FPSLREB Decisions

Reasons for Decision

Introduction

1Penelope Henneberry, the complainant, is a Property Officer with the Department of National Defence. She participated in an internal advertised appointment process conducted by the Department of Fisheries and Oceans (DFO) to staff a Manager, Property and Harbour Operations position at the AS-06 group and level, in St. John’s, Newfoundland and Labrador. She alleges that the respondent, the Deputy Minister of DFO, provided her insufficient notice of a written examination. The complaint also alleges that she was discriminated against based on her sex. She asserts that she was not provided a choice of dates for her interview, whereas a choice was offered to a male candidate. According to the complainant, this constitutes discrimination. She is therefore claiming that she was not appointed or proposed for appointment by reason of an abuse of authority by the respondent.

2The respondent asserts that, although an administrative error caused a delay in notifying the complainant about the written examination, the complainant was not disadvantaged because candidates would not benefit from studying in advance for this test. The respondent also asserts that the complainant did not request an alternate date or format for her interview. The respondent denies that the complainant was treated differently than other candidates and denies any discrimination or abuse of authority in the complainant’s assessment.

Background

3Following the initial screening of applications, candidates in this appointment process were assessed using a Public Service Commission (PSC) standardized test, a Behavioural Based Assessment (BBA) submission and an interview.

4The complainant was one of three candidates who met the merit criteria identified for screening, and she wrote and passed the PSC standardized test on October 19, 2007. She provided her submission for the BBA on November 5, 2007, and attended an interview on November 9, 2007. Based on the assessment of the complainant’s BBA and interview, the respondent found that she failed to meet three essential qualifications for the position. The complainant was informed of this result in writing on December 5, 2007.

5A Notification of Appointment or Proposal of Appointment was issued on Publiservice. On January 29, 2008, the complainant filed a complaint of abuse of authority with the Public Service Staffing Tribunal (the Tribunal), under section 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22 ss. 12, 13 (the PSEA).

6The complainant filed her allegations on March 10, 2008, requesting as remedy compensation pursuant to the Canadian Human Rights Act, R.S.C., c. H-6, (the CHRA), should her complaint be substantiated. In accordance with section 78 of the PSEA and section 20 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, the complainant notified the Canadian Human Rights Commission (CHRC) of her complaint. In her Notice to the Canadian Human Rights Commission, the complainant clarified that she was making an allegation of discrimination based on sex.

7In her written allegations, the complainant noted that, although the Job Opportunity Advertisement contained a statement that interviews may be conducted via telephone or video conference, she was not offered these options. The complainant did not submit any evidence or arguments on this matter at the hearing.

Issue

8The Tribunal must determine whether the respondent abused its authority by treating the complainant in an unfair manner or by differentiating adversely in relation to her based on sex.

Summary of Relevant Evidence

9William Goulding is the Regional Director, Small Craft Harbours for DFO in Newfoundland and Labrador. The position staffed through this appointment process reports to Mr. Goulding and he chaired the assessment board, consisting of him and another member. Mr. Goulding explained that the assessment board determined the interview dates while administrative arrangements for the PSC test and interviews were handled by Human Resources.

10Mercy Oyet was a Human Resources Officer Trainee at the time of this appointment process. As a Trainee, she worked under the supervision of a Human Resources Advisor. Ms. Oyet explained that her role with respect to the PSC test was to arrange for its administration and schedule the candidates. On October 11, 2007, Ms.Oyet sent an email to the three candidates inviting them to write the Middle Management Simulation Exam 840 (MMSE 840) on October 19, 2007. The candidates were asked to confirm their attendance at the MMSE 840 by sending an email to Ms. Oyet.

11Ms. Oyet testified that since she did not receive a confirmation from the complainant during the course of the day, she started trying to contact her the following day, October 12, 2007. Ms. Oyet was unable to reach the complainant by telephone until October 15, 2007. During their discussion that day, Ms. Oyet realized that the complainant had not received the October 11 test invitation because she had mistyped the complainant’s email address. Ms. Oyet explained that she could not use the email address from the complainant’s application because the application was in Publiservice, to which she had no access.

12According to Ms. Oyet, she explained during her telephone conversation with the complainant that the MMSE 840 assesses the ability to manage and that information about the test is available on the PSC website, which the complainant said she could access. Ms. Oyet stated that since the complainant was being informed about the test four days later than intended, she asked her whether the October 19, 2007 date was still convenient. The complainant confirmed that she would attend on the scheduled date and, consequently, Ms. Oyet did not postpone her test.

