FPSLREB Decisions

Reasons for Decision

Introduction

1 Claudio Pellicore, the complainant, alleges abuse of authority in the appointment process conducted by the Canada Border Services Agency (CBSA), to fill five positions of Enforcement Supervisor, at the FB-05 group and level. The complainant claims that the assessment board abused its authority in the manner in which his references were selected, that two of the references and the chairperson of the assessment board were biased against him, and that the assessment board abused its authority when it concluded that he did not possess the team player and values and ethics qualifications.

Summary of Relevant Evidence

The appointment process and the complainant’s application

2 The complainant is employed at the CBSA as an Inland Enforcement Officer, at the FB-03 group and level, with the Organized Crime Unit. He has 23 years of service with the federal public service, over the course of which he has developed extensive knowledge and experience in the field of immigration investigations.

3 In 2008, the CBSA conducted an internal advertised appointment process to staff approximately five Enforcement Supervisor positions, on an indeterminate or acting basis, at the FB-05 group and level, for the Greater Toronto Area Region. On July 21, 2008, the complainant applied.

4 On November 20, 2008, the assessment board advised the complainant that it had found he did not meet two of the essential personal suitability qualifications for the positions ("team player" and "values and ethics"). As a result, the board decided it would not be considering his candidacy any further in the appointment process.

5 Following an informal discussion with the complainant, it was agreed that the board would conduct further reference checks from amongst a list of additional contacts that the complainant provided. Two of these persons were contacted, but after reviewing the additional information obtained, the assessment board was satisfied that its original rating of the complainant was supported and represented an accurate assessment of the complainant’s qualifications.

6 On January 13, 2009, the complainant filed the present complaint with the Public Service Staffing Tribunal (the Tribunal) pursuant to s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12-13. (the PSEA), alleging abuse of authority in the application of merit.

The assessment board

7 The assessment board was chaired by Reg Williams, the Director of Inland Immigration Enforcement, Greater Toronto Area, CBSA. He developed the Statement of Merit Criteria (SMC) with the assistance of a staffing officer. For the assessment of the candidates, Mr. Williams was assisted by two other assessment board members – Susan Trentholm and Terry Swanek.

8 The SMC included the qualifications of "team player" and "values and ethics", which, according to Mr. Williams, were considered to be essential for anyone occupying the position of Enforcement Supervisor. He testified that the team player criterion was required due to the significant interaction and overlap between the different CBSA business lines, and it was therefore necessary that the incumbent possess the ability to work collaboratively in a team setting. The values and ethics qualification was included because it is considered to be a core competency of leadership.

9 The board decided that it would rely upon a structured reference check process to assess these personal suitability qualifications. According to Mr. Williams, the board had planned to examine the information obtained from the reference checks and seek additional information only if needed. He testified that he did not intend to use his own personal knowledge of the candidates in the assessment of these qualifications. The board developed a questionnaire to conduct and rate the reference checks. The same questions were asked for all candidates. The board did not use performance appraisals to evaluate candidates during this appointment process.

Assessment of the "team player" and "values and ethics" qualifications

10 The board asked CBSA Regional Program Advisor Elena Schlanger to conduct the reference checks. Mr. Williams provided her with the questionnaire forms the board had developed and gave her a list of the candidates’ references to contact. She testified that she contacted every person on the list and asked each of them the same questions following which she wrote down their responses. Her role was limited to recording the different responses and did not extend to assessing any of the information provided by the references.

11 Ms. Schlanger conducted a reference check with the complainant’s manager, Marija Cuvalo, on October 6, 2008. At that time, however, the complainant’s immediate supervisor was David O’Sullivan, who was acting in the position of Enforcement Supervisor and reported to Ms. Cuvalo.

12 The assessment board found Ms. Cuvalo’s responses during the initial reference check insufficiently detailed to assess the complainant’s qualifications. Ms. Schlanger’s notes also indicated that Ms. Cuvalo had responded "I don’t know" to several of the questions asked. As a result, on October 16, 2008, at the board’s request, Ms. Schlanger conducted a follow-up interview with Ms. Cuvalo in order to clarify her answers. On this second occasion, Ms. Cuvalo provided more fulsome responses to most of the questions.

