FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Nathan Rochon, is alleging abuse of authority in the conduct of an appointment process for a Carpenter Foreman position in the Canadian Coast Guard base at Prince Rupert, British Columbia. He is alleging abuse of authority in the choice and application of assessment methods, favouritism towards the person who is being considered for appointment and failure to accommodate him in the scheduling of his interview.

2 The respondent, the Deputy Minister of Fisheries and Oceans, contends that the complainant was eliminated from the appointment process because he failed to meet three of the essential qualifications for the position.

3 As will be explained in the decision, the Public Service Staffing Tribunal (the Tribunal) finds that the respondent was careless in the design and application of the assessment tool used in this appointment process. This carelessness was sufficiently serious as to constitute an abuse of its authority.

Issues

4 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in the choice and application of assessment methods?
2. Did the respondent demonstrate favouritism towards the successful candidate?
3. Did the respondent fail to provide the complainant with appropriate accommodation in the scheduling of his interview?

Summary of Relevant Evidence

a) Evidence related to the assessment process

5 On February 26, 2009, the respondent initiated an internal advertised appointment process for a Carpenter Foreman position at the Canadian Coast Guard base in Prince Rupert, British Columbia.

6 The appointment process was managed by an assessment board chaired by Harry Young, who is the Supervisor, Marine Civil Infrastructure, Canadian Coast Guard, in Prince Rupert. Mr. Young developed the Statement of Merit Criteria (SMC) for the position, in consultation with human resources and his superintendent. Mr. Young also designed the Assessment Rating Guide (Guide), which contained interview questions that were used to assess the candidates’ essential qualifications.

7 Mr. Young invited Stewart McDevitt, a Carpenter Foreman at the Canadian Coast Guard base in Victoria, British Columbia, to participate on the assessment board. Mr. Young is not a carpenter by profession and he wanted someone who is an expert in the field and who also did not know any of the candidates, to participate on the board.

8 Mr. McDevitt confirmed his role as subject-matter expert and testified that he did not know any of the candidates prior to the appointment process.

9 Four persons, including the complainant, applied for the position.

10 The complainant was interviewed on March 11, 2009 and he was notified on March 12, 2009, that he had been found qualified for appointment and placed into a pool of candidates for possible future appointment.

11 A Notification of Appointment or Proposal of Appointment for another qualified candidate, Jeremy Yamamoto, was issued on March 19, 2009. As of the date of the hearing, Mr. Yamamoto had not been appointed to the position.

12 On April 3, 2009, the complainant filed his complaint of abuse of authority under s. 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA).

13 After the complaint was filed, the respondent’s human resources staff conducted a review of the assessment process file and determined that an error had been made in assessing the candidates. The assessment board had assessed candidates against each individual essential qualification, but determined whether or not they passed the interview on the basis of an overall or global pass mark. The pass mark was determined without considering whether the candidates had passed each individual essential qualification.

14 The assessment board used the Guide in the interview to mark a candidate’s score for each essential qualification. The complainant had been awarded 84 of 119 points for his interview. The Guide identifies 76 points as the pass mark. The initial Screening Board Report, which summarized the candidates’ scores on each of the interview questions, along with the corresponding pass mark for each question, identifies the complainant as having qualified for the position. However, it also showed that the complainant failed to obtain pass marks on three of the essential qualifications.

15 The initial Assessment Board Report, signed by Mr. Young and Mr. McDevitt in March 2009, indicated that all four candidates had exceeded the global pass mark and were found qualified.

16 Mr. Young testified that he had previous experience in approximately eight appointment processes under the former PSEA’s staffing regime. In those processes he had rated candidates globally. He did not realize that this was no longer an acceptable practice until human resources staff informed him that candidates had to meet each individual essential qualification. He reviewed the marking of all four candidates and determined that only Mr. Yamamoto had met each of the essential qualifications. As a result, the complainant and the two other candidates were informed on June 3, 2009 that they were eliminated from the appointment process because they had not met all of the essential qualifications.