13During their telephone conversation on October 15, 2007, Ms. Oyet verified the spelling of the complainant’s name as it appears in her email address, and re-sent the written invitation to the MMSE 840 to the complainant that day. Later that afternoon, Ms. Oyet sent another email to the complainant requesting that she confirm receipt of the invitation.

14Ms. Oyet was not in the office on October 16, 2007. When she returned on October 17, 2007, Ms. Oyet expected to have received an email confirmation from the complainant. Since she had not, she called the complainant who explained that the invitation had still not been received. During that conversation, they realized that Ms. Oyet had again mistyped the email address. Ms. Oyet sent the written invitation to the MMSE 840 again on October 17, 2007 and received confirmation of receipt and attendance at the test from the complainant that day. She stated that she did not receive any automatic notices that the system was unable to deliver the emails she sent to the incorrect addresses.

15The complainant testified that, when she submitted her online application, she included her business and personal contact information. Prior to the MMSE 840 invitation, she had received email correspondence at work from a DFO Human Resources Assistant without any problems.

16In her testimony, the complainant confirmed that she had indeed received a telephone call at work from Ms. Oyet on the afternoon of October 15, 2007, to inquire whether she was still interested in the appointment process since she had not replied to an email invitation to write a test. According to the complainant, she was informed that the test to be administered on October 19, 2007 was the General Services Test. The complainant confirmed her interest and was told that the invitation would be re-sent immediately. She did not receive the invitation and, since she had no contact information for the person she had spoken with, the complainant sent an email to the Human Resources Assistant she had corresponded with earlier in the process.

17When the complainant arrived home from work on October 15, 2007, she found a voice message that had been left by Ms. Oyet that morning, inquiring whether she was interested in continuing in the appointment process. On the morning of October 16, 2007, the complainant left a voice message for Ms. Oyet because she had not yet received the email invitation to the test. She did not hear from Ms. Oyet or the Human Resources Assistant that day.

18The complainant explained that the PSC website provides information and examples of questions from its various tests to give candidates an idea of what to expect when they write a test. According to the complainant, she prepared for the General Services Test based on the information Ms. Oyet gave her by telephone on October 15, 2007. It was only upon receiving the official written invitation on October 17, 2007 that she realized that it was the MMSE 840 that she would be required to write. The complainant stated that the General Services Test is different from the MMSE 840, which consists of management level questions and scenarios. The complainant had only two days to prepare for the test on October 19, 2007.

19The complainant was frustrated because of the communication breakdown; she had started to prepare for one test and, at the last minute, had to prepare for a different test because Ms. Oyet had given her incorrect information. The complainant acknowledged that the problems with the emails were due to Ms. Oyet having mistyped her email address. She also stated that Ms. Oyet telephoned her home during business hours five times although she had asked to be contacted at the office.

20After receiving the official, written invitation, the complainant did not contact anyone to indicate that there was a discrepancy regarding the test that would be administered. She stated that she consulted the PSC website and completed all the MMSE 840 example questions. She agreed that no studying was required and that she ultimately passed the MMSE 840 when she wrote it on October 19, 2007.

21When she was presented with a listing of the PSC’s standardized tests from its website during the hearing, the complainant was unable to find a test called the “General Services Test”. She acknowledged that she may have used the wrong name in her testimony, but she remembers Ms. Oyet saying that it was one of the general tests. She asserts that, during their telephone conversation on October 15, 2007, Ms. Oyet did not say it was the MMSE 840 that would be administered.

22On October 30, 2007 the Human Resources Assistant sent the BBA and instructions to candidates. Candidates were to complete the BBA and send it to Mr. Goulding by November 5, 2007. The complainant testified that she had sufficient time to complete the BBA and submit it by the deadline.

23Ms. Oyet explained that she was not involved with the BBA. Her role with respect to the interviews was to schedule candidates and to provide a contact for those who needed to travel for the interview. The assessment board had chosen a date to hold interviews and, on November 1, 2007, Ms. Oyet called the three candidates to discuss their availability on November 9, 2007. She called the complainant first.

