FPSLREB Decisions

Reasons for Decision

Introduction

1Victoria Morgenstern applied for the position of Regional Coordinator (Community Mental Health Initiative) (AS-07) with Correctional Service of Canada in Toronto, Ontario. She was found not qualified and alleges that the Statement of Merit Criteria (SMC) was improperly altered during the process with the result that the appointed person, who did not meet the essential qualifications for the position, was screened into the process and found qualified, and that the assessment of her own personal suitability was flawed.

2The respondent, the Commissioner of the Correctional Service of Canada, initially asserted that there was no abuse of authority. During the hearing, it admitted errors in the process and informed the Tribunal that the appointment in issue had been revoked. This is discussed in greater detail below.

Background

3The complainant responded to a Job Opportunity Advertisement posted online on Publiservice. The first step in the process was the screening of candidates through an examination of their application documents to determine whether they met the education and experience criteria.

4The complainant was found to meet the screening criteria and she was invited to an interview, held on January 13, 2009. As requested, she supplied “a list of two work related references (immediate supervisor(s) peer)”. After the interview her references were contacted.

5The references were the only tool used to assess the personal suitability qualifications of leadership, judgement, initiative and flexibility. Based on the complainant’s references, she was found not to meet the essential personal suitability qualification of leadership. Her personal suitability was not assessed further and she was advised on February 20, 2009 that she had not been found qualified.

6On February 24, 2009, the respondent posted a Notice of Consideration of Jennifer Gravelle for the position. A Notice of Appointment or Proposal of Appointment (NAPA) followed on March 9, 2009. On March 24, 2009, the complainant filed a complaint of abuse of authority pursuant to s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA).

Summary of Relevant Evidence

7There were five education and experience criteria used to screen the candidates in this appointment process. Two experience criteria are in issue: Experience in a community or institutionally-based managerial and leadership role (E1), and Experience managing an interdisciplinary team (E2).

8The complainant extensively reviewed the application documents of the selected candidate, Ms. Gravelle, in her testimony. In her view, the experience described by Ms. Gravelle reflected standard nursing practice. The complainant considered that while Ms. Gravelle was “clearly a good nurse,” she was not a manager or a leader. She had co-facilitated interdisciplinary teams or had participated as a member, but she had not managed or led them. She did not manage clinics, staff or budgets. As such, Ms. Gravelle had not demonstrated management experience to satisfy either E1 or E2.

9The respondent provided the definitions for E1 and E2 that were used and applied by the assessment board:

Experience in a community or institutionally-based managerial and leadership role. Broadly defined, the Board considered any experience in either a managerial position and/or a leadership role.

Experience managing an interdisciplinary team. Broadly defined, the Board considered any experience in either managing an interdisciplinary team and/or leading an interdisciplinary team.

10Dr. Tony Glover was a member of the assessment board. He participated only in the screening of candidates. Dr. Glover testified that the board viewed management and leadership as synonymous. In the board’s view, a candidate could demonstrate either a management or a leadership role and satisfy the requirements of E1 and E2.

11Dr. Glover gave examples of the board’s approach. He stated that if a candidate had been given the task of assigning work to others, even for a few shifts as a charge nurse for example, they would satisfy the requirements of E1. With respect to E2, Dr. Glover indicated that chairing a meeting would satisfy the board that a candidate had met the requirement to manage an interdisciplinary team. A candidate was not required to demonstrate experience with either financial or staffing authority.

12Dr. Glover testified that Ms. Gravelle was found to meet the E1 and E2 experience criteria based on the statement in her application that “I believe my experience in leading the interdisciplinary treatment team with program development, implementation and evaluation will assist me in this position along with good communication skills and the ability to liaise with community resources.” Ms. Gravelle also stated that she led psychiatric clinics and treatment team reviews. Dr. Glover testified that Ms. Gravelle appeared to have no administrative duties related to clinic management and no financial or human resources authority. However, the board’s view was that she would have set up clinics, determined which patients received an appointment and saw a psychiatrist. For these reasons, she was found to meet E1 and E2.

13Turning to the assessment of personal suitability, the board defined the leadership qualification as follows:

PS-1: Leadership

• The capacity to effectively influence the opinions, attitudes and behaviour of others;
• The capacity to command attention and respect;
• The capacity to give guidance and direction to subordinates;

The capacity to inspire others to greater efforts; to motivate a willingness to accept responsibility.

14The complainant’s reference documents were introduced as evidence. The complainant’s first referee was Joan Graham, a former colleague and manager. The leadership portion of her reference was recorded in a question and answer format, as follows:

Describe the candidate’s capacity to: (provide examples)

a) Lead an initiative for the achievement of tangible results?

Victoria is respected as a very competent nurse and someone who takes her responsibilities seriously.

In staff meetings she has presented she has been very articulate and clear in discussions about issues related to our work. She is a professional in the truest sense.

b) Manage staff in an effective and motivating manner?

As noted above she is very capable of this task. She gets her messages across in clear and nonjudgmental manner. It is clear her goals are to do the best for her clients.

