FPSLREB Decisions

Reasons for Decision

Introduction

1On August 28, 2008, the complainant, Jean Pierre Ouellet, filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under section 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA) in which he alleges abuse of authority by the respondent, the President of the Canadian International Development Agency (CIDA). The complainant contends that there was abuse of authority in the application of merit concerning the choice and use of the assessment method for a question on a written exam.

Background

2In 2007, CIDA held an internal appointment process to fill four IS 06 positions, under the appointment process number 07-IDA-IA-03103. The complainant competed in the appointment process. The candidates screened in, including the complainant, took a written exam. The complainant did not obtain the required pass mark. Consequently, the complainant was eliminated from further consideration in the process.

Summary of Relevant Evidence

3Claude Michaud, Director – Outreach, Communications Branch, CIDA, group and level EX 01, explained that the respondent intended to fill four positions at the IS 06 group and level. The goal of the process was to create a pool for these positions and to have candidates for other positions. Following the screening process, the respondent decided to administer a written exam.

4Mr. Michaud prepared the exam with the help of a colleague from Human Resources, and the other directors reviewed the questions. The assessment board was comprised of four members:

• Mr. Michaud;
• Denise Robichaud, Manager, Advisory Services and Corporate Services, EX 01 group and level;
• Antoine Chevrier, Program Director, Haiti, EX 01 group and level;
• Vivianne Williams, consultant and former Corporate Services manager.

All of these individuals participated in choosing the questions and preparing the scoring grid.

5The assessment board invited the screened-in candidates to the exam. The invitation stated that the objective of the exam was to assess four essential qualifications including the one that is the subject of this complaint, which reads as follows: “K1 – Knowledge of CIDA’s mandate, policies and programs [Translation].”

6The exam was sent by email at 11:00 a.m. on April 3, 2008. The candidates had 30 minutes to ask questions about the exam. The exam began at 11:30 a.m. and had to be completed and sent in within 24 hours. The members of the assessment board gave the candidates 24 hours to answer the two exam questions so that they would have sufficient time to look for information and produce a quality document.

7Question 1 read as follows:

The Government has decided to invest $100 million over three years to improve democratic governance in five developing countries. You have a budget of $300,000 to promote this initiative. Please prepare a memorandum for approval by the Minister.

[Translation]

8However, the evidence revealed that question 1 and the wording of question 1 in the scoring grid differed. The wording of question 1 in the scoring grid read as follows:

The Government has decided to invest $100 million over three years to improve democratic governance in five developing countries. You have a budget of $300,000 to promote this initiative. Please prepare a memorandum for the Minister presenting your action plan, taking into account and demonstrating your knowledge of CIDA’s mandate, policies and programs, the government’s priorities and the communications policy.

[Translation]

(Emphasis added

)

9The underlined section does not appear in question 1 that the candidates were given. Mr. Michaud stated that the missing part was provided to the candidates the week before the exam, and that the underlined part was used to correct the exam. He added that Ms. Williams marked the 19 written exams, which ensured uniform and fair grading for everyone. She knows CIDA’s mandate and policies well.

10Mr. Michaud explained that question 1 was a common example of a CIDA simulation that an individual in the IS 06 group and level would have to deal with. In the expected response, the respondent was looking for knowledge of the Government’s directions, CIDA’s mandate, policies and key programs and Government’s priorities and communications policy. The exam answer was to be two and a half pages long, clearly and logically written using a high vocabulary level. The scoring grid contained elements of the answer and a rating guide for the questions. The answer to question 1 was worth 100 points and the minimum pass mark was 60 points. The description of the mandate was worth 50 points, and the description of CIDA’s policies and key programs was worth 50 points.

11The complainant failed question 1. He did not describe CIDA’s mandate in his answer and received 0/50 for this part of the answer. The complainant explained that he did not see the need to repeat CIDA’s mandate in the answer and that he knew it well. He was eliminated from the appointment process. The complainant claimed that, in eliminating him, the respondent did not recognize his experience or his knowledge.

12On cross examination, the respondent asked the complainant to comment on the invitation to the written exam and particularly on the essential qualification “K1 – Knowledge of CIDA’s mandate, policies and programs [Translation].” The complainant maintained that the answer did not require repeating CIDA’s mandate. In his opinion, a specific question required a specific answer. He knew CIDA’s mandate without reciting it word for word.

