly this lack of obligation. Thus, the word “regard” in the expression “has regard to” means “to consider” (considérer), “to pay attention to: take into consideration or account” (porter attention à, prendre en considération) (Black’s Law Dictionary, 10th edition, under “has regard to”).

32The words “has regard to” and “prend en compte” in paragraph 30(2)(b) indicate that the merit criteria established under this paragraph must be considered: attention must be paid to them, but it is not necessary to assess them.

33If it were necessary to assess the merit criteria in paragraph 30(2)(b), there would be no distinction to be made between these criteria and the essential qualifications. For an appointment to be made on the basis of merit, the candidate would also have to meet the identified asset qualifications, operational requirements and organizational needs. This interpretation would be contrary to Parliament’s intent, which is to afford considerable latitude to managers in staffing. There is, therefore, no reason to disregard the ordinary meaning of the words used by Parliament.

34For an appointment to be made on the basis of merit, the person appointed must meet the essential qualifications, and an assessment must therefore take place in order to determine this. The manager has discretion in determining who among the qualified candidates is “the right fit” for the position. The manager must consider whether or not to do so on the basis of the criteria in paragraph 30(2)(b). The manager may thus determine that the selection will be made on the basis of asset qualifications, operational requirements and organizational needs (see Glasgow).

35In the present case, the selection of the candidates to be appointed was based on the best scores for the seven essential qualifications. The PSEA gives a manager all the flexibility necessary to proceed in this manner. Selection of the right person for the position may be based solely on the essential qualifications. In Visca, the Tribunal acknowledged that selecting the candidates to be appointed on the basis of their performance during the assessment of the essential qualifications considered most important was within the broad discretion given to managers under the PSEA.

36The PSC’s Appointment Policy and Selection and Appointment Policy, indicates in this regardthatmanagers must first determine whether the other non-essential criteria established at the beginning of the process, including operational requirements, will be used. A manager may decide to use one or more of these non-essential criteria, or decide not to use them. When a manager decides to use non-essential criteria, these criteria must be considered before the person to be appointed is chosen.

37In this case, of the 75 storekeepers employed by the respondent, only eight work with turret trucks on the day shift, and six on the night shift. Given the large proportion of employees who do not work on turret trucks, the manager felt that the operational requirement of being able to work at heights up to 60 feet was not necessary in order to make the appointments, and there was, therefore, no need to assess it.

38The Tribunal finds that, under paragraph 30(2)(b) of the PSEA, the respondent had to consider the operational requirement, but was not required to apply and assess it. The respondent did consider it, but did not use it since these appointments did not require the ability to work at heights up to 60 feet. Accordingly, the Tribunal finds that the respondent did not abuse its authority by not assessing this operational requirement.

Decision

39For all these reasons, the complaint is dismissed.

Guy Giguère

Chairperson

Parties of Record

Tribunal File:

2007-0192

Style of Cause:

Martine Guimond and the Deputy Minister of National Defence et al.

Date of Reasons:

July 23, 2009