15The complainant testified that although the referee’s comments were brief, the terms she used to describe her were significant in a nursing context. The use of the word “professional” necessarily implied leadership and in the complainant’s view, the referee was saying that the complainant emulated the leadership role that nurses have to take. For this reference, the complainant’s score was 1/5 for leadership.

16The complainant also reviewed the reference given by Dan Barker, Manager Foreign Worker Programs for Service Canada in Ontario. Mr. Barker indicated the excellent work done by the complainant during a period of large scale change. He found her loyal, flexible and trustworthy. He added that although she required the most coaching among the supervisors at the time, he would hire her again.

17The complainant testified that when she was the supervisor for three Service Canada offices, she reported directly to Mr. Barker. She reviewed his statement that she had needed the most coaching among his supervisors and explained that, as recorded in his reference, she was new to supervision in the public service and this was the area in which she received coaching. She noted that Mr. Barker indicated her ability to achieve “buy in” at many levels during a period of great change led by her. The referee stated that she did an excellent job and he would hire her again. For this reference, her score was 2/5.

18The complainant testified that after the conclusion of the appointment process, the chairperson, Mr. Brown, told her that her references were “okay” but “sparse.”

Submission of the Public Service Commission

19The Public Service Commission (PSC) presented a written submission. It noted that s. 16 of the PSEA obliges the respondent to conform to PSC policies when exercising its delegated staffing function.

20The PSC Appointment Policy (General) requires that appointments be based on merit. The PSC Policy on Advertising in the Appointment Process requires that “information is provided to allow persons in the area of selection to make an informed decision.” The PSC noted that neither the advertisement for the position nor the SMC expressed the managerial and leadership criteria as interchangeable, although this was the manner in which they were applied by the board. The PSC considered that transparency and fairness were at issue. This extended to the complainant, and equally to others who may have screened themselves out before applying as they did not meet the apparent requirement for both management and leadership experience.

Arguments

21The complainant argues that Ms. Gravelle was only screened into the appointment process because the assessment board materially altered the experience requirements. There was no evidence that Ms. Gravelle had managerial experience to satisfy either E1 or E2. In spite of the clear language of the SMC that required both managerial and leadership experience, the board considered them interchangeable rather than two distinct experience requirements. Because of the board’s approach, Ms. Gravelle was screened into the process in spite of her lack of management experience. This was an incorrect decision by the board that led to an improper result.

22In the matter of references, the complainant argues that if the board considered her references sparse, it could have asked the referees for more information.

23The respondent argues that while the appointment process was not perfect, it has taken steps to address the errors. These were detailed in the following written submission provided to the parties and the Tribunal during the course of the hearing:

This is to advise the Tribunal and all the parties that the sole appointment made as a result of the advertised appointment at the centre of this complaint has been revoked by the respondent on June 18, 2010.

The respondent admits that at least two errors have been committed in the appointment process.

1. The definitions used by the screening board had the effect of altering the experience essential qualifications as written on the statement of merit criteria (the SoMC). As written on the SoMC, the appointee does not meet all the essential qualifications. In addition, because of the wording of the SoMC, some potential candidates might have self-excluded themselves from the appointment process; and
2. The assessment of the personal suitability of the complainant was based on insufficient information. At the hearing, the complainant testified herself that there was no conflict between her and the assessment board members.

The respondent admits these errors but submits that they were committed in good faith. Other errors might have affected the process, but based on these two identified errors alone, the respondent has decided to cancel the whole advertised appointment process and will be launching a new advertised appointment process shortly.

24The respondent argues that notwithstanding the errors in the process, there is no bad faith. The error is in the incorrect application of the assessment tools by the board which altered the experience requirement and failed to properly assess the complainant’s personal suitability. This reflected carelessness by the board.

25Given the actions already taken, the respondent argues that the matters in issue are now moot.

Issues

26The Tribunal must determine the following issue:

Did the respondent abuse its authority in the application of merit in this appointment process?

Analysis

27The complaint was filed under s. 77(1)(a) of the PSEA which refers to s. 30(2) of the PSEA. These provisions appear below:

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);

(...)

30. ...

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

a) 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

b) 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.

28The Tribunal finds that the board acted improperly in applying the experience qualifications E1 and E2 in a way that changed them in substance. The plain meaning of E1 is that both management and leadership experience must be demonstrated. Similarly, the plain meaning of E2 is that a candidate must show management experience. The board erred by interpreting management experience and leadership experience as synonymous or interchangeable. If they were intended to be read in that way, the intention would have been apparent on the face of the SMC and it is not.

29The Tribunal finds that, in consequence of this error, the board improperly screened Ms. Gravelle into the appointment process. As she plainly did not have the management experience that was required for E1 and E2, her appointment does not conform to merit as it is set out in s. 30(2) above. She ought not to have been screened into the process. However, once she was, she proceeded through the full assessment and was appointed although she did not meet essential qualifications established for the position.

