FPSLREB Decisions

Reasons for Decision

Introduction

1The complaint concerns the acting appointment of Wendy Martin to a Human Resources Project Officer position at the AS-02 group and level in the Correctional Service of Canada (CSC). The complainant, Lisa Lopez, is a CR-05, Human Resources Generalist at the Pacific Institution and Regional Treatment Centre in CSC. She alleges abuse of authority in the choice of a non-advertised appointment process. She also believes that the actions of the hiring manager, Susan McKenzie, constituted personal favouritism. Furthermore, she alleges that there has been abuse of authority in the application of Public Service Commission (PSC) and CSC policies and in the assessment of Ms. Martin.

2The respondent, the Commissioner of the Correctional Service of Canada, denies that there was an abuse of authority. It argues that the choice of a non‑advertised process was within the manager’s discretion and appropriate in the circumstances. Furthermore, the respondent argues that personal favouritism did not play a role in the acting appointment. Finally, the respondent submits that Ms. Martin was properly assessed and that the assessment complied with PSC and CSC policies.

Background

3In May 2007, Ms. McKenzie, Regional Administrator, Pacific Region, CSC sought approval from senior management in her region to add a position to her office. Ms. McKenzie’s request was approved. A lengthy classification process followed.

4In November 2008, Ms. McKenzie requested that Ms. Martin be appointed to the new position on an acting basis. The request was accompanied by an assessment stating that Ms. Martin met the essential qualifications for the AS-02 position.

5On December 3, 2008, an Information Regarding Acting Appointment (IRAA) notice was published on Publiservice. The duration of Ms. Martin’s acting appointment was two years from April 1, 2007 to April 1, 2009.

6The complainant filed her complaint with the Public Service Staffing Tribunal (the Tribunal) on December 17, 2008 pursuant to paragraph 77(1)(b) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

Issues

7The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in choosing a non-advertised appointment process?
2. Did the actions of Ms. McKenzie amount to personal favouritism?

Summary of Relevant Evidence

8When human resource functions in the region became centralized in 2004, the office of the Regional Administrator, Human Resources (the office) consisted of the Regional Administrator, Ms. McKenzie, and an administrative assistant at the CR-04 group and level. The complainant held the CR-04 position, but was on assignment to the Regional Treatment Centre at the time Ms. McKenzie became the Regional Administrator. Ms. McKenzie brought in Ms. Martin to temporarily fill the CR-04 position while the complainant was on assignment. Ms. McKenzie and Ms. Martin both worked at Matsqui Institution before moving to Regional Headquarters. Ms. McKenzie confirmed that she has worked with Ms. Martin in the Regional Administrator’s office since 2005 and that they have a professional working relationship.

9When the complainant’s assignment came to an end, she said that Ms. McKenzie informed her that she could return to Regional Headquarters, but she would be given duties other than those of her substantive position. The complainant testified that she did not feel welcome to return to her substantive position so she deployed, in June 2006, to Human Resources at the Regional Treatment Centre.

10In the spring of 2007, Ms. McKenzie and her manager concluded that the office needed a junior project officer for more complex work; the CR-04 position would be retained to deal with less demanding tasks, like leave, mail and messages.

11Ms. McKenzie described a lengthy process to create the new position which was filled, first on an acting basis, then indeterminately, by Ms. Martin. She started drafting the work description in May 2007 with the aid of work descriptions for similar positions from the Chief of Classification. Ms. Martin was aware that Ms. McKenzie was working on the work description; however, Ms. McKenzie made no promises to Ms. Martin and, until the classification process was completed, Ms. McKenzie did not know what the final classification level would be. Ms. McKenzie explained that there was no position during this process and, thus, there could be no appointment. She stated that if the classification decision had been finalized in June 2007, she would have given Ms. Martin an acting appointment retroactive to April 1, 2007, and started the advertised appointment process immediately.

12Following a number of drafts, and assistance from a consultant, the work description was finally presented to a classification committee in March 2008, which recommended an AS-02 classification. During the hearing, the complainant asked Ms. McKenzie a number of questions about the work description. Ms. McKenzie could not explain what knowledge of the Immigration and Refugee Protection Act was required to carry out the duties of the position. She stated that this section of the work description listed examples of acts and policies relevant to the job and she assumed there was some link to human resources management. Ms. McKenzie interpreted the reference to intelligence analysis in the work description to mean that the incumbent was responsible for analyzing data, determining its relevance and reporting on it.

