FPSLREB Decisions

Reasons for Decision

Introduction

1The complainant, Serge Bédard, is a materials handling equipment operator (GL‑PRW-07) at the 202 Workshop Depot, Department of National Defence, Montréal (202 WD). He took part in an advertised internal appointment process for the position of materials handling operations coordinator (GL-PRW-7B3) at 202 WD.

2During the assessment, the complainant showed that he met all the essential qualifications except the “service orientation” personal suitability qualification. On November 27, 2008, he filed a complaint with the Public Service Staffing Tribunal, alleging that the respondent had abused its authority by

1. failing to take his experience into account;
2. failing to assess him impartially by reason of his role as union steward; and
3. contravening the Public Service Commission (PSC) Appointment Policy and the Department’s Appointment Delegation and Accountability Instrument, thereby violating the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA).

3The respondent, the Deputy Minister of National Defence, submits that there was no abuse of authority.

Issues

4The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in finding that the complainant did not meet the “service orientation” essential qualification?
2. Did the respondent abuse its authority and show bias against the complainant because of his union activities?
3. Did the respondent violate the Assessment Policy and thereby abused its authority?

Summary of relevant evidence

5The complainant says that he has been a materials handling equipment operator (GL‑PRW-7) at 202 WD since 1981. His position requires him to operate a forklift and move equipment, vehicles and material. His section meets the handling needs of all sections of 202 WD, which overhauls and repairs various Canadian Forces vehicles.

6Starting in 2006, the complainant occupied the duties of the disputed position (GL‑PRW‑7B3) on an acting basis, and on rotation with colleagues, for several four‑month periods totalling “a year or two.” Since 2006, he also occupied the duties of team leader, materials handling operations (GL-PRW-7C3) on an acting basis for periods totalling roughly one year.

7The PRW sub-group of the Treasury Board’s General Labour and Trades (GL) Classification Standard (the GL Group Standard) is the “Precision Working” sub-group. The B3 and C3 suffixes are level coordinates that refer to the nature of the supervisory responsibility and the number of supervised employees, as defined in the Monitoring Plan for the GL Group Standard.

8The complainant explained that handling involves work with all wheeled equipment (e.g. forklifts) and all lifting equipment. The materials handling operations coordinator reports to the team leader and is generally responsible for coordinating physical and human resources.

9The complainant asserts that the quality of his work was acknowledged and that this is demonstrated by a letter of appreciation from Major J.G.M. Allaire which he tendered in evidence. In the letter, Major Allaire notes the quality of the complainant’s work as team leader with the materials handling section of the Logistics Process for a few months in 2007 and 2008.

10Alain Demontigny has been the Leader, Systems Integration Process, since 1998. He is one of 202 WD’s five process leaders. He confirmed that he has taken various staffing-related courses, including the three-day PSC training course. He chaired the assessment board (the board) for this appointment process, which was part of a series of processes intended to fill several coordinator (GL‑PRW‑7B3) and team leader (GL-PRW-7C3) positions in different fields.

11Mr. Demontigny explained that 202 WD has internal clients (its workshops and team leaders) and external clients (the land equipment program managers and the project managers in Ottawa). Client service is important at 202 WD, and various systems have been implemented in order to ensure that deadlines, such as delivery dates, are met. The importance of the client service issue accounts for its inclusion in all the assessment tools used for the coordinator and team leader positions.

The assessment of qualifications

12The PSC’s appointment power is delegated to the Deputy Minister of National Defence under the terms of the Appointment Delegation Accountability Instrument (ADAI), which was adduced in evidence.

13Pursuant to this delegation, Mr. Demontigny chaired the board, which had three other members: Michel Planté, a retired Service Canada employee hired on a casual basis for several appointment processes; another 202 WD manager; and a consultant. The board made all decisions regarding the choice and use of assessment tools.

14Mr. Demontigny testified that, with Mr. Planté’s help, he assessed knowledge, abilities and personal suitability in this appointment process. He said that he had the opportunity to observe Mr. Planté’s staffing-related knowledge and skills.

15Mr. Demontigny described the process by which the essential qualifications were assessed. Knowledge of materials handling was assessed in a written test comprising 31 multiple-choice questions. Ability to manage complex lifting operations was assessed in a practical test developed by an outside firm specialized in the field, based on procedures provided by management. A representative of the outside firm also helped Messrs. Demontigny and Planté assess the results. They observed and noted the candidates’ actions using a checklist provided by the firm. After that, they assessed each candidate’s results using a scoring system established in advance by the committtee.