17 To correct the error, a second Screening Board Report (undated) and Assessment Board Report were prepared. The new Assessment Board report was signed by the two board members in July 2009. Both documents show that only Mr. Yamamoto was found qualified.

18 The complainant identified what he believes were a number of problems with the assessment of the essential qualifications, as follows:

(i) Failure to associate interview questions with the essential qualifications for the position

19 The Guide was set up in boxes and columns. Each box contained the assessment information for a qualification. Boxes were subdivided into seven columns, listing, respectively, the qualification being assessed, the interview question, the answer material, the maximum rating, the pass mark, a blank space for the assessment board member to write notes on a candidate’s answer, and the board’s numerical rating of the candidate on the question(s). Experience qualifications were identified by the letter E, knowledge qualifications by the letter K, abilities qualifications by the letter A and personal suitability qualifications by the letter P. For most of the qualifications, the qualification box included a letter/number for the qualification that was being assessed, followed by a description of the qualification from the SMC. For example, under knowledge qualifications, the first qualification shown in the Guide was “K1” followed by “Knowledge of the principles and practices of trade math as applied to layouts of buildings and structures.”

20 The complainant noted that for qualifications A2 and P4 only the letter/number was shown with no description of the qualification being assessed. He also noted that the description for qualification A4 was located in the box in the Guide which corresponds to the assessment information for qualification A3. Furthermore, he testified that none of the interview questions was assigned to assess the “ability to work with a minimum of supervision and set priorities”, one of the essential qualifications set out in the SMC.

21 Mr. Young explained in his testimony that the question for A2 is, in fact, linked to the “ability to manage human and financial resources, contracts and projects.” The same ability assessed by A1. He acknowledged that he had failed to type the qualification description beside A2 on the Guide. He also testified that he similarly failed to type the relevant qualification (leadership) beside question P4 on the Guide. Mr. Young contends that it is obvious, however, that P4 is related to the leadership qualification because the question concerns the ability to lead a team. Mr. Young did not comment on the complainant’s allegations regarding the location of the description for qualification A4 or the absence of a question regarding the “ability to work with a minimum of supervision and set priorities.”

(ii) Dividing and combining the assessment questions

22 The complainant observed that the answers to the questions for qualifications K2 and K3 were separated into parts and there was a separate pass mark assigned to each part of the question. He contends that the normal practice is to have a single pass mark for every question, and that it was inappropriate to have a separate pass mark for each part of the question.

23 The complainant also observed that there was a combined score for qualifications E1 and E2, with a maximum rating of 10 points and a pass mark of 7 points for these two qualifications combined. Mr. Young’s explanation for having decided to combine the assessment of these two qualifications was simply that this was the way he had set it up before the process started.

(iii )Providing candidates with insufficient information to answer one of the questions

24 The interview question for E3 was based on information that was provided to the candidates on a laminated blueprint. The complainant contends that the blueprint lacked certain necessary information that candidates required to complete the requested calculation. He requested and received this information during the interview and was therefore able to make the calculation. During the exchange of information with the respondent, the complainant requested to view the original laminated blueprint. He said that Mr. Young told him that he could not find it. The complainant was instead given a paper version of the blueprint, which he claims was not the one used in the interview. He said that this latter version included the information that was missing from the laminated blueprint used in the interview. He testified that although Mr. Yamamoto passed this question, it was impossible for him to have calculated a correct answer without the missing information. According to the Screening Board Report, two candidates, including Mr. Yamamoto, passed E3, while the complainant and another candidate failed this qualification.

25 Mr. Young explained in his testimony that he laminated the blueprint so that it would be durable enough to last through the four interviews. Afterwards, he threw it out, believing that it was sufficient to keep the paper version on file. He said that the paper blueprint provided to the complainant following the exchange of information was identical to the blueprint used in all four interviews. He said that it was a computer aided design drawing obtained from engineering services at the Canadian Coast Guard in Victoria and that he did not have the ability to change it. Furthermore, even if he could change the blueprint, he would have had to conspire with the other board member, Mr. McDevitt, to prepare and laminate two copies so he could give a different version to different candidates. Mr. McDevitt, in turn, testified that he worked through E3 by himself prior to the interviews and that all the necessary information to complete the calculation was on the blueprint.