13Since the new position involved a change to an organizational structure, it needed the approval of the National Human Resources Management Committee (NHRMC). A submission was sent to the NHRMC in late April or early May 2008. However, it was too late for the May meeting. It was approved by the NHRMC at its next meeting on September 25, 2008. The position was only ready to be staffed in November 2008, after CSC’s Classification unit changed the organization chart, a position number was assigned and an effective date retroactive to April 1, 2007 was established.

14An organization chart showing two options for a Standardized Organizational Model was introduced. The complainant noted that there is no AS-02 project officer in the client services stream on the chart. In fact, she stated that there is no similar project officer position in CSC except for Ms. Martin’s. Ms. McKenzie explained that this is a model for generic Personnel Administration (PE) positions and, since the AS-02 is not a PE position, it is not on the chart. The complainant disagreed, stating that the models also show CR and AS positions.

15Ms. McKenzie completed an assessment of Ms. Martin against the Statement of Merit Criteria (SMC) for the AS-02 position. The assessment is dated November 25, 2008. The complainant provided a number of examples where she believes that Ms. McKenzie erred in her assessment of Ms. Martin. For example, in assessing her experience with software programs, Ms. McKenzie comments on her in‑depth knowledge of these programs, but a knowledge narrative is inappropriate in an assessment of experience. She also stated that it was inappropriate for Ms. McKenzie to comment on Ms. Martin’s abilities, when assessing her knowledge of administrative and office management procedures. As well, Ms. McKenzie did not appropriately assess Ms. Martin’s knowledge of CSC human resources priorities.

16In her testimony, Ms. McKenzie elaborated on the written rationale contained in the completed CSC Checklist for Non-Advertised Appointment Process (the Checklist) proposing the acting appointment for the period April 1, 2007 to April 1, 2009. Ms. McKenzie explained that, at the time of the acting appointment, the office was approaching the last few months of the 2008/09 fiscal year and, in the interests of continuity and consistency, she needed Ms. Martin to continue the work she was doing until March 31, 2009. Ms. Martin was involved in a highly confidential project on performance pay for non-executives and a very large project involving the payment of penological factor allowances.

17Ms. McKenzie was presented with a CSC Bulletin on Acting Appointments (the Bulletin) and was asked how she ensured that Ms. Martin’s acting appointment met the appointment values of fairness, access and transparency. Ms. McKenzie stated that the process was fair because Ms. Martin had been performing the duties of the position and she had been assessed against the SMC and found qualified for the job. It was transparent because when she was able to make and post the appointment she did so. With respect to access, Ms. McKenzie testified that the situation was unique and she needed to appoint Ms. Martin because of these unique circumstances.

18Ms. McKenzie testified that there are no specific guidelines on the length of acting appointments in CSC and that managers make this determination based on operational requirements and a variety of other factors. She agreed that the Bulletin provides that acting appointments should not normally exceed 12 months. However, she noted that the word “normally” means they may go beyond 12 months and the length of the appointment was warranted by the unique circumstances in this case.

19The complainant introduced emails sent by Ms. Martin on December 19, 2008, in which she identifies her position as “Assistant to the RA (Regional Administrator) Human Resources” and “Human Resources”, even though she had been appointed “Project Officer” on December 3, 2008.

20When the complainant saw the IRAA in January 2009, she immediately began an email exchange with Ms. McKenzie asking for an opportunity to act in the position while the advertised appointment process to fill the position indeterminately was in progress. Ms. McKenzie informed her that Ms. Martin would continue to act until April 1, 2009, and she would consider other persons for rotational acting opportunities thereafter, if required. Ms. McKenzie was aware of Ms. Lopez’s interest in a developmental assignment at the time of the acting appointment; however, putting anyone other than Ms. Martin into the position would have created disruption and a need for training.

21The complainant also introduced an IRAA notice concerning a one year appointment for a Coordinator, Anti-Harassment and Mediation position which reports to Ms. McKenzie. Although the appointment extended beyond four months, no one else was given the opportunity to be considered. According to the complainant, the educational requirements in that appointment process were reduced to fit the person appointed. She further noted that the person appointed had also worked at Matsqui Institution when Ms. McKenzie worked there.

