FPSLREB Decisions

Reasons for Decision

Introduction

1Curtis James (Jim) Robertson, the complainant, was eliminated from an appointment process conducted to fill four CR-04 Team Leader positions with the Department of National Defence (DND). He filed a complaint of abuse of authority as he believes that the assessment board was improperly influenced and that one of the members of the assessment board was in a conflict of interest when he acted as a reference for the complainant. The complainant also claims an abuse of authority because personal knowledge was used to assess his qualifications although there was no indication in the Job Opportunity advertisement that it would be, and because his elimination from the appointment process constituted an improper result.

2The respondent, the Deputy Minister of National Defence, denies that there was an abuse of authority. The respondent submits that the assessment board treated the complainant fairly in this appointment process. There was nothing to preclude one of the assessment board members acting as a reference; in fact, the complainant asked that person to be a reference. The assessment board was also entitled to consider negative comments in references. The respondent submits that the appointment value of fairness enshrined in the preamble to the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (the PSEA), Public Service Commission (PSC) policies, and the PSC staffing delegation instrument was respected in this appointment process.

Background

3In 2008, the respondent conducted an internal advertised appointment process to fill four positions of Team Leader, Mail Operations, at the CR-04 group and level. Although most of the CR-04 duties were the same as the CR-03 Mail Clerk positions, the CR-04 positions had the added responsibilities of coordinating activities and providing leadership to the CR-03s at the operational level. The incumbents of the Team Leader positions were also required to support the supervisors and managers to whom they reported, help identify gaps and provide training when required.

4On January 23, 2009, the complainant was advised that he had failed to meet the qualification of team player and, consequently, that he was eliminated from further consideration in the appointment process. Candidates’ team player qualifications had been assessed through an interview and references.

5The complaint filed pursuant to s. 77(1)(a) of the PSEA was received by the Public Service Staffing Tribunal (the Tribunal) on February 17, 2009.

Preliminary Matter

6The Tribunal was asked by the PSC to rule on the admissibility of the PSC/DND Appointment Delegation and Accountability Instrument (ADAI) sought to be entered by the complainant at the argument stage of the hearing. The Tribunal wishes to point out that the complainant should have sought to introduce this document during the evidentiary portion of the hearing. Nevertheless, pursuant to art. 99(1)(d) of the PSEA, the Tribunal possesses the authority to accept any evidence, whether admissible in a court of law or not. Moreover, under section 27 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, the Tribunal is master of its proceedings, and may determine the manner and order of the presentation of evidence and arguments at the hearing. There is no prejudice to any of the parties in the late introduction of the document. The complaint before the Tribunal involves the respondent’s use of an authority, delegated in accordance with the PSEA, to conduct an internal appointment process. In the field of human resources for the federal public service, it is common knowledge that this authority is delegated by the PSC to applicable departments and agencies by means of the ADAI. For these reasons, the Tribunal accepted the late introduction of the ADAI.

Issues

7To resolve this complaint, the Tribunal must determine the following issues:

1. Did the assessment board members act in a way that could raise a reasonable apprehension of bias?
2. Did the respondent abuse its authority when considering personal knowledge of the complainant and by his elimination from the process despite having acted previously in a position at a higher level?

Summary of Relevant Evidence

8The complainant works as a Mail Operations Clerk, at the CR-03 group and level, in the Directorate of Strategic Initiatives and Shared Support Services (the Directorate), with DND in Ottawa, Ontario. The complainant testified that he has always had very good performance at work; for instance, he has saved money on projects, would drive on short notice, and was ready to take on small projects whenever asked. He described himself as “old school” in that he may be a little abrupt whenever his naval background comes to the surface.

9The complainant acted as a Client Service Representative, at the CR-05 group and level, for a period of four months from the beginning of October 2008 until the end of January 2009.

10For the period relevant to this complaint, the complainant’s manager was Duncan Retson. Prior to taking a position with another organization in August 2009, Mr. Retson was the Manager of the Directorate’s Shared Support Services. His organization provided common administrative support services such as mail services and records management functions to about thirty offices across the NCR.