(iv) The ability of candidates to view the work of other candidates

26 To assess qualification K4, candidates were required to log onto a computer program called MAXIMO to complete a work order. The complainant testified that he was the last person to be interviewed and he later discovered that it was possible to log onto MAXIMO and pull up the work orders completed by the other candidates. He also said it would have been possible for him to go to his office after the interview, log on and change his answers.

27 Mr. Young testified that the purpose of the exercise for K4 was to determine if the candidates could create an electronic work order in front of the board. There was a computer in the interview room and the board observed the candidates and marked them as soon as they completed the task.

b) Evidence related to the allegation of favouritism

28 The complainant testified regarding a number of events that led him to believe that Mr. Yamamoto was given favourable treatment in the appointment process. First, he gave an answer of $10,000 on question A2 and was given a passing mark even though the Guide says that the correct answer is $1,000. Second, Mr. Yamamoto was given a passing mark on K4 even though the computer froze and he was not able to complete the work order. Third, on E3, Mr. Yamamoto used the correct math even though there was insufficient information on the blueprint to calculate a correct answer. Fourth, the complainant testified that Mr. Young was asked for the name of the successful candidate in the appointment process and he replied: “The person we thought was going to win, won.” The complainant did not identify the person who allegedly posed the question to Mr. Young. Fifth, the Rationale Statement for Selection Decision states that Mr. Yamamoto obtained the highest interview score of the four candidates, but the rating summary shows that Mr. Yamamoto and another candidate both obtained scores of 94. Sixth, the complainant contends that since Mr. Young was the only board member who knew the candidates, it was he who determined that Mr. Yamamoto was the right fit for the position.

29 With respect to the first of the complainant’s claims, Mr. Young testified that he discovered during the interview process that Public Works and Government Services Canada had raised the limit for contracted services from $1,000 to $10,000. Therefore, the board decided to accept either answer as correct for A2.

30 Mr. Young testified that the computer froze while Mr. Yamamoto was completing the work order related to K4. He had logged on and was having no difficulty filling out the document until the computer froze. The board decided to ask him to verbally take them through the completion of the process. Mr. Yamamoto did this and left his notes with the board. The board was satisfied that Mr. Yamamoto knew how to complete the process on the computerized work order software (known as MAXIMO) and gave him a passing mark.

31 With respect to E3, both Mr. Young and Mr. McDevitt testified that all four candidates were provided with the same blueprint and it contained all of the necessary information.

32 Despite the information on the Screening Board Assessment Report, Mr. Young testified that he believed that Mr. Yamamoto had obtained the highest score amongst the four candidates. Furthermore, he testified that it is no longer necessary to appoint the candidate with the highest score. He noted that under the new PSEA, managers have some leeway to select the “right fit.” According to Mr. Young, Mr. Yamamoto met all of the essential qualifications and also met the organizational need for persons from a designated group, under the Employment Equity Act, S.C. 1995, c. 44.

33 Mr. McDevitt testified that both he and Mr. Young discussed and agreed on the right fit rationale to appoint Mr. Yamamoto to the position.

34 Mr. Young did not provide any testimony regarding the allegation that he had expected Mr. Yamamoto to win the appointment process.

c) Evidence related to the complainant’s claim that he was not accommodated

35 The complainant testified that he learned on March 9, 2009 that his interview was scheduled for March 10. He telephoned Mr. Young early on the morning of March 9 to say that he would not be available on March 10 because his wife was about to give birth. Mr. Young replied that he would reschedule the interview. At 3:50 p.m. on March 9, the complainant called Mr. Young to find out the date of the rescheduled interview. Mr. Young’s assistant informed him that it had been rescheduled to March 11.

