FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Sohail A. Umar-Khitab, applied as a candidate in an advertised internal appointment process for the position of IM/IT Programmer/Analyst Team Leader and IM/IT Technical support Team Leader with Human Resources and Skills Development Canada (HRSDC). He was not appointed and subsequently filed a complaint of abuse of authority. He alleges that the respondent, the Deputy Minister of Human Resources and Skills Development Canada, abused its authority pursuant to subsection 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA), in that the manager who conducted the evaluation of the complainant was motivated by bad faith and a long standing bias against him.

2 The respondent denies that there was an abuse of authority in the process or that the manager, Robert Storms, exhibited bad faith or a long standing bias against the complainant. The complainant was unsuccessful based on his failure to meet the essential qualifications for the position.

3 While the complainant originally presented ten allegations, nine were withdrawn and this is the sole allegation that remains.

Background

4 The respondent posted a Job Opportunity Advertisement on Publiservice for the position of IM/IT Programmer/Analyst Team Leader and IM/IT Technical Support Team Leader (Technical) (CS-03) for positions across Canada (appointment process 2007-CSD-IA0-NHQ-18006). The complainant applied to the process and was screened in.

5 The assessment of each candidate was a staged process based on the evaluation of the assessment tool, a document completed on-line with a due date of December 18, 2007, in which the qualifications were each addressed by questions to which the candidate responded. To support completion of the assessment tool, candidates were provided with electronic access to the CS-03 Collective Staffing Process Candidate’s Guide (the candidate guide) and the Statement of Merit Criteria. The candidate guide advised that after completion, the assessment tool would be sent to their manager for verification and comments.

6 The completed assessment tool was then evaluated by the candidate’s manager (the evaluating manager). Managers were trained to conduct the evaluation and were provided with the CS-03 Collective Staffing Process Manager’s Guide (the manager’s guide) to lead them through the evaluation process. If a manager found a candidate to fail knowledge, a further review of the knowledge portion was conducted by the Review Committee. The Review Committee was responsible for the final assessment of each candidate. Two members of the Review Committee individually verified the result before the knowledge result was forwarded to the subsequent step. This additional step was conducted for the knowledge qualifications only.

7 Next, the entire result of the evaluation of all of the merit criteria was reviewed by a Directorate Assessment Committee (the DAC). DACs were established throughout the department to represent different portfolios and directorates. The evaluating manager presented the evaluation to the DAC to support the evaluation that had been given and to respond to questions or challenges to the evaluation. The evaluation was then presented to the full Review Committee which, after considering the results of the evaluation, rendered an assessment based on the information before it to determine whether a candidate was qualified.

8 The structure of the appointment process also provided for a Conflict Resolution Panel (the Panel) which was established specifically to address situations of bias or conflict that might arise among managers and candidates involved in the appointment process.

9 The complainant’s assessment tool was evaluated by his manager, Mr. Storms. It was then reviewed by the DAC and the Review Committee. At the conclusion of the Review Committee’s assessment, the complainant was found not to have met the essential qualifications for the position.

Issues

10 The Tribunal must determine the following issue:

1. Did the respondent abuse its authority in the application of merit by reason of bias?

Summary of Relevant Evidence

11 This internal advertised appointment process was initiated in February 2007 and attracted 684 applications for approximately 100 positions. Robert Sharlow, Director, General Automated Enterprise Solutions, led the appointment process from the outset and was present as a witness during the hearing to describe the structure and procedures followed in the appointment process. He explained that, after screening, the remaining 568 candidates were invited to complete the assessment tool.

12 The complainant completed and returned the assessment tool. In his evidence, he acknowledged that he did not refer to the candidate guide. After submitting the assessment tool, he was contacted to provide the name of his CS-04 manager. This information was required to comply with the requirements of the process as stated in the candidate guide:

HR will ... send it (the assessment tool) off to your Manager (substantive or acting CS-04) for verification and comments. Your Manager will review/verify what you have written and will evaluate you for each essential qualification, either alone or with the help of a Team/Project Leader (CS-03) ...

13 The complainant provided the name of Mr. Storms. In his evidence, Mr. Storms estimated that he and the complainant had known one another for six years and had regular contact on a number of subjects. Mr. Storms had served as a reference for the complainant in other processes and, in the present process, in addition to his role as the evaluating manager, he was named by the complainant as a validator. Mr. Storms confirmed that he attended the training for managers. He conducted the evaluation of six employees in total. Among them, two were found qualified.