11Mr. Retson possesses extensive experience conducting internal and external appointment processes; mostly for CR (Clerical) and AS (Administrative Services) positions. He has received training and has been delegated by DND to conduct appointment processes. Mr. Retson was not involved in conducting the interviews or any of the reference checks in this appointment process. He explained that his role was to be available as a replacement member for the assessment board if the need arose, which did not occur in this instance. As the manager directly responsible for Shared Support Services, Mr. Retson decided who to appoint from among the qualified candidates.

12The Statement of Merit Criteria (SMC) for the Team Leader, Mail Operations positions was developed by Robert Villon, Mail and Records Manager, and Geneviève Gagnon, Human Resources, Finance and Administration Manager, in consultation with Mr. Retson. The assessment board for this appointment process was comprised of Mr. Villon and Richard Cloutier, Senior Operations Manager. They conducted the interviews of candidates and evaluated the references.

13Mr. Villon has been the Mail and Records Manager for the last three years. The section he manages is responsible for the screening and delivery of all incoming and outgoing mail, and also the provision of records management services. Mr. Villon has received training on conducting appointment processes and has gained a lot of experience since his section mostly employs entry-level positions.

14Mr. Villon played a key role in all aspects of this appointment process. In addition to his involvement in the establishment of the SMC, he participated in the development of the questions used to assess the qualifications, and conducted all of the interviews and reference checks. He consulted with Ms. Gagnon and Mr. Retson on these tasks. Mr. Villon and Mr. Cloutier conducted the interviews of candidates together. In each case, they would immediately score the candidate’s results before proceeding to the next interview. The assessment board also evaluated the references.

15The criterion “Team player” was included as an essential qualification for these positions since it was considered key to the success of anyone assuming the duties of Team Leader, Mail Operations. The incumbents of these positions have to work well with their staff and each other, as well as the various supervisors and managers to whom they reported. Mr. Villon confirmed that the ability to be a team player was essential to performing the duties of the Team Leader positions. Team player was defined in the interview questionnaire as follows: “Able to work with people in such a manner as to build high morale and group commitment to goals and objectives. Capacity to quickly establish good working relations with others.”

16The team player qualification was assessed through interview question 5 and references. Question 5 of the interview read as follows: “Describe a time when you had to support your team in the accomplishment of a common goal? You can draw this example from your teamwork, either professionally (in your work environment) or from outside the workplace.” An overall global mark was awarded. Candidates needed to obtain 7 marks out of a possible 10 for this essential qualification.

17The indicators used by the assessment board to assess the “Team player” qualification were set out in a rating guide and read as follows:

Indicators for interview and reference question:

• Work in collaboration
• Actively seeks other’s input
• Proactively keeps others informed making the effort to share all relevant information
• Demonstrates an awareness of and is sensitive to the impact of one’s own behaviours on others
• Creates a climate that encourages and values a diversity of ideas, thinking and individual concerns
• Creates opportunities for others to express their feelings, views and opinions
• Reinforces positive behaviours and influences within the group
• Accepts differences of opinion and resolves conflict in a non-threatening way
• Recognizes the work and achievements of others
• Is willing to compromise in order to reach agreement with others

18The assessment board awarded a partial score of 3 minus (3-) for the complainant’s response to the interview question. The assessment board considered the complainant’s answer to be weak since it did not indicate that he would seek input either from his team members or from others.

19The complainant provided the names of the following two individuals as his references: Mr. Cloutier and Donald Stroud. He recalled having asked each of them to be as frank and honest as possible.

20The reference check questionnaire was sent electronically. Persons providing references could choose to complete the document electronically and return it in the same manner, or they could call and provide a verbal response. Both of the complainant’s references completed the reference check questionnaire electronically. They were entered into evidence at the hearing; neither Mr. Cloutier nor Mr. Stroud was called as witnesses.

21The reference provided by Mr. Cloutier stated, in part: “(...) In terms of Supervisors, for the majority Jim is collaborative and works towards meeting organizational needs and service provisions. There has been 1 occurrence where he inappropriately challenged direction by a senior manager.”

22The parties provided further evidence at the hearing about this one occurrence, which concerned Mr. Retson issuing the complainant a written reprimand for insubordination in October 2007.