36 On the evening of March 9, the complainant’s wife gave birth and he spent most of March 9 and 10 in the hospital. He said that he was not “feeling 100%” when he went in for the interview on March 11 and he would have rescheduled the interview if he thought it were possible to do so. He said Mr. Young told him after the interview had taken place that he should have called him on March 10 to reschedule the interview, but the complainant thought the new interview date was final.

37 The complainant acknowledged that the Job Opportunity Advertisement states that candidates should advise the respondent of their need for accommodation, but he said that he did not have this document with him at the hospital.

38 Mr. Young testified that everyone at the workplace was aware that the complainant’s wife was about to have a child. Therefore, he scheduled the complainant’s interview last. Mr. Young said the complainant knew his cell phone number and could have contacted him to change the interview. He also testified that the complainant arrived at the workplace early on the day of the interview and was chatting with colleagues outside of Mr. Young’s office. He said that the complainant could have approached him to postpone the interview but he never did so.

Arguments of the parties

A) Complainant’s arguments

39 The complainant’s arguments were brief and predicated on his belief that the evidence spoke for itself. According to the complainant, the evidence shows that the respondent did not conduct the appointment process in a fair and open manner.

40 The complainant submits that the marking method should have been determined before the appointment process began and should not have been changed afterwards. Based on the revised marking method, the complainant argues that none of the candidates should have been found qualified. He submits that the evidence demonstrates that Mr. Yamamoto should have been failed on qualifications E3, K4 and A2.

41 As corrective action, the complainant requested that the successful candidate not be considered for appointment.

B) Respondent’s arguments

42 The respondent argues that the threshold for establishing abuse of authority is high, that the complainant must show that the respondent demonstrated bad faith, acted dishonestly or in a manifestly arbitrary fashion, and that abuse of authority requires more than mere errors or omissions. The respondent cited Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at paras. 50 and 65, in support of these arguments.

43 The respondent submits that under ss. 30(2) and 36 of the PSEA, it has broad discretion to establish the necessary qualifications for a position and to choose the assessment methods.

44 According to the respondent, the process was fair and transparent from the outset. The assessment board consulted with senior managers and human resources staff on each step. The choice and application of the assessment tool was designed to accurately assess candidates based on the work to be performed. The respondent submits that the evidence of its witnesses was clear, cogent and compelling, demonstrates a direct connection between the assessment criteria and the work to be performed, and reflects a fair and non‑discriminatory assessment process

45 The respondent argues that Mr. Young was able to easily explain the relationship between the assessment criteria and each question, even where descriptions were absent. On reading the questions, the relationship between the questions and the qualification is self-evident.

46 The respondent submits that minor errors do not invalidate an assessment process. It refers to Visca v. Deputy Minister of Justice, 2007 PSST 0024 at para. 38, and Oddie v. Deputy Minister of National Defence, 2007 PSST 0030 at paras. 88 and 89. It admits that there was an initial error when the assessment board used a global rating. However, the assessment questions were based on the merit criteria and when the assessment board changed its rating method all of these criteria were still assessed.

47 Regarding the question for A2, the respondent acknowledges that there were two correct answers. Having recognized this, full marks were given to candidates who gave either answer.

48 The respondent also acknowledges that there is no description of qualification P4 on the Guide, but Mr. Young easily related the question to the appropriate merit criteria - leadership.

49 The respondent noted that to ensure transparency, Mr. McDevitt was invited to participate on the assessment board as a subject-matter expert and because he did not know any of the candidates.

50 With respect to the question for qualification E3, both of the respondent’s witnesses testified that all of the candidates received an identical blueprint.

51 Although the complainant testified that he had heard statements that Mr. Yamamoto was expected to be the successful candidate in the appointment process, he did not identify the source of these statements and in what circumstances they were made. The respondent argues that the complainant’s evidence regarding these alleged statements is, in any event, merely hearsay.

52 The respondent submits that it was clearly marked on the job advertisement that candidates could request accommodation, if it was needed. Mr. Young testified that the complainant requested no further accommodation beyond what had been granted to him.

