FPSLREB Decisions

Reasons for Decision

Introduction

1Ole Jacobsen, the complainant, is a meteorologist at the MT-06 group and level in Environment Canada. He applied for a number of Warning Preparedness Meteorologist (MT-06) positions under appointment process no. 07‑DOE‑IA‑PN‑MSC‑AH-2762 in 2007. The complainant was eliminated from the appointment process because he did not meet two of the essential qualifications that were assessed by a written exam.

2On January 22, 2008, he filed a complaint under paragraph 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA). The complainant alleges abuse of authority in the application of merit. He contends that the exam used to assess his knowledge qualifications was an inappropriate method of assessment and that his elimination from the staffing process constitutes an abuse of authority.

3The respondent, the Deputy Minister of Environment Canada, submits that the assessment board was properly constituted and that its decisions and use of assessment tools did not amount to an abuse of authority.

4Following the pre-hearing conference, the Public Service Staffing Tribunal (the Tribunal) decided to render its decision without an oral hearing in accordance with subsection 99(3) of the PSEA. This decision is based on the submissions of the parties and the documents on file.

Background

5An internal job opportunity advertisement was posted on Publiservice in the summer of 2007 to staff Warning Preparedness Meteorologist positions (MT-06) at various locations across Canada on an indeterminate or acting basis. The complainant submitted an application to this appointment process.

6Anne-Marie Palfreeman, Acting Manager, Services Division, Meteorological Service of Canada was the chair of the assessment board. René Héroux, Meteorologist, Meteorological Services, was part of the assessment board for the purposes of the written exam.

7Prior to posting the job opportunity advertisement, the assessment board determined that the essential qualifications identified in the Statement of Merit Criteria (SMC) would be assessed by written exam, interview and reference checks. Ms. Palfreeman prepared the written exam questions and the rating guide, and determined the required pass marks.

8By email dated September 20, 2007, the complainant was invited to write the exam. The email included the SMC, the work description for the positions, and listed the merit criteria that would be assessed by the exam.

9On October 7, 2007, the complainant completed the written exam.

10The exam assessed the following essential qualifications:

• K1 – Knowledge of MSC [Meteorological Service of Canada] structures and operations;
• K2 – Knowledge of applied and theoretical meteorology;
• K3 – Knowledge of weather forecast dissemination tools;
• K4 – Knowledge of weather service activities relevant to media or emergency response sectors;
• A2 – Ability to communicate in writing.

K1 was assessed by questions 1 and 2 and K2 was assessed by questions 3, 4 and 5.

11The written exams were corrected by Ms. Palfreeman and Mr. Héroux, individually. After an initial marking of the exams, the board met to review and discuss the results. The failing exams were reviewed a third time and compared against the passing exams.

12By email dated October 25, 2007, the complainant was informed that he had been eliminated from the staffing process because he did not obtain a pass mark on K1 or K2.

Issues

13The Tribunal must determine the following issues:

1. Did the respondent abuse its authority by using an inappropriate assessment method to assess two of the essential knowledge qualifications?
2. Did the respondent abuse its authority by failing to consider other evidence that the complainant met the essential knowledge qualifications?
3. Did the respondent abuse its authority by engaging in personal favouritism?

Legislation

14The complaint was filed under paragraph 77(1)(a) of the PSEA:

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

(a) 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);

[…]

15Paragraph 30(2) of the PSEA reads as follows:

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.

[…]

16Abuse of authority is not defined in the PSEA; however, subsection 2(4) provides the following: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

Arguments of the parties

A) Complainant’s arguments

17The complainant alleges that it was improper for the respondent to eliminate him from the appointment process on the basis of a single assessment method, namely the written exam. The respondent failed to consider that the complainant was already at the MT-06 group and level and, therefore, had already proven that he met the merit criteria assessed by K1 and K2. The complainant also submits that his annual appraisals were fully satisfactory at the MT-06 group and level, further reinforcing his claim that he meets the knowledge requirements assessed by K1 and K2.