14 During the evaluation period, the complainant was regularly absent from the office due to a commitment elsewhere. Email was exchanged with him through his hotmail account to obtain the names of individuals who could validate the examples he had provided. To complete the evaluation, Mr. Storms then contacted the validators to obtain relevant information to support the examples given in the assessment tool. The complainant also supplied a résumé. However, Mr. Storms did not find the complainant’s résumé helpful in matching the validators to the dates of the complainant’s experiences. Throughout this time, the complainant expressed no concern about the participation of Mr. Storms because he felt satisfied with the information he had submitted in the assessment tool.

15 Among the validators contacted by Mr. Storms was Richard Thomas. Mr. Thomas was an individual who had worked with the complainant. When he replied to Mr. Storms on March 3, 2008, he specifically addressed one part of his response directly to Mr. Storms. Mr. Thomas wrote:

Mr. Storms: I have a concern about prejudice (perceived or real) in this process that I am assuming you are chairing, or are involved with. My concern stems from that attitude you displayed towards Mr. Umar-Khitab just before he began his assignment as a team leader. You stated in front of 5 of your subordinate Team Leaders that you had to give him the chance, even though you did not want to, and that he was going to be incompetent. Also at that table at that time was a peer of Mr. Umar-Khitab. This attitude was being expressed before Mr. Umar-Khitab had had a chance to do the job, that he had shown through an abbreviated process that he had the departmental skills to do. This prejudicial attitude tainted his chances of success at that time, and consideration needs to be made to ensure the same attitude is not present during this current competitive process.

I would like to know how this will be dealt with to ensure Mr. Umar-Khitab is given a fair shake and the integrity (perceived and/or real) of the process for this individual is upheld.

16 Mr. Thomas did not appear as a witness during the hearing to address the content of his note. Records indicate that after receiving the message, Mr. Storms forwarded the note to a labour relations manager and to his director. No further action was indicated to him. Mr. Storms continued his evaluation of the assessment tool prepared by the complainant.

17 The complainant stated that when he later became aware of Mr. Thomas’ note he reconsidered the suitability of Mr. Storms performing the evaluation. He then endeavoured to contact people who would have been present at the meeting to which Mr. Thomas referred. The relevant part of his email to them stated:

It has come to my attention that you were presentat a CS03 Team Leader meeting before my last CS03 Team Leader assignment in which Bob Storms made some negative comments about my abilities. Specifically, he indicated that would I (sic) be incompetent as a Team Leader and did not want to give me the opportunity in that position. He further indicated that he was being forced to provide me with this opportunity.

I would like to know who else was present at that meeting, and your impression of his comments. I also want to know what else was said at that meeting regarding this issue.

18 The complainant received two responses. The first, from Paul Palozzi, IM/IT Technical Support Team Leader, stated, “Unfortunately I am probably of no assistance. Bob has never made any negative comments about you or any one for that matter at any meeting I have attended.” The second response was received from JayR Perehinchuk, Toronto West and York IT Team Leader, who wrote, “I don’t recall the meeting you are referring to.” The complainant did not call as a witness either of these individuals or anyone else who had purportedly attended the meeting.

19 Mr. Storms denied the occurrence of the incident to which Mr. Thomas referred. He stated that never happened and the account was untrue. He viewed the action to be reflective of a difficult workplace situation he had encountered with Mr. Thomas.

20 The complainant referred the question of Mr. Storms conducting his evaluation to the Panel. He initiated this process in August 2008 and described his reason thus: “I have a conflict with the manager that did my evaluation. I have it on good authority that he has made prejudicial remarks about me to his subordinates.”

21 On November 28, 2008 the complainant made a submission to the Panel. On December 19, 2008, the Panel concluded that “your situation does not constitute perceived bias or perceived conflict between yourself and your manager.”

22During the hearing of this complaint, the complainant asserted that the comments of Mr. Thomas cast a new light on certain events in his working history, and he relied on these to support his contention of bad faith and bias on the part of Mr. Storms. He produced a number of examples. Chief among these were his assertion of limited opportunities to act at higher levels, the elimination of developmental opportunities by the deployment of staff, and the refusal of the employer to sponsor his French language training.

23 The complainant produced a table reflecting temporary work assignments given to 17 of his peers. It showed that he had received one assignment of three months duration in Belleville during the fiscal year 2006-2007. It also indicated that he had declined assignments during 2007-2008. By way of contrast, other employees had received one to three assignments during 2006-2007 and more assignments during 2007-2008. The complainant produced an email dated June 27, 2007, addressed to a third party, in which he stated: “ I made it clear to Bob (Storms) that after the very first offer that I was only interested in long term assignments as that is what I needed to get through the screening criteria. Others have been offered four month assignments.” The complainant’s tabulation of assignments indicated that over the two-year period it covered, individuals had accumulated from one to five assignments for total accumulated periods of two to 13 months.