24The complainant testified that she told Ms. Oyet that November 9, 2007 was not convenient for her, but she did not give her a reason. According to the complainant, Ms. Oyet said that the position had been vacant for some time and, as the assessment board was available on November 9, 2007, it wanted to hold the interviews that day. The complainant also stated that Ms. Oyet told her that, if she could not attend an interview on that day, she would no longer be a candidate for the position. The complainant testified that Ms. Oyet did not, at any time, offer her another interview date.

25The complainant stated that she believed that she had to make herself available on November 9, 2007, although it was not convenient for her. She explained at the hearing that her father had been ill and was in the hospital at the time. She prepared for her interview by searching online for information about the merit criteria that would be assessed.

26According to Ms. Oyet, she did not tell the complainant that she had to attend an interview on November 9; she told the complainant that the date was tentative and that she was contacting all the candidates to determine if November 9, 2007 was convenient. Ms. Oyet testified that the complainant did not indicate that the date was inconvenient for her, but said rather that she was available for an interview on November 9, 2007. The complainant did not request another date. Ms. Oyet stated that the complainant asked her how soon the position would be filled and she told the complainant that the assessment board wanted it filled as soon as possible. She denied telling the complainant that she would be excluded from the appointment process if she was not available for an interview on November 9, 2007.

27Ms. Oyet explained that one of the candidates was not available on November 9, 2007 due to work commitments. Mr. Goulding testified that the interview dates were set by himself and the other assessment board member, based on their schedules. Since Mr. Goulding was initially unable to reach the other assessment board member to discuss availability for another interview date, Ms. Oyet sent an email to the complainant on November 1, 2007, informing her that the interview date may need to be changed and that she would confirm the date by the following day. The two board members decided to also convene on November 19, 2007, in order to accommodate the candidate who was not available on November 9, 2007. According to Ms. Oyet, she then called all three candidates again to offer them the option of being interviewed on November 9 or 19, 2007. The complainant confirmed the November 9, 2007 interview date. In the end, only one candidate was interviewed on November 19, 2007.

28Ms. Oyet sent two letters to the complainant by email on November 2, 2007, confirming that her interview would be held on November 9, 2007. The second letter was to change the time of the interview from 10:30 a.m. to 9:00 a.m.

29The complainant submitted her BBA on November 5, 2007 and, on that day, received confirmation of receipt and approval to make her travel arrangements for an interview from Mr. Goulding. The complainant lives in Nova Scotia and the interviews were held in St. John’s, Newfoundland and Labrador.

30On November 9, 2007, the complainant attended her interview. She testified that at the end of her interview, she was told that one candidate would not be interviewed until two weeks later.

31The complainant testified about the effect these circumstances had on her. She stated that that she did not have adequate time to think and properly prepare and her performance in the interview was affected. She was upset to learn that November 9, 2007 was not the only interview date. She also stated that on November 1, 2007 she requested time off from work for the interview on November 9, 2007, but after being informed by Ms. Oyet that the interview date might change, she told her supervisor that she did not need time off November 9, 2007. When she was later informed that the interview would still be held on November 9, 2007, she had to go back to request the time off again.

32The complainant described her interview as a repetition of the BBA; the three essential qualifications addressed by the BBA were the same qualifications that were discussed during the interview. She agreed that it was not necessary to study for the interview.

Arguments of the parties

A) Complainant’s arguments

33The complainant argues that those who are delegated to conduct staffing in DFO are required to comply with PSC policies, by virtue of sections 15 and 16 of the PSEA and the DFO delegation instrument. She submits that two days to prepare for the PSC standardized test was insufficient and not in compliance with the PSC’s Assessment Policy. She further submits that, although it is not possible to study in advance for the MMSE 840, some time is needed for mental preparation.

34The complainant contends that sex was a factor in this appointment decision and that, consequently, the respondent engaged in a discriminatory practice within the meaning of section 7 of the CHRA. She submits that she has established a prima facie case of discrimination, having demonstrated that: a) she is a woman; b) she was not offered an alternate interview date; and, c) a male candidate was offered an alternate interview date. She also argues that she was treated unfairly, that staffing values were not respected, and that the respondent breached its obligation to comply with PSC policy.

35The complainant refers to the Tribunal’s decision in Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, and argues that the respondent’s mishandling of the arrangements for the PSC standardized test and the interview caused two improper results; first, she was not afforded adequate preparation time for the test and, secondly, a male candidate was offered an alternate interview date and she was not, which would constitute a discriminatory practice within the meaning of section 7 of the CHRA.