18The complainant submits that question number 2, used to assess K1, required details of the communication protocol headers for specific warnings and as such did not test for knowledge of MSC operations but tested knowledge of communication protocols. In addition, the complainant contends that it is questionable whether the question actually applies to the merit criteria of MSC structures and operations as this criterion refers to managerial structure and operations and not to the technical forecast operations. He submits that thisprovided an unfair advantage to individuals working at operational forecast desks, as they are responsible for issuing severe weather warnings. He indicated that there is a possibility of favouritism, even if inadvertent, if the exam questions relate to a candidate’s area of expertise.

19According to the complainant, the questions concerning K2were arbitrary, asking candidates to identify specific desired key words. He stated that no additional points were awarded for right answers that were not included on the answer sheet. He submits that these questions could not be expected to provide an indication of a candidate’s knowledge of such a broad subject area. The complainant states that evidence of a relevant university degree is a more appropriate indicator of K2 than the written exam. The complainant submits that he has a Master’s of Science (M.Sc.) degree, specializing in meteorology and that this is a higher educational qualification than is required for the positions that are the subject of this complaint.

20The complainant referred to the five categories of abuse identified by Jones and de Villars, Principles of Administrative Law (Toronto: Thomson Carswell, 2004). He submits that the abuse of authority in this case relates to category two: “When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters).”

21According to the complainant, the respondent may administer exams as part of an appointment process, but the exam cannot be used in isolation to determine whether a candidate meets the knowledge qualifications for a position, unless the exam is sufficiently comprehensive or there is no other way to ensure the candidate has the appropriate knowledge. The complainant argues that the respondent should have made reference to his annual appraisals, education and occupational level to determine whether or not he met the knowledge qualifications for the positions.

B) Respondent’s arguments

22The respondent submits that the assessment board was properly constituted and competent to develop and assess the written exam. It cited paragraph 53 of Sampert et al. v. Deputy Minister of National Defence et al., [2008] PSST 0009,to support its position.

23According to the respondent, the questions were developed by Ms. Palfreeman, who has over 20 years of experience with the Meteorological Service of Canada and previously worked as a Warning Preparedness Meteorologist, a lead in the Warning Preparedness Program and an instructor in the Meteorological Service of Canada Training Branch. She was assisted in marking the exam by Mr. Héroux, who also has more than 20 years of service with the Meteorological Service of Canada, during which he has also worked as a Warning Preparedness Meteorologist and as an instructor with the Meteorological Services of Canada Training Branch.

24The respondent argues that under subsection 30(2) of the PSEA, the deputy head has the authority and broad discretion to establish the necessary qualifications for a position and to appoint persons on the basis of merit when they meet the essential qualifications. In support of this, the respondent refers to Visca v. Deputy Minister of Justice et al., [2007] PSST 0024.

25In the present case, management decided that candidates must have “knowledge of MSC structures and operations” (K1) and “knowledge of applied and theoretical meteorology” (K2).

26The respondent also referred to section 36 of the PSEA, which provides the deputy head with broad discretion to select the assessment tools it will use to determine whether a candidate meets the qualifications for a position. In support of this, the respondent cited Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011, and Charter v. Deputy Minister of National Defence et al., [2007] PSST 0048.

27According to the respondent, the complainant has not filed any evidence that could prove abuse of authority by the assessment board in using a written exam to assess the essential qualifications of candidates.

28It was also submitted that the assessment board was under no obligation to consider candidates further once they were found not to meet one or more of the essential qualifications. Reference was made to Jolin.

29In this case, all the candidates were assessed in the same manner against the same merit criteria. The assessment board used a written exam, a common assessment method. All candidates were afforded an equal opportunity to demonstrate their qualifications. The rating guide was applied consistently to all candidates.

30The respondent argues that the fact that the complainant occupied a MT-06 position at the time of the appointment process does not mean that he is qualified for the MT-06 positions in question. Section 30(2) of the PSEA provides a deputy head with broad discretion in establishing essential qualifications, which may vary for different positions under certain circumstances.

31The respondent submits that the complainant has not met the burden of proof in this case, i.e. he has failed to establish that he was not appointed, or proposed for appointment, by reason of abuse of authority.

C) Public Service Commission’s arguments

32The Public Service Commission (PSC) submitted general observations on the concept of abuse of authority and how the Tribunal should deal with the issue.