16The other abilities and the personal suitability qualifications (including service orientation) were assessed by means of a writen test and an interview. Mr. Demontigny explained that he read over the written test instructions with each candidate and gave them the opportunity to ask questions and take notes. Each candidate then had 90 minutes to complete the test. At the interview, Mr. Demontigny read out and submitted the questions to each candidate and gave them 30 minutes to prepare. Candidates were encouraged to outline their answers in writing. Messrs. Demontigny and Planté noted the candidates’ answers in their entirety. After candidates provided their answer, they were asked whether they had anything to add. The interview results were assessed by consensus.

17Two candidates, namely Michel Provost and Michel Larocque, met all the essential qualifications.

18The complainant was successful at each stage of the assessment except the “service orientation” personal suitability qualification, for which he did not obtain the minimum score. He was therefore considered unqualified for the position.

19Mr. Provost, another handling operator, testified that he disagreed with this decision and that he turned down the position when he found out that the complainant had not qualified. It was the complainant who had taught him his job and had given him guidance when he himself was acting coordinator.

20The complainant’s answers and the board’s handwritten notes in connection with the questions assessing the “service orientation” personal suitability qualification were adduced in evidence.

21Mr. Demontigny explained that the coordinator position is a frontline position. In response to the questions assessing service orientation, a candidate had to state the actions that he would take and the methods that he would put in place if faced with a given situation. The appropriate response was to identify the constraint involved and decide on the approach. Mr. Demontigny said that the complainant’s answers were found insufficiently detailed, and that he neither considered nor provided enough options for the situations in question. The complainant’s answer was related to his workload but he did not consider the need to look into the workloads of the people with whom he was dealing.

22The complainant asserts that the interview was much too long, and that it stressed the responsibilities of a team leader (GL-PRW-7C3), who must make decisions, instead of the responsibilities of a coordinator (GL-PRW-7B3), who need not make decisions. In his view, the board was unfamiliar with his work record and abilities. He says that reference checks would have yielded feedback from managers about his consistently high quality of client service.

The complainant’s union activities

23The complainant raised the possibility that he was treated differently because he is a union representative. He wonders whether this accounts for the finding that he was not qualified — a finding that he submits was unfair to him.

24He said that, in his capacity as a union representative, he intervened in Mr. Demontigny’s business process a few times. He believes that even though he was not on bad working terms with Mr. Demontigny and that their dealings were not frequent, it is possible that Mr. Demontigny did not appreciate his interventions.

25Mr. Demontigny said that the complainant represented employees a few times in matters pertaining to his business process. There was no animosity in their dealings. He has never supervised the complainant, but he has worked alongside him. He described the complainant as a gentleman who is fair-minded and forthright and an excellent worker, coordinator and team leader (though he had less contact with him as a team leader). He is dynamic, has excellent interpersonal skills, and provided consistent service as a supervisor with Level of Supervision B and C.

26Essentially, the complainant was under the impression that the results of the process amount to a determination that he does not know his job and is incapable of doing it. Given all his accomplishments at the unit, and his work as acting coordinator for all those years, he would have appreciated it if his name had been included in the pool of qualified individuals so that he could at least replace people on an acting basis while those people are away.

27Mr. Demontigny said that he understands the deep disappointment felt by the complainant, whose good work all those years has culminated in an unsuccessful appointment process. He specified that an appointment process is merely a “snapshot” of what arose during the assessment process, not a reflection of an entire career. Mr. Demontigny confirmed that, if and when acting appointments to the materials handling operations coordinator position need to be made, management will turn to the pool of qualified candidates first.

Parties’ arguments

A) Complainant’s arguments

28The complainant argues that his elimination from this appointment process is an improper result, because he has been found unqualified even though the respondent always judged him sufficiently qualified for the acting coordinator position in the past. In his view, the reference letter and his colleague’s testimony prove that he is competent. He also argues that he was improperly assessed because he was only a few points short of meeting the “service orientation” essential qualification, and that it would have been more appropriate for the respondent to use reference checks to assess this criterion.

29The complainant notes that staffing is a power delegated by the PSC. Section 16 of the PSEA specifies that section 29(3) requires deputy heads to comply with PSC staffing policy. The ADAI contains the same requirements. The PSC staffing policy states that those who do assessments need to have had PSEA training. The complainant submits that the respondent has not proven that the use of Mr. Planté was permitted by the Appointment Policy or that he received the necessary PSEA training. The complainant also argues that the use of an external firm instead of Public Service employees contravenes the Appointment Policy.

30The complainant asks that his name be included in the pool of qualified individuals and that he be reassessed on the “service orientation” essential qualification.