13 The board did not seek a reference check from Mr. O’Sullivan because he was also a candidate in the same appointment process as the complainant. The board wished to avoid a potential conflict of interest or the appearance of bias.

14 Candidates required a passing grade of 3/5 on the following scale, in order to meet the personal suitability qualification: Excellent – 5, Very Good – 4, Good – 3, Poor – 2, Unsatisfactory – 1. After reviewing Ms. Schlanger’s material from the complainant’s reference check, each assessment board member gave a rating. The members then discussed their results with each other in order to reach a consensus about the marks to be awarded. Mr. Williams explained that in the complainant’s case, the assessment board awarded him a score of 2/5 for team player and 1/5 for values and ethics.

15 As already mentioned, on November 20, 2008, the assessment board advised the complainant of their decision not to consider him in the appointment process.

16 The complainant sought and obtained a meeting with the board members to informally discuss their decision. According to Mr. Williams, the complainant transformed the informal discussion into a lengthy and unstructured debate about all of the workplace’s ills. Mr. Williams recalled that they had a difficult time staying focussed on the complainant’s assessment. The complainant questioned why Mr. O’Sullivan had not been called as a reference. The board explained that it had not selected Mr. O’Sullivan because he was also a candidate in the same appointment process, which could potentially give rise to a conflict of interest. When the complainant presented several performance appraisals for the assessment board’s consideration, the board pointed out that it had decided, from the outset of the process, not to use performance appraisals as an assessment tool to determine if candidates were qualified.

17 The complainant asked the board to conduct some additional reference checks and revisit its decision not to consider his candidacy further. The complainant submitted the names of eight individuals who could be contacted as references. The board agreed to his request and indicated that it would consult one or more of the persons listed.

18 On December 2 and 3, 2008, at the board’s instruction, Ms. Schlanger contacted two of the persons on the complainant’s list of additional references: Anna Guida, a long-time manager at the CBSA’s Greater Toronto Enforcement Centre, and Lyne Mansfield, a CBSA Enforcement Supervisor who had previously supervised the complainant. Ms. Schlanger provided her notes from these interviews to the board, which assessed them along with the notes from her previous interviews with Ms. Cuvalo.

What the Three References Indicated?

The Team Player Qualification

19 The board had established a series of factors relating to the Team Player qualification, upon which the reference contacts were asked to comment. These included how constructively the candidate participated in meetings, the kinds of solutions to problems that they proposed, their supportiveness of team initiatives and their willingness to set aside personal priorities in favour of the team.

20 In their interviews, both Ms. Cuvalo and Ms. Guida noted that the complainant actively participated in meetings but his comments were not always constructive. Ms. Mansfield remarked that the complainant always gave his opinion on any issue, adding that he was known to "have a solution for everything". She nonetheless found his views constructive inasmuch as they elicited further discussion among the participants.

21 Ms. Cuvalo and Ms. Guida also observed that the complainant raised problems and proposed solutions only where they affected him, and not necessarily where they affected the operations of the unit. Ms. Cuvalo commented that the complainant would always present suggestions from his perspective only, without taking into account the employer’s considerations and the potential consequences of having to apply some of his suggestions universally to all staff. Furthermore, according to Ms. Guida, the complainant had "no inkling" of how his behaviour affected others. Ms. Mansfield concurred that the complainant often needed to be reminded that his actions had an impact on other employees.

22 Ms. Guida stated that the complainant was not always supportive of initiatives the organization had taken, while Ms. Cuvalo pointed out that he would openly share with others his disagreement with some measures. Ms. Cuvalo noted that while the complainant repeatedly advanced his own ideas, he did not recognize those of others.

23 The reference contacts were also asked about whether the complainant set aside personal priorities in favour of the team. Ms. Cuvalo remarked that the complainant focussed on his personal needs and interests.

24 The board also inquired as to how well candidates delivered on their promises and commitments. On this point, Ms. Cuvalo referred to an incident where she had to constantly follow up on the complainant to produce a report he had been asked to prepare. She recalled that he disagreed with the necessity for the report and kept questioning why he needed to produce it.