23The complainant explained that the incident occurred on a busy Friday afternoon. In certain locations the mail delivery service only runs once a day. Although it was past his normal end of day, the complainant had decided to complete the preparation of a mailbag involving passports and diplomatic pouches. He and his manager, Mr. Retson, kept similar hours and, given that their offices were in close proximity, they regularly crossed each other’s path in the workplace. Mr. Retson had ordered the complainant to complete this work on Monday morning and to leave the workplace. However, the complainant insisted on leaving only after he had completed his work. After a lengthy discussion, Mr. Retson decided to issue the complainant a written reprimand for insubordination. The complainant grieved the disciplinary measure and the grievance was denied by each of the levels in the grievance procedure.

24On cross-examination, the complainant agreed that his manager’s expectations were made clear to him during the incident in question, but he also insisted that he was not abrupt with Mr. Retson at the time.

25The complainant noted that there was no subsequent mention of this incident or related behaviour on any of his performance appraisals. In fact, the complainant stressed that he was given a CR-05 acting appointment from October 2008 until the end of January 2009; that is, after the above incident. Both Mr. Villon and Mr. Retson testified that the complainant was well suited for the CR-05 position given his extensive knowledge.

26Mr. Retson testified that he almost certainly would have spoken with both Mr. Cloutier and Mr. Villon about the incident that gave rise to discipline and the results of the complainant’s subsequent grievance since Mr. Cloutier replaced him during his absences and Mr. Villon had direct responsibility for the complainant.

27Mr. Villon testified that the complainant is a hard working individual who is dedicated to his work. Mr. Villon added that the complainant had a strange sense of humour and he would sometimes make inappropriate comments towards supervisors and managers. He views the complainant as someone who prefers to give orders, rather than take them. This has proven difficult for his peers who, on occasion, have complained that he was not their supervisor. Mr. Cloutier mentioned this in his response to question 1 on the reference check. His response was that the complainant’s relations with his peers had improved a lot in recent months. There had been times where his relations with them were strained, which had a negative impact on the workplace’s morale.

28The assessment board concluded that the complainant’s overall mark of 5/10 was insufficient to meet the established threshold of 7/10 needed to pass the essential qualification of team player. As a result, the complainant was eliminated from consideration for appointment. After all the assessments, the assessment board reviewed the results of those candidates who failed with Ms. Gagnon and Mr. Retson in order to ensure that they all agreed with the outcome.

29Mr. Retson remembers being consulted about the complainant’s failing grade. In situations where a candidate was close to passing, the assessment board discussed the situation with him in order to double and triple check the information and ensure that the criteria had been applied in a consistent manner. Mr. Villon and Mr. Cloutier came to his office and discussed the results of two individuals they had concluded failed to meet an essential qualification. Together, they read and reviewed the guide, looked at the indicators, went back to the information from the interview and reference checks and they reached a consensus about the points that should be awarded.

Arguments of the parties

A) Complainant’s arguments

30The complainant submits that the respondent failed to comply with PSC policies, specifically its Appointment Policy and Assessment Policy, and the ADAI. The ADAI requires, as a condition of delegation, that PSC values and appointment policies be respected.

31In accordance with section 16 of the PSEA, the respondent is subject to policies established by the PSC. In Denny v. Deputy Minister of National Defence, 2009 PSST 0029, at para. 134, the Tribunal found that the PSEA established a clear obligation for deputy heads and their delegates to comply with PSC policy.

32The PSC Appointment Policy, under its heading “Values”, requires that “policies and practices reflect the just treatment of persons.” The Assessment Policy provides that the assessment must be “designed and implemented without bias.” The processes and methods must effectively assess the essential qualifications and other merit criteria identified and be administered fairly. Moreover, deputy heads must ensure that those responsible for assessment “are not in a conflict of interest and are able to carry out their roles, responsibilities and duties in a fair and just manner.”

33The complainant also refers to the PSC’s Guide to Implementing the Assessment Policy, which reads, in part, as follows:

Since the integrity of an assessment process could be the subject of review, it is important not only that it be fair but that it also be seen to be fair. For example, assessment board members should make reasonable efforts to minimize any appearance of bias in the process and the assessment board members should not let personal favouritism influence the outcome of the appointment process.