24 Mr. Storms testified that there were many rotations to the team leader position and any interested employee was provided with the opportunity. The complainant refused assignments both before and after his acting assignment on the basis that they were of short duration.

25 The complainant also considers that, when he acted as the CS-03 in Belleville during 2006-2007, he found it difficult to get information about the team he was taking over. The complainant acknowledged, however, that he did not know whether this was due to Mr. Storms.

26 Mr. Storms explained that with every new assignment, there was a transfer of responsibility from the old team leader to the new one. He was unaware of any case in which information was withheld from the incoming team leader. During the complainant’s assignment, he had regular individual meetings with him in addition to biweekly team leader meetings. Mr. Storms understood that the complainant had expressed to senior employees that the assignment was working out well.

27 In the matter of the deployment of other employees, the complainant highlighted in his testimony the situation of a CS-02 employee who was deployed from Scarborough to Belleville. He considered that, although he was a CS-01, he was the best qualified for the appointment. He was denied the opportunity when it was decided to staff the position through a deployment. He considered the decision to deploy the CS-02 to be arbitrary.

28 Mr. Storms addressed this assertion at the hearing. He stated that, at the time this opportunity arose, the department had “ample” CS-02 employees to perform the available work. The deployment was part of a human resources plan. It was not an opportunity to increase the number of CS-02 positions and it was not a developmental assignment. Mr. Storms added that departmental representatives had met earlier with the complainant on the subject of his classification and had told him that, as a CS-01, he was not eligible for this deployment opportunity. On another occasion, the complainant asked for and was offered a deployment to Ottawa. When he then requested three months on travel status, the department declined and the deployment proceeded no further.

29 The complainant also asserted that he was deprived of a CS-02 assignment for a refit project in Pembroke even though he was willing to do it as a CS-01 to demonstrate his ability. In his view, the denial was arbitrary. He states that he expressed his concern to Mr. Storms about obtaining developmental assignments many times. He considered that the explanations lacked transparency.

30Mr. Storms responded that the Pembroke project was coordinated through team leaders. He was not involved.

31In the matter of French language training, the complainant recalled that he had to take leave to pursue self-funded training when departmentally funded leave was denied. He was told that French language proficiency was not part of his job.

32Mr. Storms also responded to this assertion. He stated that the training was considered developmental and not essential. The complainant selected and enrolled himself in language training that was offered in his community. It was scheduled during working hours. The complainant reorganized his schedule in order to attend. Mr. Storms offered him reimbursement of the tuition upon successful completion. According to Mr. Storms, the complainant declined, citing the income tax deduction that was otherwise available to him.

Arguments of the parties

A) Complainant’s arguments

33Prior to proceeding with his arguments, and as noted above, the complainant withdrew nine of the ten allegations presented in his original complaint. He narrowed his allegation to bad faith and bias on the part of Mr. Storms. In support, he relied on the note written by Mr. Thomas which was critical of Mr. Storms and his attitude toward the complainant. The complainant argues that the note implied a motive behind his lack of success in this appointment process and its existence supported his allegation of reasonable apprehension of bias. According to the complainant, if his evaluation were repeated by a different manager, his apprehension of bias would be reduced.

34The complainant referred the Tribunal to its decision in Denny v. Deputy Minister of National Defence et al., [2009] PSST 0029, at paragraphs 121 through 126 and 133 through 136, where the Tribunal held that for bias to be found, it is not necessary to find direct evidence and a reasonable apprehension of bias is sufficient. The complainant relied on his view of the repeated examples of Mr. Storms’ attempts to thwart his career development and advancement as evidence in support of his allegation.

B) Respondent’s arguments

35The respondent denies that it abused its authority in this process. It noted that Mr. Storms sent Mr. Thomas’ email to Human Resources and to his director. The respondent noted that Mr. Thomas had not claimed to have been present during the incident he described, nor did he appear at the hearing of this complaint to speak to the content of his email. His assertions were undermined by the responses obtained by the complainant from two team leaders and by the denial of Mr. Storms. Mr. Storms, aware of his difficult relationship with Mr. Thomas, shared the message with human resources and with his own manager and was transparent in that respect.

36The respondent relied on its highly structured appointment process and noted that the question of bias had also been reviewed and held to be unfounded by the Panel.

Relevant Legisation and policies

37Abuse of authority is not defined in the PSEA; however, subsection 2(4) provides the following: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

38These complaints were filed under paragraph 77(1)(a) of the PSEA, which refers to the criteria for making an appointment on the basis of merit at subsection 30(2) of the PSEA. These provisions are as follows:

77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

1. an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

[...]

30. [...]

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

1. 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
2. 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.