The Values and Ethics Qualification

25 With respect to the values and ethics qualification, the reference check looked into how well the candidates took responsibility for personal errors, whether they placed personal goals and opinions ahead of those of the organization, if they had mistreated or abused their authority, or whether they behaved in a manner that demotivated or offended others through criticism or aggression.

26 In this regard, Ms. Cuvalo referred to an instance where the complainant committed a serious error but did not demonstrate any remorse or accountability. Ms. Guida similarly noted that after an incident during which the complainant showed a lack of judgment, he kept blaming others including the operation’s management, rather than admit his error. On the other hand, Ms. Mansfield remarked in her interview that the complainant was always receptive to comments and feedback, and did not avoid taking responsibility for his actions.

27 All three reference contacts pointed out that the complainant tended to place his personal priorities and preferences ahead of those of the organization. Ms. Cuvalo and Ms. Guida referred particularly to his choices of where to stay when travelling on business. Ms. Mansfield generally had more positive comments, but she also noted that the complainant’s goals may not be consistent with those of the organization because he feels that he is looking out for fellow officers.

28 None of the references indicated that the candidate was ever abusive when dealing with clients, Ms. Mansfield even noting that he treated them with dignity and respect, maintaining high professional standards.

29 In contrast, however, Ms. Mansfield also remarked that the complainant could be cynical with other staff, especially when he did not agree with policies or procedures that were in place. Ms. Guida went even further in her comments, claiming that the complaint had acted aggressively with respect to a particular incident when she had refused a request that he had made upon return from a business trip. Ms. Guida stated that he reacted to the decision by suggesting that he would sue her personally over the issue and that she could lose her house as a result. Ms. Guida claimed that he had made a similar type of "threat" after another incident where he was told that he acted without judgment.

30 Mr. Williams testified that after reviewing Ms. Schlanger’s notes from her conversations with Ms. Guida and Ms. Mansfield, the board members agreed by consensus that this additional information supported their original conclusions. The assessment board was particularly struck by Ms. Guida’s comment that the complainant had warned her that she could lose her house if he sued her. The board was concerned with the deliberately intimidating or threatening tone of his remark.

31 According to Mr. Williams, the board members were satisfied that their findings represented an accurate assessment of the complainant’s qualifications. The board, therefore, did not modify the marks originally awarded to the complainant regarding the team player (2/5 or "poor") and values and ethics (1/5 or "unsatisfactory") qualifications. The assessment board recorded its conclusions in a document entitled Summary of references in which it noted that the complainant did not meet the personal suitability qualifications needed for the supervisory position for which he was being assessed. The board referred to the observations that he focussed on his personal goals and interests and that he was opinionated and not always supportive of the organization’s initiatives.

The Complainant’s Evidence Regarding the Reference Checks

32 The complainant disputes many of the comments made by his references because they involve incidents where he felt he was treated differently than others in similar circumstances. He also asserts that in speaking to Ms. Guida about his potential legal recourses against her, he was merely advising her of the possible consequences of her actions. He did not consider his statements to be threatening.

33 During his testimony, the complainant dealt extensively with details relating to the various incidents of serious error or lack of judgment that Ms. Cuvalo and Ms. Guida had particularly mentioned. He testified that some of these incidents had resulted in disciplinary measures being imposed on him against which he had filed grievances. The hearings into some of the grievances were still pending at the time of his assessment for the position in question. He claims that it was illegal and unethical for matters relating to disciplinary actions to have been discussed during a reference check, particularly when some of the issues were still unresolved pending a final decision from the grievance procedure.

34 In addition, the complainant contends that the assessment board failed to take into consideration many of his past accomplishments. For instance, he referred to a merit award he received in 1998 and two letters of recognition he received in 1997, as well as congratulatory emails he received in 2003. The complainant also referred to the medical assistance he had provided to a fellow officer while performing a deportation escort to Ghana in January 2007, as well as a 2009 CBSA GTA Region Newsletter, which gave an account of the complainant’s "dogged perseverance" in the successful removal of an individual, in June 2008, that had literally taken decades to come to fruition. A letter of recommendation from Ms. Guida, dated January 2004, was also produced at the hearing by the complainant congratulating him for having been "able to pull the unit members together and have them work as a team" during a past assignment as an Enforcement Supervisor. The complainant had not placed this information before the board with his application, but he claims that Mr. Williams would have been aware of these accomplishments.