22The AS-02 position existed on a human resources organization chart for the Regional Headquarters Pacific dated November 19, 2008, and Ms. Martin’s acting appointment was formalized on December 3, 2008, but the indeterminate appointment was not advertised until January 23, 2009. Ms. McKenzie explained that she was preparing the paperwork and the assessment tools for the advertised appointment process while she was processing the acting appointment. She anticipated completing the advertised process by the end of March 2009 when Ms. Martin’s acting appointment would end.

Arguments of the parties

A) Complainant’s arguments

23The complainant alleges abuse of authority in the choice of a non-advertised process. She argues that the respondent contravened PSC and CSC policies on non‑advertised appointments, as well as the Bulletin. The Checklist usedin this case failed to address the staffing values of transparency, access, fairness and representativeness. The Bulletin was not followed since, among other things, this acting appointment exceeded 12 months, and no notice was immediately provided as required once the appointment went beyond four months. She also submits that the justification used implies that the choice of process was based, falsely, on urgency.

24The complainant also alleges personal favouritism based on the following. First, the prior working relationship between Ms. McKenzie and Ms. Martin led to the latter being chosen to backfill the complainant’s position in the office. Secondly, the work description was specifically tailored for, and created solely for the benefit of, Ms. Martin. Thirdly, Ms. McKenzie created the SMC. Fourth, no Signed Statement of Persons document was produced by the respondent. Fifth, Ms. Martin had an unfair advantage in the subsequent indeterminate process since she had been acting in the position for two years. Sixth, the complainant specifically asked for, and was denied, an opportunity to act in the position on a rotational basis. Lastly, there was a similar pattern of favouritism when Ms. McKenzie appointed another person who had worked in Matsqui Institution.

25The third allegation raised by the complainant relates to Ms. McKenzie’s assessment of Ms. Martin. She alleges that it was improper for Ms. McKenzie to comment on Ms. Martin’s knowledge when she was assessing experience, and on her abilities when she was assessing knowledge.

B) Respondent’s arguments

26In response to the complainant’s allegation concerning choice of process, the respondent submits that Ms. McKenzie had discretion under section 33 of the PSEA in choosing between an advertised and a non-advertised appointment process. The classification process, which needed to be finalized before staffing the position, was not solely within her control. The long retroactive period was not the result of bad faith or carelessness. Having Ms. Martin act in excess of 12 months can be justified for the reasons explained by Ms. McKenzie. When the classification process was completed, Ms. McKenzie had the right, as a manager, to appoint Ms. Martin on a non-advertised acting basis to avoid long periods of training and to maintain continuity. Ms. McKenzie never said that the acting appointment was urgent; she testified that the delays were out of her control. The respondent submits that the Tribunal has no jurisdiction to deal with the classification process.

27The Checklist completed by Ms. McKenzie provided the rationale for Ms. Martin’s acting appointment and stated that an advertised appointment process would be conducted to staff the position indeterminately, to ensure access, fairness and transparency. The Job Opportunity Advertisement for the indeterminate advertised appointment process was posted on January 23, 2009, two months after the acting appointment was formalized, which was a reasonable delay since Ms. McKenzie had to develop the assessment tools.

28In response to the allegation of personal favouritism, the respondent relies on Glasgow v. Deputy Minister of Public Works and Government Services Canada et al., [2008] PSST 0007, to argue that the complainant must demonstrate personal favouritism in the appointment process in order to prove abuse of authority. Ms. McKenzie testified that the nature of her relationship with Ms. Martin is strictly professional. There is no direct evidence of personal favouritism in this case. Working together is not evidence of a personal relationship. As well, the respondent submits that there was no unfair advantage since Ms. Martin was the right fit in April 2007 so the delay did not provide an advantage. As well, the respondent submits that the complainant has not shown how the acting appointment of a Regional Coordinator, Anti‑Harassment and Mediation is relevant to this case. Finally, there is nothing wrong with using the same SMC for both the acting appointment and the advertised process since the position is the same.