B) Respondent’s arguments

31According to the respondent, the complainant has not proven any abuse of authority or even any error, omission or improper conduct. The appointment process was structured and carried out by qualified people, and assessment tools made it possible to assess the essential qualifications. The complainant did not show that he met the “service orientation” qualification, and, as Mr. Demontigny explained, his answers were unsatisfactory. The complainant has adduced no evidence to prove that the board’s decision was an abuse of authority.

32The respondent submits that there is no evidence that Mr. Planté is unqualified. Notwithstanding Mr. Demontigny’s testimony that he was able to observe Mr. Planté’s aptitudes and knowledge, it is the respondent who hired him for this staffing process and who deemed him qualified.

33The respondent submits that the use of an outside firm shows concern for ensuring that the assessment method would be appropriate and developed by competent people.

34The respondent notes that the complainant has not said anything that suggests that there were tensions between himself and Mr. Demontigny due to his union activities. As for Mr. Planté, the respondent submits that his judgment cannot have been influenced by the complainant’s union activities, because he did not know the complainant.

35The respondent also argues that the PSC Appointment Policy was not contravened. In fact, as required by the policy, the board used competent people and appropriate tools to assess the qualifications. The respondent submits that it is the PSC that has jurisdiction to examine issues regarding the ADAI.

36Lastly, the respondent notes that it understands the complainant’s disappointment, but submits that no evidence of abuse of authority has been presented to the Tribunal in relation to the assessment method chosen, or the assessment of the complainant.

37The respondent therefore asks the Tribunal to dismiss this complaint.

C) Public Service Commission’s arguments

38The PSC supports the respondent’s arguments.

D) Complainant’s reply to the PSC

39The complainant argues that an abuse of authority can occur at any stage of an appointment process, and that the Tribunal’s jurisdiction is not limited to the essential qualification that the complainant failed to meet and the events that occurred in the course of his assessment.

40An abuse of authority under section 77 of the PSEA is tied to the exercise of the duty delegated to deputy heads by virtue of section 30. The complainant asks the Tribunal to find that the delegation agreement imposes conditions on deputy heads’ exercise of authority under section 30, and that a failure to abide by the ADAI is therefore a contravention of the PSEA.

Relevant legislation and policy

41The following provisions of the PSEA are relevant to this complaint:

2(4) For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.

15(1) The Commission may authorize a deputy head to exercise or perform, in relation to his or her organization, in the manner and subject to any terms and conditions that the Commission directs, any of the powers and functions of the Commission under this Act […]

16 In exercising or performing any of the Commission’s powers and functions pursuant to section 15, a deputy head is subject to any policies established by the Commission under subsection 29(3).

29(3) The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.

30(2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency

[…]

36 In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

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

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

[…]

88(2) The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83.

42The PSC Appoinment Policy and the ADAI, quoted below, are also relevant to this case:

Appointment Policy – Assessment

Policy Statement

The assessment is designed and implemented without bias, political influence or personal favouritism and does not create systemic barriers.

The assessment processes and methods effectively assess the essential qualifications and other merit criteria identified and are administered fairly.

[…]

Policy Requirements

In addition to being accountable for respecting the policy statement, deputy heads must

[…]

• ensure that those responsible for assessment:
  • have the necessary competencies to ensure a fair and complete assessment of the person’s qualifications;

[…]

Appointment Delegation and Accountability Instrument (ADAI) between the PSC and the Department of National Defence

Conditions of Delegation

• […]
• ensure that appointment decisions adhere to the requirements of the PSEA […];
• adhere to the PSC’s appointment policies;
• […]

Analysis

Issue I: Did the respondent abuse its authority in finding that the complainant did not meet the “service orientation” essential qualification?

43The complainant alleges that his elimination from the appointment process is an “improper result” because he has already been found qualified to occupy the position of acting coordinator on several occasions. Moreover, the complainant argues that the tool chosen to assess the “service orientation” essential qualification was inappropriate, and that the respondent should have used reference checks.

44In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal listed five potential categories of abuse that can serve as a useful framework in assessing allegations of abuse of authority under the PSEA.

45In this case, the second and third categories of abuse of authority are relevant in assessing the allegations:

(2) When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters).

(3) When there is an improper result (including unreasonable, discriminatory, or retroactive administrative actions).

46Section 36 of the PSEA gives deputy heads discretion to choose and use the methods they consider appropriate in determining whether candidates meet the qualifications referred to in section 30(2) of the PSEA.

47In order for the Tribunal to find that the result was improper and that there was an abuse of authority in the choice and use of the assessment tools and methods, the complainant must show that they were unreasonable and could not assess the qualifications stipulated in the statement of merit criteria, that they have no connection to those criteria, or that they are discriminatory (see Jolin v. Deputy Head of Service Canada, 2007 PSST 0011 at para. 37 and 77).