Analysis

35 The complainant has presented a complaint under s. 77(1)(a) of the PSEA, which provides that an unsuccessful candidate in an internal appointment process may make a complaint that he or she was not appointed or proposed for appointment by reason of abuse of authority by the deputy head in the exercise of its authority.

36 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at para. 65, the Tribunal held that abuse of authority, within the meaning of the PSEA, must consist of more than mere errors or omissions. The complainant has the burden to prove, on a balance of probabilities, that there was abuse of authority in the appointment process (see Tibbs, at para. 49).

Issues

37 The Tribunal must determine the following issues:

1. Did the manner in which the complainant’s references were selected constitute an abuse of authority?
2. Was the assessment of the complainant tainted by bias?
3. Did the assessment board abuse its authority when it concluded, based on the references, that the complainant did not possess the team player and the values and ethics qualifications?

Issue I: Did the manner in which the complainant’s references were selected constitute an abuse of authority?

38 The complainant raises a number of concerns about the selection of the individuals who acted as references. He argues, for instance, that Ms. Cuvalo should not have been used as a reference since she responded to too many questions with "I don’t know", and that his supervisor at the time, Mr. O’Sullivan, should have been approached as a reference.

39 Ms. Cuvalo’s responses during her first interview were indeed lacking detail in several areas. It would likely have been an error for the board to proceed with its evaluation of the complainant’s qualifications on the basis of incomplete information. However, this deficiency was detected by the assessment board, which instructed Ms. Schlanger to contact Ms. Cuvalo a second time in order to have her provide expanded responses to some of the questions. By taking such action and obtaining additional information on which to base its evaluation of the complainant’s qualifications, the Tribunal finds that the board corrected the problem of insufficiency of information that originally existed. The board did not abuse its authority by proceeding in this way.

40 The complainant also argued that Ms. Cuvalo’s second interview, ten days later, provided her with ample time and opportunity to practice and rehearse her revised answers since she already knew what questions would be asked of her. In essence, the complainant suggests that the ten day period that elapsed between her first and second interviews would have resulted in different answers being provided by Ms. Cuvalo. Having more time to prepare her answers might have resulted in Ms. Cuvalo providing more detailed and complete responses to the questions she was asked. However, there is no evidence that this would have had the effect of diminishing the reliability of the substance of her responses. Aside from his blanket assertion, the complainant could point to no evidence that the clarifications provided by Ms. Cuvalo were manufactured or unreliable in any way. As such, the Tribunal finds that there is no merit to the complainant’s concerns in this regard.

41 As to the choice of the other two individuals who were approached as references, Ms. Guida and Ms. Mansfield, the complainant had submitted their names to the board as additional references during the informal discussion. If the complainant had reservations about any of these persons acting as a reference for him, then he either should not have included them in the list he provided during his informal discussion with the respondent or he should have raised his concerns about them at that time.

42 With respect to the board’s decision not to seek a reference from the complainant’s immediate supervisor, Mr. O’Sullivan, the Tribunal notes that he would inevitably have been placed in a conflict of interest if he had acted as a reference for the complainant while also participating in the same appointment process. The Tribunal finds that the board’s decision to avoid that potential conflict of interest by seeking reference information from other sources was reasonable in the circumstances.

43 For all of these reasons, the Tribunal is satisfied that the assessment board did not abuse its authority in the manner in which the complainant’s references were selected.

Issue II:  Was the assessment of the complainant tainted by bias?

44 The complainant alleges that two of the references, Ms. Guida and Ms. Cuvalo, and the chairperson of the assessment board, Mr. Williams, demonstrated a bias against him, which he claims constitutes an abuse of authority within the meaning of s. 77(1)(a) of the PSEA.