(emphasis in original)

34The complainant submits that Mr. Cloutier was in a conflict of interest since he was both a member of the assessment board and a reference for the complainant.

35He also questions Mr. Retson’s involvement in the assessment of the candidates. As well, he believes that the grievance involving Mr. Retson should not have been considered by the assessment board.

36Finally, he submits that since the complainant had acted in a CR-05 position, it was an improper result for the assessment board not to have found him qualified for a CR-04 position.

37As corrective action, the complainant does not seek the revocation of the four appointments since there is no evidence that the persons appointed were not qualified. Rather, the complainant requests an order that his personal suitability qualification of “Team player” be reassessed.

B) Respondent’s arguments

38The respondent submits that the complainant is alleging abuse of authority because he cannot understand why he did not get a passing grade. However, the answer given by the complainant during the interview was weak and references indicated problems with the complainant’s skills as a team player.

39The respondent submits that the complainant has not offered any evidence to prove that the mention of his past grievance and Mr. Retson’s role in the appointment process amounts to bias. On the contrary, the complainant acknowledged that he acted as a CR-05 well after the grievance against Mr. Retson concluded. Moreover, while the complainant may have perceived Mr. Retson as being biased, he was not involved in the conduct of either the interviews or reference checks.

40With respect to Mr. Cloutier’s reference, it often happens that a member of the assessment board will also act as a reference for a candidate. There is no evidence to support the notion that accomplishing both roles constitutes an abuse of authority. Moreover, Mr. Cloutier was the complainant’s own choice as a reference.

41The assessment board determined that the complainant did not meet the “Team player” qualification. This was not an unreasonable conclusion in light of the factors relevant to being a “Team player”, given that working closely and collaborating with others on different facets of the mailroom operations is at the heart of the position being filled.

42In response to the complainant’s allegation of improper result, the respondent submits that the two positions have different requirements. In particular, the CR-05 position was very much “client focused,” which was one of the complainant’s strengths.

C) Public Service Commission’s arguments

43The PSC submits that pursuant to section 16 of the PSEA, PSC policies must be followed by deputy heads in the exercise of their delegated authority. However, deputy heads are not bound by the PSC guides developed to assist in the understanding of its policies.

44Reference checks are often used as an assessment tool to corroborate, clarify, or add to information that has been gathered by other methods such as the interview. The PSC believes that its policies have been followed in this case and that the complainant’s assessment had been designed and conducted fairly.

D) Respondent’s Reply Argument

45The complainant argues that the mark of 3- appearing in the margins of question 5 of both the interview notes of Mr. Villon and Mr. Cloutier need not have been there and that it was arbitrary in nature. Also, there was no indication on the job opportunity advertisement notice that personal knowledge would be part of the assessment process.

46The complainant argues that the interview and reference questions concerning “Team player” did not include indicators related to humour, nor were candidates informed that they would lose points for “having a wacky sense of humour” or “being abrupt.” Also, since Mr. Cloutier did not testify at the hearing, there is no way of knowing what he meant by “times where peer relationships have been stressed, causing increased negative moral[e] within the workplace.”

Analysis

Issue I: Did the assessment board members act in a way that could raise a reasonable apprehension of bias?

47The preamble to the PSEA sets out the appointment values that must guide the exercise of managerial discretion as it relates to staffing in the federal public service. It states that Canada benefits from a public service that is based on merit and non partisanship and that:

[...]

the Government of Canada is committed to a public service that embodies linguistic duality and that is characterized by fair, transparent employment practices, respect for employees, effective dialogue and recourse aimed at resolving appointment issues;

(emphasis added)

48Section 16 of the PSEA states that deputy heads are subject to any policies established by the PSC when exercising their delegated authorities – an obligation that is also reflected in the ADAI. PSC policy requires that appointments should reflect the just treatment of persons being assessed, that assessments be designed and conducted fairly and without bias, and that assessment board members be free of any conflict of interest.