13On May 2, 2008, the complainant participated in an informal discussion with Mr. Michaud who explained the reasons why the complainant was eliminated from further consideration in the process. The complainant then wrote down his concerns in a letter dated May 8, 2008. The letter contains his arguments contesting the marking of his exam. The complainant wrote: “[...] it would not have been appropriate, as a communications specialist, to remind the Minister of the exact wording of CIDA’s mandate [...] [Translation].” Later in the letter, he wrote: “No element in this simulation suggested that it would be useful to dwell insistently and at great length on CIDA’s mandate, policies and program [Translation].”

14On June 2, 2008, Mr. Michaud answered him in writing that the assessment board had conducted a review of his exam. He then confirmed that the marking of his exam contained no errors and that the results were accurate and fair, care having been taken that the assessment criteria remain constant from one exam to the next. Therefore, the assessment board stood by the marks assigned to each question and the final result of the written exam remained the same, namely that the complainant had failed.

15Mr. Michaud stated that nine individuals passed the exam, three of whom were from other departments. Four of the successful candidates were appointed to the available positions.

Issues

16The Tribunal must decide the following issues:

1. Did the respondent abuse its authority in the choice and use of the assessment methods?
2. Did the respondent abuse its authority in the assessment of the complainant’s answer to question 1?

Arguments of the parties

A) Complainant’s arguments

17The complainant argues that question 1 was unrelated to the essential qualifications that it was meant to assess. According to the complainant, this question served to eliminate candidates who were not already preferred for the positions to be filled. He asserts that among the candidates appointed only those already in acting positions were selected.

18The complainant submits that he answered question 1 that was on the exam and not the one on the scoring grid. He contends that there is abuse of authority since the assessment method is unreasonable and cannot assess the qualifications set out in the statement of merit criteria.

19The complainant also argues that he has 12 years experience with CIDA. He emphasizes the quality of his answer and that his opinions and advice are strategic and directly related to CIDA’s mandate, priorities and programs.

B) Respondent’s arguments

20The respondent asserts that the goal of question 1 was to assess knowledge of CIDA’s mandate, policies and programs. The complainant failed on this question.

21The respondent argues that the complainant’s testimony is not evidence of abuse of authority but rather his opinion on what the expected answer should be and not the one sought by the respondent. The respondent submits that the complainant did not present any evidence although the onus is on him to prove abuse of authority on the part of the respondent. The filing of a complaint goes beyond the mere allegation that the respondent abused its authority. The respondent notes that the Tribunal has already recognized the latitude provided to the assessment board in previous decisions. The informal discussion led to a review of the complainant’s exam and the result remained the same.

22The respondent submits that Mr. Michaud clearly explained the difference between the wording of the question and the wording on the scoring grid. The wording of question 1 in the exam is the official wording, not the wording on the scoring grid.

23In short, the respondent contends that the complainant decided not to deal with CIDA’s mandate in his answer, the mandate that is set out on CIDA’s website. The assessment board gave the candidates 30 minutes to clarify the exam questions. The complainant’s answer did not demonstrate that he knew the mandate. As for those individuals appointed on an acting basis, the complainant provided no evidence of preferential treatment.

C) Public Service Commission’s arguments

24The Public Service Commission (PSC) did not attend the hearing. The PSC filed written submissions with the Tribunal on the concept of abuse of authority and how the Tribunal should deal with the issue.

Relevant Legislation

25The relevant provisions of the PSEA are:

36. In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications [...].

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);

[...]

Analysis

Issue I: Did the respondent abuse its authority in the choice and use of assessment methods?

26Section 36 of the PSEA provides delegated managers with broad discretion in the choice and use of assessment methods to determine whether or not an individual possesses the established qualifications. However, this authority is not absolute and the Tribunal can decide that there was abuse of authority if it is established, for instance, that the assessment method contained a fundamental flaw because it is unrelated to the qualifications or does not assess them, that the method is unreasonable or discriminatory, or that the result is unfair. See: Visca v. Deputy Minister of Justice et al., [2007] PSST 0024; Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011; Chiasson v. Deputy Minister of Canadian Heritage et al., [2008] PSST 0027; Jogarajah v. Chief Public Health Officer of the Public Health Agency of Canada et al., [2008] PSST 0015.