C) Public Service Commission’s arguments

29In its written submissions, the PSC does not take a position on the complainant’s allegations of personal favouritism. The PSC is satisfied that its Assessment Policy was followed in the assessment of Ms. Martin. However, the PSC submits that, in this case, not all PSC policies were fully complied with.

30Under the PSC’s Choice of Appointment Process policy, deputy heads are required to review and monitor acting appointments which exceed 12 months. There is no indication in the documents that there was any monitoring of this nearly two year acting appointment. The PSC also submits that it was clearly an error to check the box for “acting appointments including extensions less than 12 months” in the written rationale, since the acting appointment was for two years.

31The PSC is also concerned that the guiding values of fairness, transparency and access did not receive sufficient attention. In terms of fairness, the PSC submits that one could argue that giving just one employee the chance to act in the position for a long period would give this person an unfair advantage. According to the PSC, the job description was finalized in March 2008, but the Staffing Request and Assessment of the appointee was not signed until November 2008, and the IRAA notification was not posted until December 2008. This raises questions of transparency. It also raises questions of access and fairness since, if the notification had been sent earlier, the deputy head might have realized that the complainant was interested in the position and could have provided her with a rotational acting opportunity. The PSC notes that the hiring manager still had the opportunity to offer rotational acting appointments when the complainant made her request in December 2008 but chose not to do so, without providing reasons.

32Finally, the PSC submits that it is unclear whether the deputy head complied with its own Bulletin on Acting Appointments. According to the Bulletin, acting appointments will support a balance between providing temporary developmental opportunities and ensuring that employees have fair access to promotional opportunities. There is no indication on file that the hiring manager considered, or searched for, other interested candidates during the two year time period.

D) Respondent’s Reply Argument

33The respondent replied to the PSC’s concerns with respect to unfair advantage. The respondent reiterates that the delay in appointing Ms. Martin was due to the classification process. Ms. McKenzie had determined that Ms. Martin was the right fit for the position and she was ready to appoint her earlier if the classification process had proceeded more quickly. There is no evidence that Ms. McKenzie slowed down the process to advantage Ms. Martin.

34The respondent also argues that since the AS-02 position was created in the fall of 2008, there was no need to establish a review committee under the PSC’s Choice of Appointment policy. Furthermore, the box checked by Ms. McKenzie on the CSC’s Checklist refers to extensions, not to acting appointments in general.

35With respect to the PSC’s concern that the work description was finalized in March 2008, but the IRAA was not issued until December 2008, the respondent relies on Ms. McKenzie’s testimony that the position required the approval of the NHRMC, which did not occur until the fall of 2008.

Analysis

Issue I: Did the respondent abuse its authority by choosing a non-advertised appointment process?

36The Tribunal has established that merely choosing to conduct a non-advertised process is not an abuse of authority in itself. A complainant must prove, on a balance of probabilities, that the decision to choose a non-advertised appointment process was an abuse of authority. See, for example: Rozka et al. v. Deputy Minister of Citizenship and Immigration Canada et al., [2007] PSST 0046.

37The main allegation presented here is essentially one of bad faith. As the Tribunal explained in Rajotte v. President of the Canada Border Services Agency et al., [2009] PSST 0025:

[79] The complainant is alleging that the respondent failed to be transparent and did not comply with its obligations in choosing a non-advertised process. This is essentially an allegation of bad faith.

[80] The Tribunal has recognized in its decisions that bad faith is established where there is direct or circumstantial evidence of improper intent, bias, lack of impartiality or when an irrational procedure leads to a finding that is incompatible with the exercise of the delegated manager’s staffing authority.  Bad faith has also been given a broad meaning that does not require improper intent where there is serious carelessness or recklessness [...]

38Both the complainant and the PSC argued that the respondent would have better met the values of access, fairness and transparency if it had rotated the acting opportunity, rather than appointing Ms. Martin to act until April 1, 2009. The preamble to the PSEA refers to fair and transparent employment practices.

39In Robert and Sabourin v. Deputy Minister of Citizenship and Immigration et al., [2008] PSST 0024, at paragraph 60, the Tribunal stated:

[60] Policies of the PSC also ensure that there are transparent employment practices. The policy on notification requires that persons in the area of recourse are notified of their right to complain. With respect to non-advertised appointment processes, PSC policy requires that deputy heads establish and communicate criteria for the use of non-advertised processes, and requires a written rationale. These requirements ensure that there is a written record of decisions made.