36The complainant does not seek revocation of the appointment that was made. As remedy she is seeking damages for pain and suffering, as contemplated under paragraph 53(2)(e) of the CHRA.

B) Respondent’s arguments

37The respondent submits that, while two administrative errors were made in typing the complainant’s email address, the Tribunal established in Portree v. Deputy Head of Service Canada, 2006 PSST 0014, that mere errors do not equate to abuse of authority.

38The respondent further submits that the complainant did not suffer any prejudice as a result of the errors. Candidates are not required to study for the MMSE 840; therefore, whether the complainant received all the relevant information four days or two days prior to the test, the notice was timely in the circumstances. The respondent further argues that since the complainant successfully passed the MMSE 840 test, the matter is moot. The test had no bearing on the respondent’s decision not to appoint her.

39With respect to scheduling the complainant’s interview, the respondent argues that the complainant has failed to establish that the respondent’s actions were discriminatory and, therefore, has failed to demonstrate prima facie discrimination. The respondent submits that the complainant has not demonstrated that sex was a factor in decisions made in this appointment process.

40The respondent also argues that, in accordance with the decision of the Federal Court of Canada – Trial Division in Cyr v. Canada (Attorney General), 2000 CanLII 16593, [2000] F.C.J. No. 1916 (QL) (T.D.), the complainant had an obligation to inform the respondent of a personal condition that may have prevented her from performing her best at her interview. The respondent submits that the complainant was informed on five occasions of her responsibility to raise any limitations she had that could have adversely affected her performance during the assessment. The respondent submits that there is conflicting evidence as to whether the complainant requested a different date for her interview, and that the Tribunal must determine the facts by assessing the credibility of the witnesses.

C) Public Service Commission’s arguments

41 The PSC did not appear at this hearing, but it provided written submissions.

42The PSC argues that its policies are binding on deputy heads; however, it submits that a breach of PSC policy is insufficient to establish abuse of authority. The PSC’s Assessment Policy requires that deputy heads “inform the persons to be assessed, in a timely manner, of the assessment methods to be used, their right to accommodation and how to exercise that right”. The PSC submits that, since the complainant was successful on the MMSE 840, it is reasonable to assume that she was adequately prepared and furthermore, she is not challenging her result. Accordingly, the PSC concludes that the respondent met its obligation to inform the complainant in a timely manner.

43The PSC’s policy on Employment Equity in the Appointment Process requires that deputy heads accommodate the needs of those who are protected from discrimination under the CHRA and those who meet the PSC’s definition of a “person with disabilities”. The PSC submits that there is no obligation to offer alternate dates for an interview if no request has been made.

D) Complainant’s reply arguments

44The complainant argues that, while the typographical mistakes in the email address may appear to be errors, the Tribunal must consider the impact of those errors on her.

45The complainant submits that Cyr makes a distinction between the duty to accommodate and making alternate arrangements because of a personal condition that may affect a candidate’s performance. She submits that, with one exception, the notices advising candidates to inform the respondent of their needs during the assessment used narrow language related to accommodation of a disability, and did not address the kind of consideration the complainant needed. She also submits that none of those notices was issued by the respondent’s delegate; the first direct contact the complainant had with the delegated manager, Mr. Goulding, was an email from him on November 5, 2007. Mr. Goulding’s email does not mention either accommodation or arrangements.

Analysis

46The complainant alleges that the respondent treated her unfairly in two ways during this appointment process. First, she was given insufficient notice to prepare for a PSC standardized test, and secondly, she had to attend an interview on a date that was not convenient to her. Since a male candidate was allowed to reschedule his interview, the complainant alleges discrimination based on sex.

47Most of the evidence is not in dispute. On October 11, 2007, Ms. Oyet attempted to notify the complainant by email about the PSC test, which was scheduled on October 19, 2007. Ms. Oyet and the complainant had telephone conversations about the test on October 15 and 17, 2007, and the complainant received her official written invitation to the test on October 17, 2007. The complainant received her written invitation late because Ms. Oyet had mistyped her email address. She wrote and passed the test on October 19, 2007.