45 A specific test has been developed in cases where bias has been alleged. The 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. Suspicions, speculations or possibilities of bias are not enough and the bias must be real, probable or reasonably obvious (see Denny v. Deputy Minister of National Defence, 2009 PSST 0029 at paras. 123-124). In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at para. 394, the Supreme Court set out the test for reasonable apprehension of bias 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. 

46 Accordingly, members of boards assessing candidates in appointment processes have a duty to conduct their assessments fairly and in a manner that does not give rise to a reasonable apprehension of bias. 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 duty to act fairly has not been met. (See Denny at paras. 124‑126; Jacobson v. Chairperson of the Immigration and Refugee Board, 2009 PSST 0019 at para. 68). Where a reasonable apprehension of bias has been demonstrated, the Tribunal may conclude that the conduct constitutes bad faith within the meaning of s. 2(4) of the PSEA and, therefore, an abuse of authority under the Act.

47 In the present case, the complainant is alleging a reasonable apprehension of bias not only on the part of the chairperson of the assessment board, but also with respect to the two references that were most unfavourable to him - Ms. Cuvalo and Ms. Guida. The complainant is dissatisfied with the information given by these two persons during this process and is now alleging that they were biased. For instance, he contends that he was treated unfairly as compared to others in similar situations with respect to the incidents of errors and poor judgment mentioned by Ms. Cuvalo and Ms. Guida, and he suggests that the Tribunal should therefore infer that he was also treated unfairly by the assessment board in its evaluation of his qualifications.

48 As was originally explained to the parties at the outset of the hearing, the Tribunal allowed the complainant to testify regarding these other incidents, not with the intent of reviewing or assessing the appropriateness of management’s actions in each instance, but rather to establish the context surrounding the complainant’s assessment.

49 However, in any event, a reference’s alleged bias does not necessarily demonstrate that the assessment board abused its authority. The purpose of a reference check is to convey information that is used by the board in its assessment of a candidate’s qualifications. References do not exercise any decision-making authority in the affairs of an assessment board and are therefore not expected to act without any bias, as is required of decision-makers. In fact, when candidates select someone to act as a reference on his or her behalf, they typically seek to identify persons whom they believe hold a favourable opinion of their abilities; in other words, persons who may be biased in their favour. The role of references, however, is to give candid assessments, and these ultimately may or may not be favourable to the candidate, as demonstrated in the present case.

50 This is not to say that an assessment board should ignore any evidence that may call into question the reliability of the information provided by a reference. However, the fact that a candidate merely disagrees with the references’ accounts of incidents involving him (as the complainant does in the present instance) does not necessarily establish that the reference is not reliable. In the complainant’s case, the Tribunal finds that there is no evidence demonstrating that the information given by the complainant’s references was not reliable. The board had no reason to discount the validity of their comments and opinions.

51 For the above reasons, the complainant has not substantiated his claim of abuse of authority by the assessment board based on his references’ alleged bias.

52 With respect to Mr. Williams, the complainant argues that his alleged failure to call upon his personal knowledge of the complainant’s achievements demonstrates a reasonable apprehension of bias on his part.

53 The assessment board had prepared and used a structured reference check process to gather information about the candidates. In an effort to ensure a consistent approach, each of the references contacted was asked the same questions. The assessment board then determined whether the information provided demonstrated that the candidate possessed the essential qualifications being assessed through the reference checks.

54 In his evidence, Mr. Williams acknowledged being aware of most of the complainant’s past accomplishments. He preferred, however, not to add his personal views into the board’s reference check process, which was designed to obtain information from those who worked closest with the complainant. In contrast to the references who were interviewed, there were several levels of supervision between the complainant and Mr. Williams.

55 Furthermore, many of the accomplishments to which the complainant refers were not recent, having taken place when he was working with other departments, prior to their amalgamation with the organization that eventually became CBSA. In such circumstances, the Tribunal finds that Mr. Williams’ decision to rely on the information provided by those who worked most closely and recently with the complainant was reasonable, and that the complainant has not established that Mr. Williams’ decision gives rise to a reasonable apprehension of bias.