40On its face, a two-year acting appointment by way of a non-advertised process is lengthy. However, the Tribunal finds, on the evidence, that there was no position until November 2008. Ms. McKenzie’s delay in finalizing the assessment and acting appointment of Ms. Martin was minimal. Ms. McKenzie was not able to make an appointment to the new AS-02 position before November 2008. The position did not officially exist until that date, even though it was established retroactively to April 1, 2007. Given these circumstances, if anyone was to be appointed retroactively to the position, it would be Ms. Martin. She was the only one who performed the duties of the position during the retroactive period.

41In her testimony, Ms. McKenzie explained why she required the acting appointment of Ms. Martin to continue until April 1, 2009. The operational requirements identified for requiring the continuity of Ms. Martin in the position, such as the very large project involving the payment of penological factor allowances, were not challenged by any contrary evidence at the hearing. The complainant’s argument that Ms. McKenzie’s justification implied a false sense of urgency is not borne out by the evidence.

42In the circumstances, the purpose to be served by a monitoring function, as provided in the PSC’s Choice of Appointment Process policy, is not apparent. According to the evidence, there was no acting appointment to monitor until the appointment was made in December 2008, and the acting appointment only continued for five months after that. However, it was an error to check the box for “acting appointments including extensions less than 12 months” in the CSC’s Checklist since the acting appointment was for two years. The respondent should have checked the “Other” box. If the “Other” box is checked, it is necessary to provide a rationale in the appropriate section on the form. A written rationale explaining, among other things, the delays involved in classifying the new position, was provided by Ms. McKenzie.

43Except for this error, the Tribunal finds that the measures taken in this case to ensure transparency were adequate: the CSC has a Checklist; a written rationale was prepared, which clearly identified the classification and internal departmental delays, together with the need for a retroactive appointment; and, notice of the right to recourse was provided. As well, there is ample documentation concerning the steps taken to establish the new position. There is no evidence to support a finding that Ms. McKenzie surreptitiously went about appointing Ms. Martin to the position on an acting basis.

44The Tribunal, therefore, concludes that the delays that may be attributed to Ms.McKenzie, and the error identified above, are not serious enough to support an allegation of bad faith.

Issue II: Did the actions of Ms. McKenzie amount to personal favouritism?

45The Tribunal addressed the issue of personal favouritism in Glasgow. At paragraph 44, the Tribunal stated:

[44] Evidence of personal favouritism can be direct, such as facts establishing clearly the close personal relationship between the person selecting and the appointee.  However, it will often be a question of circumstantial evidence where some action, comments or event prior to, and during, the appointment process will have to be reviewed […]

46The complainant alleges that Ms. McKenzie and Ms. Martin had a personal relationship because both had worked at the Matsqui Institution and Ms. McKenzie brought Ms. Martin to work for her at Regional Headquarters. Ms. McKenzie testified that her relationship with Ms. Martin is professional. No evidence was submitted regarding the working relationship, if any, that existed between Ms. McKenzie and Ms. Martin when they both worked at Matsqui Institution. Furthermore, no direct evidence of a personal relationship between Ms. McKenzie and Ms. Martin was presented. The fact that two people worked in the same workplace is not, by itself, evidence of a personal relationship.

47Circumstantial evidence of personal favouritism was offered by the complainant. The complainant claims that, seeking to compensate Ms. Martin at a higher level, Ms. McKenzie searched for and found a work description at a higher classification and modified the work description specifically to favour Ms. Martin. She also alleges that the assessment of Ms. Martin against the merit criteria was improper and supports her position that there was personal favouritism in this process.

48In Beyak v. Deputy Minister of Natural Resources Canada et al., [2009] PSST 0035, at paragraph 185, the Tribunal stated:

[185] […] Preparing a work description that does not reflect the actual duties of the position to ensure a higher classification and therefore a higher salary in order to reward an employee is personal favouritism. Establishing the essential qualifications of the position and assessing an employee to ensure his or her appointment without regard to the actual requirements of the position is also personal favouritism. Appointing an employee who does not meet the essential qualifications of a position because the manager wants to reward that employee also constitutes personal favouritism.