48There is however a dispute over the matter of when the complainant learned which test she would be writing. Two versions of this evidence have been advanced. When there is conflicting evidence, an analysis of the credibility of witnesses may be required. In Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007, at paragraph 45, the Tribunal referred to the test for witness credibility that is set out in Faryna v. Chorny (1952), 2 D.L.R. 354, at p. 357, [1951] B.C.J. No. 152 (QL) (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

(emphasis added)

49Thus, the Tribunal should determine which version is in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in the circumstances.

50Ms. Oyet testified that she told the complainant about the MMSE 840 during their telephone conversation on October 15, 2007. The complainant’s testimony is that, on October 15, 2007, Ms. Oyet told her she would write the General Services Test. She asserts that she prepared for that test by completing the sample questions on the PSC’s website before learning, on October 17, 2007, that it was the MMSE 840 she would be writing.

51The two emails that Ms. Oyet tried unsuccessfully to send on October 11 and October 15, 2007 both clearly identify the test as the MMSE 840.

52The complainant’s testimony is not that Ms. Oyet simply failed to provide the test’s name, but rather that Ms. Oyet told her it was the General Services Test. However, there is no evidence that the PSC has a standardized test named General Services Test; it is not on the PSC’s standardized test listing. Although the complainant explained that she may have misnamed the test, this raises serious doubts regarding her testimony that she spent time using the PSC’s website to prepare for the General Services Test. That would not have been possible since the PSC’s website has no information under that test name.

53In the circumstances it is not reasonable to conclude that Ms. Oyet referred the complainant to a non-existent test. When they spoke on October 15, 2007, Ms. Oyet had already attempted to send the invitation to the complainant. If Ms. Oyet had for some reason misrepresented the nature of the test to the complainant during their telephone conversation, the email providing the details of the test, which Ms. Oyet tried to re-send immediately afterward, would have necessarily revealed the information to be false. The only reason that the email never reached the complainant was, as she herself acknowledges, due to Ms. Oyet’s inadvertent typing error in the address.

54As well, the complainant confirmed in her testimony that once she received the written invitation on October 17, 2007, and realized the discrepancy regarding which test would be administered, she did not request additional time to prepare. The complainant simply confirmed in writing that she would attend the MMSE 840 on October 19, 2007.

55The evidence does not support a finding that Ms. Oyet, either mistakenly or deliberately, misled the complainant about the test she would write. The Tribunal finds that, during the telephone conversation on October 15, 2007, Ms. Oyet gave the complainant the correct test information.

56The complainant argues that she did not have sufficient time to prepare for the MMSE 840 and that this had a negative impact on her. Even if the Tribunal found that the complainant had only two days to prepare for this test, and it does not, the evidence does not support a finding that the complainant had insufficient time to prepare. The complainant agrees that it is not possible to study for the MMSE 840. She testified that she had sufficient time to look at the MMSE 840 information on the PSC’s website and complete the sample questions before writing the test. Moreover, the complainant was successful on the MMSE 840 and, as such, it was not a factor in the decision not to appoint her.

57The complainant stated that she was frustrated by the problems she experienced communicating with Ms. Oyet. The complainant’s reaction to the email problem is understandable. She agrees however that it was the result of administrative errors. The complainant was also frustrated because Ms. Oyet used her home contact information. These are not issues that had an impact on the complainant’s assessment.

58The complainant has therefore failed to establish that she had insufficient time to prepare for the MMSE 840, or that she was negatively affected in any way that is relevant to her assessment.

59The second component to the complainant’s allegation is that she was discriminated against based on sex. It is well established in human rights jurisprudence that a complainant has the initial burden of establishing a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (O’Malley), the Supreme Court of Canada described the nature of a prima facie case of discrimination.

28 […] The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination.  A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent employer.  […]

60The initial burden then is on the complainant to establish a prima facie case of discrimination. Once the prima facie case is established, the onus then shifts to the respondent to disprove the allegations or prove that there is a reasonable explanation to justify what may appear to be a discriminatory practice.

61Sex is a prohibited ground of discrimination under subsection 3(1) of the CHRA. The Tribunal must determine whether the complainant has established a prima facie case that she received adverse differential treatment from the respondent and, if so, that sex was a factor in this treatment.