33The PSC submits that the Tribunal may conclude that there was an abuse of authority on the basis of improper assessment, but the fact that errors may have occurred in the assessment process is not in itself enough to establish abuse of authority. According to the PSC, for the Tribunal to make a finding of abuse of authority on the basis of improper assessment, it must conclude, based on the evidence, that the assessment was affected by bad faith or personal favouritism or be satisfied that any error in the assessment process was the result of such serious recklessness or carelessness that bad faith can be implied.

Analysis

Issue 1: Did the respondent abuse its authority by using an inappropriate assessment method to assess two of the essential knowledge qualifications?

34The complainant contends that the written test used to assess his knowledge qualifications was an inappropriate method of assessment. He alleges that the test was not sufficiently comprehensive and that there were other ways to determine that he possessed the required knowledge for these positions. According to the complainant, the assessment board should have considered his level of education, annual appraisals and his occupational level in determining whether he met the essential qualifications.

35In Visca, the Tribunal determined that Section 36 of the PSEA gives deputy heads broad discretion to use any assessment method they consider appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a).

36However, the deputy head’s discretion is not absolute. The Tribunal may make a finding of abuse of authority in the selection of the assessment methods if the complainant proves that the methods used are unreasonable or do not allow the qualifications stipulated in the statement of merit criteria to be assessed (see Jogarajah v. Chief Public Health Officer of the Public Health Agency of Canada et al., [2008] PSST 0015).

37Similarly, in Chiasson v. Deputy Minister of Heritage Canada et al., [2008] PSST 0027, the Tribunal stated that an assessment tool must truly assess what has to be assessed. If the tool is flawed, the outcome cannot be considered reasonable or fair.

38In this case, the complainant contends that the written test used to assess his knowledge qualifications was an inappropriate method of assessment. He alleges that the questions used to assess the essential qualifications K1 and K2 did not “comprehensively” test the knowledge of MSC structures and operations or knowledge of applied and theoretical meteorology. However, no evidence was submitted to prove that the assessment board required more comprehensive information than what it obtained from successful answers to the questions on the written test.

39The test was developed by Ms. Palfreeman and was marked by her and Mr. Héroux. Both Ms. Palfreeman and Mr. Héroux were familiar with the positions being staffed. Indeed, both of them had experience working in the positions. The complainant has not alleged, nor has he submitted any evidence to suggest, that Ms. Palfreeman was not competent to develop the test or that Ms. Palfreeman and Mr. Héroux were not competent to mark it.

40The evidence shows that the SMC for the positions stated that K1 and K2 were essential qualifications. Questions 1 to 5 on the test were designed to elicit the candidates’ knowledge of K1 and K2. The assessment board could have chosen other methods, but it decided to use the written test. This is a common approach and is within the discretion provided to the assessment board, as a sub-delegate, in section 36 of the PSEA to use any assessment method that it considers appropriate

41The complainant alleges that question number 2 on the test assesses knowledge of communications protocols and not K1, but he has failed to show why knowledge of communications protocols is unrelated to K1.

42He also alleges that the three questions that assess K2 cannot provide an indication of a candidate’s knowledge of such a broad subject area. But, he has not provided any evidence that successful answers to these questions cannot provide the assessment board with sufficient information to determine that a candidate possesses the essential qualifications for the positions of Warning Preparedness Meteorologist.

43The Tribunal finds the assessment board was knowledgeable of the positions being staffed and that the questions for K1 and K2 were based on the SMC for the positions. There is no convincing evidence that the questions on the written test would not provide the assessment board with the information it needed to determine whether a candidate meets the essential knowledge qualifications. The complainant has failed to prove that the methods used were unreasonable or do not allow the qualifications stipulated in the statement of merit criteria to be assessed.

44The Tribunal finds that the respondent did not abuse its authority by using a written exam to assess the complainant’s knowledge for the positions of Warning Preparedness Meteorologist.

Issue 2: Did the respondent abuse its authority by failing to consider other evidence that the complainant met the essential knowledge qualifications?

45The complainant is alleging that when the assessment board eliminated him from the appointment process due to his failure to pass two questions on a knowledge exam, it was acting on inadequate information. He contends that other evidence was available to confirm that he had sufficient knowledge to perform the duties of the positions. Failure to consider this information, he submits, constitutes an abuse of authority under paragraph 77(1)(a) of the PSEA.