Analysis

39It is settled law that the complainant bears the burden of establishing, on the balance of probabilities, his complaint of abuse of authority. This was confirmed in the Tribunal’s decision in Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, where the Tribunal held at paragraph 50 that “(t)he general rule in civil matters should be followed and the onus rests with the complainant in proceedings before the Tribunal to prove the allegation of abuse of authority.”

40The complainant alleges that the evaluation of his candidacy which was completed by Mr. Storms constitutes an abuse of authority. Although “abuse of authority” is not defined in the PSEA, subsection 2(4) provides that “a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.” The notion of “bad faith” has been considered by the Supreme Court of Canada in Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, [2004] S.C.J. No. 31 (QL) at paragraph 39 where the Court held:

... the concept of bad faith can and must be given a broader meaning that encompasses serious carelessness or recklessness. Bad faith certainly includes intentional fault, a classic example of which is found in the conduct of the Attorney General of Quebec that was examined in Roncarelli v. Duplessis, [1959] S.C.R. 121. Such conduct is an abuse of power for which the State, or sometimes a public servant, may be held liable. However, recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed. The act, in terms of how it is performed, is then inexplicable and incomprehensible, to the point that it can be regarded as an actual abuse of power, having regard to the purposes for which it is meant to be exercised (Dussault and Borgeat, supra, vol. 4, at p. 343). [...]

41Although the complainant raised both bias and bad faith in his allegation of abuse of authority, the complainant’s evidence and the thrust of his argument were that Mr. Storms was biased and that this bias constituted bad faith. There was no evidence of actual bias on the part of Mr. Storms. The Tribunal must, therefore, determine whether the evidence is sufficient to support an allegation of reasonable apprehension of bias.

42In Denny, at paragraph 125, the Tribunal referred to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 (QL), which sets out the test for reasonable apprehension of bias at p. 394 (S.C.R.):

[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.

43The Tribunal in Denny also referred to the more recent articulation of the test set out in Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities, [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL), at para. 22 (QL), and applied it to the circumstances of that complaint. The test is the following: Would a reasonably informed bystander looking at the process reasonably perceive bias on the part of one or more of the persons involved in the assessment of the complainant? The same test can be applied here.

44The support for the complainant’s case comes from the email of Mr. Thomas describing events in a meeting held with Mr. Storms and others as well as a number of individual incidents. A reasonably informed bystander would consider Mr. Thomas’ email and the responses received from two individuals who were said to be present and who denied the occurrence when later presented with it. Additionally, it would be noted that Mr. Thomas did not appear to present his evidence. As such, the opportunity to test its reliability through cross-examination was not available. However, the Tribunal did receive the direct evidence of Mr. Storms who denied that the incident occurred.

45The reasonably informed bystander would also consider the number of individual incidents relied on to support the complainant’s claim of bias. The respondent replied to all of these matters through the explanations given by Mr. Storms. His evidence was not challenged or contradicted. It showed that the complainant himself played a significant role in a number of the matters he raised, for example, the number of assignments he accepted and whether his French language training was reimbursed. In the matter of the accumulated acting assignments of the complainant and his peers, the evidence shows that the complainant himself refused assignments as they did not equal or exceed his requirement of four months. The evidence does not show bias or unfairness in the assignments offered to the complainant.

46As the Tribunal held in Denny, at paragraph 124, suspicions or speculation are not enough and “bias must be real, probable, or reasonably obvious.” While the complainant may subjectively sense bad faith or bias in his dealings with Mr. Storms, his feelings alone do not establish that there was bias in this appointment process. An objective assessment of the evidence reveals coherent explanations for the events he placed in issue. The evidence is insufficient to satisfy the Tribunal that Mr. Storms was influenced by bias or bad faith in his evaluation of the complainant in this appointment process. Therefore, the Tribunal finds that the complainant has not proven his allegation of reasonable apprehension of bias within the meaning of the test set out in Committee for Justice and Liberty and Newfoundland Telephone Company.

47Accordingly, the Tribunal concludes that on the balance of probabilities and in consideration of the body of evidence presented during this hearing, there is insufficient evidence to support a finding that the respondent abused its authority in the application of merit by reason of bias.

Decision

48For all of these reasons, the complaint is dismissed.

Joanne B. Archibald

Member

Parties of Record

Tribunal File:

2008-0807

Style of Cause:

Sohail A. Umar-Khitab and the Deputy Minister of Human Resources and Skills Development Canada et al.

Hearing:

March 16 and 17, 2010
Kingston, Ontario

Date of Reasons:

June 22, 2010

Appearances:

For the complainant:

Dan Rafferty

For the respondent:

Stephan Bertrand