48In this case, instead of using reference checks, the respondent chose to use written test questions and an interview to assess the “service orientation” personal suitability qualification. This choice of tools, and the use of those tools to assess the qualification in issue, were made objectively and within the framework of the discretion contemplated in section 36 of the PSEA. All the candidates were treated equally, whether they had occupied the position on an acting basis or not, and the complainant reported no serious error, omission or improper conduct in the use of the assessment tools. In this Tribunal’s opinion, once the assessment tools were chosen and the assessment process was under way, it would have been improper for the board to alter its approach and add to or change the tools.

49The complainant failed to show that the tool used to assess the essential “service orientation” qualification were not instrumental in assessing the qualification; he did not show either that the respondent made a mistake in assessing that qualification.

50Consequently, the Tribunal finds that the complainant has not shown that the respondent abused its authority in assessing “service orientation.”

Issue II: Did the respondent abuse its authority and show bias against the complainant because of his union activities?

51The Tribunal can find that there is bad faith within the meaning of section 2(4) of the PSEA, and therefore an abuse of authority, if the conduct of those responsible for the assessment gives rise to a reasonable apprehension of bias. As the Tribunal noted in Denny v. Deputy Minister of National Defence, 2009 PSST 0029 at para. 125, citing the decision in Committee for Justice and Liberty v. National Energy Board (1976), [1978] 1 S.C.R. 369, the test that the courts have articulated to determine whether there is a reasonable apprehension of bias is to ask:

[…] 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 [the person], whether consciously nor unconsciously, would not decide fairly.

52This test can also be applied when analysing the circumstances surrounding allegtions of bias in an appointment process. The Tribunal can find that there has been an abuse of authority if a relatively well-informed observer could reasonably perceive bias from one or more persons responsible for the assessment.

53However, in this case the complainant has adduced no evidence based on which a well-informed person could conclude that the decisions that Mr. Demontigny and Mr. Planté’s made in his regard give rise to a reasonable apprehension of bias, specifically because he is a union representative.

54The complainant adduced no evidence showing how and why the assessment of his interview or written test answers could raise a reasonable apprehension of bias. Moreover, he did not mention any conflict between himself and Mr. Demontigny. In fact, he said that their dealings have been positive, and Mr. Demontigny testified to the same effect, describing the complainant as an excellent employee who provided consistent service as a coordinator or team leader.

55Consequently, the Tribunal finds that the complainant has not shown that the respondent abused its authority and was biased during this appointment process.

Issue III: Did the respondent violate the Appointment Policy and thereby abused its authority?

56Under section 29(3), the PSC may establish policies respecting the manner of making and revoking appointments, and under section 16, the deputy head must comply with these policies (see Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0024 at para. 69). The ADAI, to which the complainant refers in his argument, merely states that deputy heads must comply with the obligations set out in the PSEA and in the PSC’s Appointment Policy.

57The Policy Requirements contained in the PSC Policy – Assessment specify that a deputy head must ensure that “those responsible for assessment have the necessary competencies to ensure a fair and complete assessment of the person's qualifications.” The complainant has not shown that the board members did not have the competencies necessary to carry out their duty. The evidence shows that Mr. Demontigny received staffing training from the PSC. As for Mr. Planté, a casual employee hired by the respondent for the purposes of this process, Mr. Demontigny said he found him to be competent, and no evidence was adduced to contradict that assertion.

58With respect to the use of an outside firm to develop the practical test, the Tribunal notes that section 1.7 of the PSC’s Guidance Series – Assessment, Selection and Appointment, specifies that themembers of an assessment board can come from the private sector, as long as they have the necessary qualifications or competencies.

59In any event, the representative from the outside firm was not a member of the assessment board. Mr. Demontigny explained that the board chose the assessment tools, that the practical test designed by the external firm was designed using criteria provided by the respondent, and that the board, with the assistance of the outside firm, assessed the results of the test. There is no evidence to show that the firm lacked the qualifications or competencies necessary to carry out the tasks entrusted to it.

60The Tribunal finds that the complainant has not shown that the respondent abused its authority in assessing the essential qualifications, or that the respondent violated the PSEA or the PSC Appointment Policy.

Decision

61For all the above reasons, the complaint is dismissed.

Lyette Babin-MacKay

Member

Parties of Record

Tribunal File:

2008-0767

Style of Cause:

Serge Bédard and the Deputy Minister of National Defence

Hearing:

January 11-12, 2010
Montréal, Quebec

Date of Reasons:

September 27, 2010

APPEARANCES:

For the complainant:

Louis Bisson

For the respondent:

Anne-Marie Duquette

For the Public
Service Commission:

 Marie-Josée Montreuil