53 The respondent requests that the complaint be dismissed.

C) Public Service Commission’s arguments

54 The Public Service Commission (PSC) did not attend the hearing but made written submissions providing an analysis of PSC policies that it considered relevant to the complaint.

55 The PSC submits that its Assessment Policy requires that assessment methods and processes identify persons who meet the qualifications used in the appointment decision and provide a sound basis for making appointments according to merit. Each identified essential qualification must be assessed. The assessment methods, processes and tools must be directly linked to the identified merit criteria and accurately measure the criteria. Deputy heads are to ensure that assessment board members can carry out their roles and responsibilities fairly and justly. Sub-delegated managers are to have a sound rationale for the decisions that they make.

56 The PSC submits that the analysis that should be applied to the choice and application of the assessment method in this case is found in the decision in Jolin v. Deputy Head of Service Canada, 2007 PSST 0011. In order for the Tribunal to find that there was abuse of authority in the selection of assessment methods, the complainant must prove that the result is unfair and that the assessment methods are unreasonable, do not allow for the qualifications to be assessed, have no connection to the qualifications stipulated in the SMC or are discriminatory.

57 The PSC submits that its Selection and Appointment policy stipulates that appointments are to be based on merit and are to be free from political influence and personal favouritism. The policy requires that the reasons for the appointment decision be documented. It further submits that a finding of personal favouritism is one based on facts that satisfy the Tribunal that undue personal interests and not merit constituted the grounds for appointment.

Analysis

58 The complainant has presented a complaint under s. 77(1) 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.

59 Abuse of authority is not defined in the PSEA, but s. 2(4) reads: “[F]or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

60 Section 30 of the PSEA provides that appointments are to be based on merit and that appointees must meet the essential qualifications for a position as established by the deputy head.

Issue I:  Did the respondent abuse its authority in the choice and application of assessment methods?

61 In Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0024 at paras. 68 and 92, the Tribunal found that multiple errors and omissions by the respondent in an appointment process may lead to a conclusion that the respondent abused its authority. In Burke v. Deputy Minister of Department of National Defence, 2009 PSST 0003 at paras. 56 and 63-64, the Tribunal found that the application of a flawed assessment tool does not provide a sound basis for concluding that a person is qualified for appointment. In this appointment process, the Tribunal finds that the errors and omissions are sufficiently serious that it cannot be determined if the proposed appointment was, in fact, based on merit as required under s. 30 of the PSEA. This amounts to abuse of authority.

62 The first of these significant errors involves the combination of two essential qualifications: “Experience in coordinating and organizing construction projects in the field and shops” and “Experience in estimating for cost of materials, time and human resource requirements,” identified for the purposes of assessment as E1 and E2, respectively. The problem with this assessment method is that E1 and E2 are separate essential qualifications on the SMC. The respondent acknowledged that it was improper not to have initially assessed the candidates on the basis of each qualification individually rather than assigning one global overall rating. However, the respondent still ultimately used a single global rating to assess qualifications E1 and E2 without individually assessing them. A candidate may obtain a single overall pass mark on E1 and E2, without having been demonstrated that they meet each of these qualifications individually. The respondent’s assessment method is contrary to s. 30(2)(a) of the PSEA, which requires that persons must satisfy the Commission or deputy head that they meet each of the essential qualifications for a position in order to be appointed.

63 The second significant error raised in the complainant’s evidence is the absence of a question to assess the essential qualification: “Ability to work with a minimum of supervision and set priorities.” This ability is identified as an essential qualification on the SMC. It cannot be found on the list of qualifications on the Guide. Neither Mr. Young nor Mr. McDevitt addressed this evidence in their testimony.

64 There is a qualification handwritten on the interview guides of both Mr. Young and Mr. McDevitt entitled “Ability to supervise.” Ability to supervise is not a qualification on the SMC and it is not the same as the ability to work with a minimum of supervision and set priorities. The question for the ability to supervise concerns sending staff to a remote site and instructing those staff about how to handle their workload. There is nothing in the assessment notes of either board member to suggest that this qualification is connected to the ability to work with a minimum of supervision and set priorities.