49The complainant essentially is submitting that the respondent was biased in its assessment of him in two ways. Firstly, the assessment board was improperly influenced by Mr. Retson. Secondly, Mr. Cloutier, a member of the assessment board, was in a conflict of interest by acting as a reference for the complainant. In addition, personal knowledge was used to assess his qualifications although there was no indication in the Job Opportunity advertisement that it would be.

50Section 2(4) of the PSEA states for greater certainty that abuse of authority includes bad faith. Bad faith traditionally implies that there is an improper intent, a bias, or a lack of impartiality in exercising discretionary authority. Therefore, the allegation that the respondent was biased is one of bad faith in its assessment of him. See: Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 0007. See also: René Dussault and Louis Borgeat, Administrative Law: A Treatise, 2nd ed. (Toronto: Carswell, 1990) vol. 1, at 425 and vol. 4, at 343.

51The courts have acknowledged that direct evidence of actual bias is difficult to establish and have found that fairness requires that there be no reasonable apprehension of bias. A test for reasonable apprehension of bias has been established and is to be applied when reviewing a decision from a public authority that affects the rights and privileges of a person. This test is flexible as it takes into consideration that the duty to act fairly varies depending on the context of the decision. See: Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R.. 817, at paras. 45 to 47; and, David Philip Jones & Anne S. de Villars, Principles of Administrative Law, (Toronto: Thomson Carswell, 2009), at 396 and following.

52In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394, the reasonable apprehension of bias test is set out as follows:

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information....[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.

53The Tribunal has found in previous decisions that members of the assessment board have a duty to act fairly, which includes a bias-free assessment. The test for reasonable apprehension of bias applies in reviewing staffing decisions as it is flexible and takes into context the nature of a staffing decision. The test when reviewing staffing decisions can be expressed as follows: If a reasonably informed bystander looking at the process could reasonably perceive bias on the part of one or more of the assessment board members, then the Tribunal could conclude that there has been an abuse of authority. (See Jacobson v. Chairperson of the Immigration and Refugee Board, 2009 PSST 0019, at para. 68; Denny at paras. 124 to 126).

54A reasonably informed bystander looking at the whole process, and specifically at the role of Mr. Retson and Mr. Cloutier, could not reasonably perceive bias on the part of one or more of the assessment board members. There is no evidence that Mr. Retson improperly influenced the board’s assessment of the complainant. Mr. Retson’s unrefuted testimony was that he did not participate in either the interviews or the reference checks. By the time the assessment board members met with Mr. Retson and Ms. Gagnon to discuss the complainant’s candidacy, the assessment board had already assigned the complainant a mark of five out of 10 for “Team player”. Moreover, the evidence demonstrates that both Mr. Villon and Mr. Cloutier already knew of the disciplinary matter.

55Providing a reference requires having personal knowledge of the candidate. In this case, Mr. Cloutier was asked to be a reference by the complainant. The fact that he knew of the previous discipline, or any negative information about the complainant, does not mean that he cannot be an appropriate reference for the complainant or act as a member of the assessment board.

56There is no evidence of conflict of interest on the part of Mr. Cloutier. Acting as a reference for the complainant, while also being a member of the assessment board, did not place Mr. Cloutier in a conflict of interest. The complainant acknowledged that he himself asked Mr. Cloutier to be a reference, and told him that he should be as frank and honest as possible when providing his reference. In previous decisions, the Tribunal has found that, in itself, there is nothing wrong with an assessment board member also acting as a reference. (See, for example: Gilbert v. Commissioner of the Royal Canadian Mounted Police, 2007 PSST 0040).

57As demonstrated by the reference document completed by Mr. Cloutier, he possessed relevant knowledge about the complainant’s performance and he presented such information in a manner that allowed for a proper assessment of the complainant’s qualifications. The reference check contained positive responses with respect to the complainant’s level of knowledge, attendance record and so forth.

58The test for reasonable apprehension of bias takes into consideration the context of the decision. In the staffing of a position, it is important that supervisors who are qualified and informed persons in relation to their employees act as references for candidates. It is often these individuals who are best placed to offer relevant information about a candidate’s qualifications as they have personally observed the behaviour of candidates in the workplace.