49While the complainant’s allegations of personal favouritism are similar to those raised in Beyak, the evidence in this case does not support a finding of personal favouritism.

50The original request for a new position was made in May 2007. Ms. McKenzie developed the first two drafts of the work description with assistance from CSC’s classification group. It was then reviewed by a consultant, a classification committee and finalized by the departmental classification group. The position was also reviewed by the NHRMC, when it approved the new organizational structure. There is no doubt that Ms. McKenzie influenced the content of the work description, but there is no evidence, other than a possibly redundant reference to the Immigration and Refugee Protection  Act, that the job description fails to accurately reflect the needs of the office and the duties to be performed in that position. Ms. McKenzie acknowledged that Ms. Martin was aware that a work description was being developed, but there is no evidence that Ms. Martin played any part in its development.

51According to the complainant, by using the same SMC for both the acting and indeterminate processes, Ms. McKenzie essentially pre-qualified Ms. Martin for the indeterminate appointment. The SMC sets out the qualifications, including the essential qualifications, for the position. There was an interval of only two months between the assessment of Ms. Martin for the acting appointment that was dated November 25, 2008 and the Job Opportunity Advertisement for the indeterminate appointment, which was posted on January 23, 2009. No evidence was presented that there were changes to the position during this two month period that required any alterations to the SMC.

52Paragraph 30(2)(a) of the PSEA provides that a person may be appointed provided the Commission or its delegate is satisfied that he or she meets the essential qualifications for the work to be performed.

53The complainant cites a number of examples which she believes demonstrate that Ms. McKenzie did not properly assess Ms. Martin for the acting appointment. Ms. McKenzie testified that Ms. Martin had the requisite experience and knowledge qualifications for the position. The Tribunal is satisfied that, in her assessment of Ms. Martin, Ms. McKenzie confirms that she has the experience or knowledge required for each of the essential qualifications. The Tribunal finds that the complainant has failed to prove that Ms. Martin lacked one or more of the essential qualifications for the position.

54In support of her allegation of personal favouritism, the complainant also asserts that Ms. McKenzie did not sign a Signed Statement of Persons certifying that she does not have a relationship with the candidate and will act in an impartial and non-biased manner. However, there is no evidence before the Tribunal to make findings as to whether this document was in fact signed and, if not, whether Ms. McKenzie was required to sign it.

55The Tribunal places little weight on the complainant’s evidence regarding the appointment of a Regional Coordinator, Anti‑Harassment and Mediation, This evidence only shows that Ms. McKenzie and Ms. Martin had both worked at Matsqui Institution. As explained above, the fact that two people worked in the same workplace is not, by itself, evidence of a personal relationship.

56The Tribunal is an adjudicative body and, as such, it is for the parties to produce the necessary evidence through documents and examination of witnesses to support their respective cases.

57Based on the evidence presented at the hearing, the Tribunal finds that the complainant has not established that there was a personal relationship between Ms. McKenzie and Ms. Martin. The Tribunal, therefore, concludes that the complainant has not proven that the actions of Ms. McKenzie, when considered individually or collectively, amounted to personal favouritism.

Other

58The complainant asserts that the AS-02 position may not have actually existed for some or all of the retroactive period and that Ms. Martin attempted to hide her appointment by signing emails without using her new position title. The Tribunal finds that there is abundant documentation related to the creation, approval and staffing of the AS-02 position, including the IRAA noticethat gave rise to this complaint. The Tribunal also finds that if the AS-02 position does not involve any responsibility for the Immigration and Refugee Protection Act, then it was careless to include it in the work description. However, the Tribunal does not find this error to be serious enough to amount to an abuse of authority in the appointment process.

59In conclusion, the complainant has not proven an abuse of authority.

Decision

60For the above reasons, the complaint is dismissed.

Kenneth J. Gibson

Member

Parties of Record

Tribunal File:

2008-0813

Style of Cause:

Lisa Lopez and the Commissioner of Correctional Services Canada et al.

Hearing:

January 19 and 20, 2010
Abbotsford, British Columbia

Date of Reasons:

June 14, 2010

Appearances:

For the complainant:

Lisa Lopez

For the respondent:

Martin Charron