27According to the complainant, question 1 is unrelated to the qualifications it was meant to assess. The complainant did not question the content of the scoring grid, for example, by claiming that the elements of the mandate are wrong, unreasonable or that they are unrelated to CIDA’s actual mandate. Rather, he emphasized the differences between the wording of question 1 and the wording on the scoring grid.

28The goal of question 1 was to assess the essential qualification “K1 – Knowledge of CIDA’s mandate, policies and programs [Translation].” The scoring grid directly refers to CIDA’s mandate and reads as follows:

K1. Knowledge will be assessed on the basis of the following criteria:

Mandate (P/F) 50 points – Supporting sustainable development, reducing poverty and providing humanitarian assistance in order to promote a more secure, equitable and prosperous world.

Policies and programs (P/F) 50 points – ref. CIDA website.

Pass mark: 60/100

[Translation]

29There is a clear link between the essential qualification “knowledge of CIDA’s mandate, policies and programs” and the scoring grid used to assess the answers concerning the mandate and the policies and programs.

30An addition appears in the wording of question 1 on the scoring grid, namely “[...] presenting your action plan, taking into account and demonstrating your knowledge of CIDA’s mandate, policies and programs, the government’s priorities and the communications policy [Translation].” In his testimony, Mr. Michaud explained that the missing part, which was taken into account when the exam was corrected, had been provided to the candidates one week prior to the exam. There is no evidence that the complainant did not receive this additional information before the exam or that he received different instructions from the other candidates.

31The situation in this case is very different from that in Chiasson, in which the respondent changed the instructions after having sent the exam and the instructions without taking follow-up action. The Tribunal found in that case that the complainant had not received the same information as the other candidates for the written exam. In this case, there is no evidence to contradict Mr. Michaud’s testimony that the missing information was provided to the candidates before the exam. The complainant received the same information as the other candidates and was assessed on an equal footing.

32Consequently, the Tribunal finds that the complainant has not proven that the respondent abused its authority in the choice or use of the assessment method.

Issue II: Did the respondent abuse its authority in the assessment of the complainant’s answer to question 1?

33The complainant submits that he gave a quality answer and that his opinions and advice were strategic and directly related to the mandate. The respondent asserts that, although the complainant is of the opinion that his answer satisfied the criteria in the rating guide, the respondent determined that he had failed.

34The invitation sent to the candidates, including the complainant, clearly stated the objective of the exam, which was to assess four essential qualifications, including knowledge of CIDA’s mandate, policies and programs. This was further clarified when the respondent informed the candidates one week prior to the exam that it would include a question dealing with the presentation of an action plan, in which the candidate should explain and demonstrate his or her knowledge of CIDA’s mandate, policies and programs.

35The complainant chose to answer without referring directly to CIDA’s mandate. He did not think it necessary to repeat CIDA’s mandate in his answer because he knew it well and, in his view, it was not appropriate to remind the Minister of the exact wording of CIDA’s mandate. However, this was the way the respondent had chosen to assess whether or not the candidates actually knew the mandate. The complainant presented no evidence to prove that his assessment by the respondent was an abuse of authority simply because the latter required further details about the mandate.

36Furthermore, the complainant, like the other candidates, had 30 minutes to ask questions about the exam if any questions were unclear. He could have taken this opportunity to clarify the question.

37The complainant is concerned about Ms. Williams’ ability to mark an exam in French. As stated in Sampert et al. v. Deputy Minister of National Defence et al., [2008] PSST 0009, there is no provision in the PSEA which requires deputy heads to ensure that an assessment board has a certain composition. Determining whether or not Ms. Williams had the linguistic abilities to mark an exam in French is a question of fact which depends on the evidence presented at the hearing. However, no evidence was submitted to support the complainant’s allegation.

38Consequently, the Tribunal finds that the complainant has not proven, on the balance of probabilities, that the respondent abused its authority in its assessment of the complainant’s answer to question 1.

Decision

39For all these reasons, the complaint is dismissed.

Robert Goiroux

Member

Parties of Record

Tribunal File:

2008-0585

Style of Cause:

Jean-Pierre Ouellet and the President of the Canadian International Development Agency et al.

Hearing:

June 11 and 12, 2009
Ottawa, Ontario

Date of Reasons:

August 24, 2009

Appearances:

For the complainant:

Martine Racine

For the respondent:

Pierre-Marc Champagne