30In the matter of references, the respondent admits that it assessed the complainant based on insufficient information. Implicit in this admission is some acknowledgement that the references were not negative, but “sparse,” and that, in the circumstances of this case, particularly where references were the only tool used to assess personal suitability, the board failed or neglected to take reasonable steps to determine whether complete information was obtainable. The board might, for example, simply have asked the referees to elaborate. The Tribunal finds that it was unreasonable for the board to conclude its assessment without taking further action.

31The question remains whether the respondent’s actions are an abuse of authority. In Jolin v. Deputy Head of Service Canada, 2007 PSST 0011, the Tribunal held, at para. 67, that “abuse of authority is more than a mere error or omission.” The errors in the present case are significant and the Tribunal is satisfied that they are of such a serious nature as to constitute an abuse of authority.

32In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal discussed five categories of abuse of authority. They are:

1. When a delegate exercises his/her/its discretion with an improper intention in mind (including acting for an unauthorized purpose, in bad faith, or on irrelevant considerations).
2. When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters).
3. When there is an improper result (including unreasonable, discriminatory, or retroactive administrative actions).
4. When the delegate exercises discretion on an erroneous view of the law.
5. When a delegate refuses to exercise his/her/its discretion by adopting a policy which fetters the ability to consider individual cases with an open mind.

33 The respondent admits that it acted on insufficient material in the assessment of the complainant’s personal suitability. As the Tribunal noted above, implicit in the admission is that the board failed or neglected to take reasonable steps to determine whether a complete reference could be obtained. Proceeding on the basis of inadequate information corresponds to the second category above and constitutes an abuse of authority.

34 In altering the essential experience requirements, then appointing Ms. Gravelle, who did not meet them, the respondent failed to conform to the merit requirements of s. 30 of the PSEA. This was an improper result, corresponding to the third category of abuse of authority above.

35 An appointment to or from within the public service must be based on merit. This is a fundamental requirement of the PSEA. In Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 0044, the Tribunal held at para. 35:

Merit now relates to individual merit where the person to be appointed must meet the essential qualifications for the work to be performed. There is considerable flexibility in selecting the person to be appointed; however, the fundamental requirement in appointing a person on the basis of merit is that the person must be qualified for the position.

36 The PSC Appointment Policy (General) also requires that appointments be based on merit. As the Tribunal explained in Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0024, at para. 69, there is an obligation under the PSEA for deputy heads, and their delegates, to comply with PSC policies respecting the manner of making appointments.

37 As to the PSC Policy on Advertising in the Appointment Process, the Tribunal does not find an error in the respondent’s advertisement. As discussed above, the error occurred in the application and interpretation of the experience requirements by the assessment board rather than in the advertised criteria.

38 Lastly, the Tribunal finds that the effect of the series of errors and omissions identified above is greater than “mere error or omission.” Cumulatively, they amount to such serious carelessness as to reach the level of bad faith. See: Cameron and Maheux v. Deputy Head of Service Canada, 2008 PSST 0016, and Robert and Sabourin.

39 The respondent has argued that the matters in issue have become moot because it revoked the appointment and cancelled the process. The Tribunal finds that this is not a tenable argument.

40 The Tribunal’s jurisdiction over this complaint was established once the NAPA for Ms. Gravelle was posted and it cannot be ousted by the subsequent actions taken by the respondent. To paraphrase the Federal Court of Appeal in Lo v. Canada (Public Service Commission Appeal Board), [1997] F.C.J. No. 1784 (Q.L.), it would be too easy for a respondent to avoid the complaint process by moving to revoke an appointment or cancel a process. See also: Wylie v. President of the Canada Border Services, 2006 PSST 0007 at paras. 25-33, and Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 0035 at paras. 192-193.

Conclusion

41 The Tribunal concludes that the respondent abused its authority in the application of merit in this appointment process.

Decision

42 For all of these reasons, the complaint is substantiated.

Corrective Action

43 The PSEA sets out the corrective action that may be ordered by the Tribunal in s. 81(1), which provides that:

If the Tribunal finds a complaint under section 77 to be substantiated, the Tribunal may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate.

44The respondent has revoked the appointment of Ms. Gravelle, and cancelled the process. These actions address the flaws in the appointment process. The complainant, should she choose to apply as a candidate in the new process, may then be assessed anew.

45The complainant has asked the Tribunal to appoint her to the position on an acting basis. This action is outside the authority of the Tribunal as, pursuant to section 82 of the Act, the Tribunal may not order an appointment to be made.

46The Tribunal finds no basis for its intervention beyond the actions taken by the respondent.

Joanne B. Archibald

Member

Parties of Record

Tribunal File:

2009-0184

Style of Cause:

Victoria Morgenstern and the Commissioner of the Correctional Service of Canada

Hearing:

May 20, 2010, June 23, 2010
Toronto, Ontario

Date of Reasons:

October 15, 2010

APPEARANCES:

For the complainant:

Marija Dolenc

For the respondent:

Martin Desmeules