56 The complainant alleges that Mr. Williams also demonstrated bias by failing to rely on his personal knowledge of the complainant’s exceptional interpersonal skills. However, the complainant did not establish that Mr. Williams actually held such a view, particularly in light of the evidence demonstrating that the complainant, in fact, did not consistently display these skills - especially in the areas of team player and values and ethics.  For instance, the references were critical of his demeanour during meetings and of his interactions with management over a number of issues. They noted that he has difficulty accepting a point of view that does not coincide with his own, and that he does not show awareness of the impact of his own behaviour on others.

57 Consequently, the Tribunal concludes that a reasonably informed bystander looking at the whole process and, specifically, at the role of Mr. Williams, would find that the evidence supported the assessment board’s conclusions regarding the reference material before it. The person would not reasonably apprehend bias on the part of Mr. Williams, as chairperson of the assessment board.

Issue III:  Did the assessment board abuse its authority when it concluded, based on the references, that the complainant did not possess the team player and the values and ethics qualifications?

58 The complainant argues that it was an abuse of authority for the assessment board to conclude that he does not possess the team player and the values and ethics qualifications.

59 As the Tribunal noted in Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST0020, at para. 50, it is not the Tribunal’s role to redo the candidate’s assessment; rather, its role is to examine the process used by the assessment board and determine if it was tainted by an abuse of authority.

60 The complainant argues that references should not have been a deciding factor in his assessment, but instead should have been used as a "tool to assist" the assessment board in its evaluation. In support of this proposition, the complainant referred to Hammond v. Deputy Head of Service Canada, 2008 PSST 0008. In the facts of that case, the assessment of personal suitability qualifications was based on two separate sources of information: the candidates’ responses during the interview, as well as comments received through reference checks. The fact that the assessment board in Hammond chose to use two different sources of information in order to assess personal suitability qualifications does not mean that all assessment boards must adopt the same approach.

61 In the case at hand, the board decided that the sole means of assessing the personal suitability qualifications would be the information acquired through reference checks. Pursuant to s. 36 of the PSEA, managers have broad discretion to select and use assessment methods to determine whether a candidate meets the established qualifications for a position (see Visca v. Deputy Minister of Justice, 2007 PSST 0024 at para. 51). Choosing to assess the team player and the values and ethics qualifications by means of a single source of information (reference checks) was a decision that fell entirely within the assessment board’s discretion. The Tribunal finds that the assessment board did not abuse its authority in deciding to proceed as it did.

62 The complainant argues that it was an abuse of authority for the assessment board not to further examine and reconcile the differences that existed between the verbal responses provided by the references and his written performance appraisals. The assessment board had decided, however, not to use performance appraisals in its assessment of candidates. Since the performance appraisals were not considered by the assessment board in their evaluation of any of the candidates, there was no discrepancy before them to resolve.

63 The complainant also contends that it was illegal and unethical for the assessment board to consider the information provided by the references related to a disciplinary action that is being grieved and remains ‘unresolved’. The complainant did not, however, provide any legal authority in support of this proposition.

64 Finally, with respect to his conversation with Ms. Guida about the potential for her losing her house if he sued her, the complainant contends that this was not a threat. He was just providing her with some advice as to the potential consequences of her actions. He claims that the board abused its authority in concluding that his behaviour was a deliberate attempt to intimidate or threaten Ms. Guida. The Tribunal finds, however, that the board’s interpretation was entirely reasonable given the account provided by Ms. Guida.

65 Based on all of the above, the Tribunal finds that the complainant has not established that the respondent abused its authority when it concluded that he did not possess the "team player" or "values and ethics" qualifications.

Decision

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

Maurice Gohier

Member

Parties of Record

Tribunal File:

2009-0016

Style of Cause:

Claudio Pellicore and the President of the Canada Border Services Agency

Hearing:

March 30-31, 2010
Toronto, Ontario

Date of Reasons:

December 16, 2010

APPEARANCES:

For the complainant:

Claudio Pellicore

For the respondent:

Karen Clifford

For the Public
Service Commission:

John Unrau (by written submissions)