62The complainant’s evidence is that she, a female, told Ms. Oyet that it would be inconvenient for her to attend an interview on November 9, 2007 and was not permitted to reschedule to another date. However, a male candidate was able to reschedule his interview on November 19, 2007. She claims that the changing information regarding the date of the interview affected and upset her. She states that she did not have adequate time to think and properly prepare for the interview, which affected her performance. She was ultimately told that she failed to meet three essential qualifications for the position. The Tribunal is satisfied that this evidence, if believed, is sufficient to establish on a prima facie basis that the complainant received adverse differential treatment based on her sex. The onus shifts to the respondent to disprove the prima facie evidence or provide a reasonable explanation for the conduct.

63The respondent’s explanation is that the complainant did not request an alternate date for her interview and another candidate, who happens to be male, did. He requested an alternate date because he was not available on November 9, 2007 due to work commitments, which the assessment board accepted as a valid reason for granting his request. The assessment board decided to interview him on November 19, 2007.

64The issue, therefore, is whether the complainant also requested another date for her interview and, unlike the male candidate, was refused.

65On this matter, there are again two versions of what was said during the November 1, 2007 telephone conversation between the complainant and Ms. Oyet. Applying the test in Faryna, the Tribunal finds that it is Ms. Oyet’s version that is in harmony with the preponderance of the probabilities.

66In her testimony before the Tribunal, the complainant explained that, at that time, her father was in hospital. It is understandable, in those circumstances, that any date would be inconvenient to have to attend an assessment interview. However, the complainant did not tell Ms. Oyet about her circumstances; in her testimony she stated that it was not Ms. Oyet’s business. Moreover, the complainant provided no explanation, at that time or during the hearing, as to whether or why November 9, 2007 specifically was a problem.

67When it was discovered that the complainant’s notice of the PSC test was not received on the date it was sent, Ms. Oyet obtained confirmation from the complainant that the date and the location of the test would still be suitable. As the complainant pointed out, Ms. Oyet was in contact with her frequently throughout the appointment process. Also, although the complainant was in direct contact with Mr. Goulding before her interview, she did not raise the issue of her interview date, nor did she report any inappropriate conduct on Ms. Oyet’s part. None of the evidence is demonstrative of the attitude or conduct that the complainant is attributing to Ms. Oyet in the present complaint. On the contrary, the evidence demonstrates that the respondent was mindful of the candidates’ concerns, including the complainant’s, and that it was willing to be flexible. Most importantly, Ms. Oyet relayed another candidate’s request to change his interview date to the assessment board. She knew that it might be possible to change the date but it was not her decision to make.

68The Tribunal finds that Ms. Oyet’s recollection best reflects the content of her November 1, 2007 telephone conversation with the complainant.

69The Tribunal is satisfied that the respondent has provided a reasonable explanation for its conduct, which is unrelated to the sex of the candidates. The male candidate provided Ms. Oyet with a clear request with reasons, for the postponement of his interview. She did not receive a similar request from the complainant. The evidence does not demonstrate that the complainant was adversely impacted by being interviewed on November 9, 2007. The Tribunal finds that, while some uncertainty was created as a result of the series of communications that took place before the date and time of her interview was settled, this happened over a period of only two days. In addition, although the complainant may have been surprised to learn that another candidate would be interviewed at a later date, this information could not have affected the complainant’s performance during her interview because she obtained it after her interview was complete. Moreover, while the complainant stated that she was unable to properly prepare for the interview, she also stated that she did manage to do some research and that the interview was based on the BBA submission that she had already completed prior to the interview. Other evidence confirms that the same three essential qualifications were assessed by the BBA and the interview. Furthermore, as the complainant herself conceded, studying in advance would not have been of assistance in the interview.

70The Tribunal is therefore not persuaded that the complainant suffered any adverse consequences as a result of the alleged differentiation in treatment.

71Accordingly, the complainant has not established that the respondent discriminated against her on the basis of sex or that the respondent treated her unfairly. The allegation of abuse of authority has therefore not been substantiated.

Decision

72For all these reasons, the complaint is dismissed.

Merri Beattie

Member

Parties of Record

Tribunal File:

2008-0091

Style of Cause:

Penelope Henneberry and the Deputy Minister of Fisheries and Oceans Canada

Hearing:

January 22 – 23, 2009
Halifax, Nova Scotia

Date of Reasons:

July 5, 2010

Appearances:

For the complainant:

Louis Bisson

For the respondent:

Sean Kelly