59The PSEA provides broad discretion in finding the candidate who is the right fit for the organization and allows flexibility in staffing a position so that a supervisor can generally act as a reference while being a member of the assessment board. However, depending on the circumstances of a particular case, it could be inappropriate for a supervisor to act as reference where the supervisor’s actions raise a reasonable apprehension of bias.

60What the complainant objects to is the fact that part of Mr. Cloutier’s reference was negative. Mr. Cloutier was asked to comment on how the complainant gets along with supervisors. There is nothing improper in either Mr. Cloutier providing information about an incident involving a supervisor, or in the assessment board using this information in its evaluation. In Dionne v. Deputy Minister of National Defence, 2008 PSST 0011, at para. 50, the Tribunal explained the purpose of reference checks as follows:

50 Reference checks are a commonly used assessment tool, which provide information about a candidate’s past performance and accomplishments in order to assess their suitability for the position which is to be staffed... While candidates can offer as referees those supervisors or co-workers who they believe will provide positive information, the purpose of conducting a reference check is to obtain accurate and relevant information about a candidate, whether positive or negative.

(emphasis added)

61As for Mr. Villon, he too knew about the disciplinary matter; however, there is no evidence that his personal knowledge of the complainant had any bearing on his assessment.

62The Tribunal therefore considers that a reasonably informed bystander could not reasonably perceive bias on the part of the assessment board members. The Tribunal finds that the assessment board was not improperly influenced by Mr. Retson and that Mr. Cloutier, by acting as a reference for the complainant, was not in a conflict of interest as a member of the assessment board. The complainant has failed to prove that his assessment was unfair.

Issue II: Did the respondent abuse its authority when considering personal knowledge of the complainant and by his elimination from the process despite having acted previously in a position at a higher level?

63The complainant alleges that the assessment board members should not have used their personal knowledge to assess the complainant’s qualifications. However, section 36 of the PSEA provides that the Commission, and by extension the assessment board, “may use any assessment method (...) that it considers appropriate” when evaluating candidates. The use of personal knowledge of a candidate by the assessment board is a legitimate tool, even if not specifically listed in the SMC as a means of assessment. (See: Visca v. Deputy Minister of Justice, 2007 PSST 0024 and Kitchen v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 0028).

64The complainant also claims that there was an abuse of authority because his elimination from the appointment process constitutes an improper result. In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at para. 70, the Tribunal identified five categories of abuse that can be used as a framework to analyze a complaint of abuse of authority. One of these categories is where there has been an improper result, which reads as follows: “When there is an improper result (including unreasonable, discriminatory, or retroactive administrative actions).”

65According to the complainant, since he had been in a CR-05 position, the result should have been that he be found qualified for this CR-04 position. In essence, the complainant is claiming that it was unreasonable to eliminate him from a CR-04 appointment process since he had acted in the past in a CR-05 position.

66The evidence before the Tribunal is that Mr. Retson and Mr. Villon considered the complainant well-suited for the Client Services Representative CR-05 position given his extensive knowledge. However, there is no evidence before the Tribunal that the CR-05 position and the CR-04 positions required any or all of the same essential qualifications.

67Moreover, the complainant did not demonstrate to the assessment board within the chosen process that he met the requirement for “Team player”. The Tribunal has held in Charter v. Deputy Minister of National Defence, 2007 PSST 0048, at para 37, that a candidate must demonstrate that they possess the essential qualifications through the chosen assessment process. The fact that the complainant had been found qualified to act in a CR-05 position does not mean that he is qualified to be appointed in a CR-04 Team Leader position.

68Consequently, the Tribunal finds that the use of personal knowledge about the complainant and his elimination from the process did not constitute an improper result in the circumstances.

69The Tribunal concludes that the complainant has failed to establish, on a balance of probabilities, that the respondent abused its authority in its assessment of his candidacy.

Decision

70For all of these reasons, the complaint is dismissed.

Maurice Gohier

Member

Parties of Record

Tribunal File:

2009-0100

Style of Cause:

Curtis Robertson and the Deputy Minister of National Defence

Hearing:

March 1-2, 2010
Ottawa, ON

Date of Reasons:

August 10, 2010

Appearances:

For the complainant:

Louis Bisson

For the respondent:

Michel Girard

For the Public Service
Commission:

Trish Heffernan