46In Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, the Tribunal stated that the five categories of abuse outlined in Jones and de Villars, including “when a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters)” may be considered in assessing an allegation of abuse of authority under the PSEA. The Tribunal also stated in Tibbs that:

[65] It is clear from the preamble and the whole scheme of the PSEA that Parliament intended that much more is required than mere errors and omissions to constitute abuse of authority […]

[66] As the complainant has acknowledged, abuse of authority requires wrongdoing. Accordingly, abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority.

47The Tribunal elaborated on these principles in Portree v. Deputy Head of Service Canada et al., [2006] PSST 0014:

[47] An allegation of abuse of authority is a very serious matter and must not be made lightly. In summary, in order to succeed before the Tribunal, a complaint for abuse of authority must demonstrate on a balance of probabilities a serious wrongdoing or flaw in the process that is more than a mere error, omission or improper conduct that justifies the Tribunal’s review and intervention.

48The Tribunal must determine whether the respondent abused its authority when it failed to consider the complainant’s education, performance appraisals and occupational level in determining that he did not meet the essential qualifications for the positions. In other words, did the respondent act on inadequate material or fail to consider relevant matters when it eliminated the complainant from the appointment process?

49The SMC for these positions stated that a university degree with acceptable specialization in meteorology, or mathematics or physics was one of a number of essential qualifications. That the complainant has a university degree in meteorology means that he meets this one qualification. It does not mean that he meets the other specific knowledge requirements for the positions being staffed from this appointment process.

50Similarly, fully satisfactory performance in one position at the MT-06 level does not necessarily imply that a candidate has the knowledge to perform at a fully satisfactory level in another MT-06 position. It is entirely reasonable for the assessment board to design specific questions related to the knowledge required for the positions being staffed and to determine if a candidate possesses that knowledge, irrespective of whether the candidate is currently performing well in an equivalent, higher or lower level position.

51The decision of the assessment board to use a knowledge test to assess the knowledge qualifications is within its discretion under section 36 of the PSEA. There is no requirement under the PSEA for an assessment board to consider education, performance appraisals and current classification when assessing the specific knowledge required for a particular position. (See Melanson and Innes v. Deputy Minister of National Defence et al., [2008] PSST 0014).

52The Tribunal finds that the complainant has failed to show, on a balance of probabilities, that the respondent abused its authority by not considering his education, annual performance appraisals and occupational level in its assessment.

Issue 3: Did the respondent abuse its authority by engaging in personal favouritism?

53The complainant also submitted that any candidates working at operational forecast desks had an unfair advantage in answering the second question relating to K1. He indicated that this presented the possibility of favouritism, even if inadvertent, because the exam questions related to those candidates’ area of expertise

54However, as the Tribunal pointed out in Glasgow v. Deputy Minister of Public Works and Government Services Canada et al., [2008] PSST 0007, the word personal precedes the word favouritism in subsection 2(4) of the PSEA,emphasizing Parliament’s intention that both words be read together, and therefore it is personal favouritism, not other types of favouritism, that constitutes abuse of authority. The Tribunal also established that evidence of personal favouritism can be either direct or circumstantial evidence. For example, a complainant could establish direct evidence of a personal relationship that exists between the delegated manager and the appointee. Here, the nature of the complainant’s evidence is circumstantial.

55The complainant is not alleging personal favouritism, but that any candidates working at operational forecast desks were possibly favoured, or could have been favoured, as the questions related to their area of expertise. Furthermore, evidence that any candidates with an area of expertise would likely meet an essential qualification is not evidence of personal favouritism. There is no evidence before the Tribunal that the assessment board designed the questions in order to personally favour a candidate nor has it been alleged.

56The Tribunal finds that any claim based on personal favouritism is not substantiated.

Decision

57For all of these reasons, the complaint is dismissed.

Kenneth J. Gibson

Member

Parties of Record

Tribunal File:

2008-0063

Style of Cause:

Ole Jacobsen and the Deputy Minister of Environment Canada et al.

Hearing:

Paper Hearing

Date of Reasons:

March 18, 2009