65 As the Tribunal stated in Tibbs, at para 54, in the absence of evidence to the contrary, the Tribunal may draw reasonable inferences from uncontested facts:

[54] While it is open to the respondent, for its part, to simply deny the assertion, once the complainant has presented some evidence in support of his or her assertion that abuse of authority has occurred, then the respondent will likely wish to raise a positive defense to the assertion.  Moreover, it is open to the Tribunal to draw reasonable inferences from uncontested facts and, thus, if the respondent does not present evidence to explain its reasons for a particular course of action or conduct, it risks being faced with an adverse finding by the Tribunal, namely, a substantiated complaint:  Gorsky, Uspich & Brandt, supra, at 9-15, 9-16.

66 The respondent did not lead any evidence to address or explain the error raised by the complainant with respect to this qualification. It is reasonable, therefore, to infer that the assessment board was not assessing the ability to work with a minimum of supervision and set priorities when the board wrote that it was assessing the ability to supervise.

67 The PSC Assessment Policy, to which the respondent is subject under s. 16 of the PSEA, requires the respondent to demonstrate a clear link between the essential qualifications in the SMC, the chosen assessment tools and methods, and the conclusions drawn from applying those tools and methods to the assessment of candidates. The respondent has not effectively done so with respect to the “ability to work with a minimum of supervision and set priorities” and the Tribunal, therefore, cannot conclude that this essential qualification has been assessed. There is no clear link between this qualification and the methods used to assess it. Therefore, the Tribunal is not satisfied that the board assessed this ability qualification set out in the SMC.

68 The third significant error concerns the essential qualification “Ability to effectively communicate, both orally and written (sic)”. The complainant testified that beside A4 in the Guide, there is no description of what qualification is being assessed. The communications ability is typed in the box on the Guide for qualification A3. The respondent’s witnesses presented no evidence on this point. However, both assessment board members noted in their copies of the Guide that A4 is related to the communications qualification. Mr. Young wrote A4 beside the description of the communications qualification and Mr. McDevitt moved the line separating A3 from A4 above the description of the communications qualifications. It is clear that the intent of these handwritten changes was to link the communications ability to the question and answer material in the box for qualification A4.

69 The question for A4 asks candidates to: Explain how you would deal with an employee who is not performing up to standard in the “job and duties. If discipline was required how would you go about that process?”

70 The answer material describes 13 steps that a supervisor would normally follow in dealing with an employee who has demonstrated poor performance. There is nothing in the answer material to show how a candidate’s answer to this question demonstrates his/her ability to communicate orally or in writing. Nothing in the board’s interview notes for the complainant, or in Mr. Young’s notes for Mr. Yamamoto, indicate that communications abilities are being assessed.

71 It is possible to assess a candidate’s oral communications ability through various types of questions, technical or otherwise. The problem here is that there is no clear link between the essential qualifications in the SMC, the chosen assessment tools and methods, and the conclusions drawn from applying those tools and methods to the assessment of these candidates. Even if one is generous in accepting that the board assessed the ability to communicate orally, there is nothing in the assessment process to demonstrate that it assessed the ability to communicate in writing. There are no other questions in the Guide dealing with this ability. According to the formal allegations of the complainant, the selection process was based solely on the interview. There is no evidence that any other assessment tools were used in assessing candidates on this ability for this appointment process.

72 While s. 36 of the PSEA provides deputy heads with broad discretion in the selection and use of assessment methods, these methods must effectively assess the qualification, and be used in a fair and reasonable manner. The deputy head may be found to have abused his or her authority where the methods used have no connection to the qualifications or do not allow those qualifications to be assessed, the tool is flawed or the outcome cannot be considered reasonable or fair. (See, for example, Ammirante v. Deputy Minister of Citizenship and Immigration 2010 PSST 0003 at para. 98 and Burke at paras 56 and 63-64).

73 In the result, the Tribunal finds that the respondent was careless in designing and applying its assessment method. It further finds that this carelessness was sufficiently serious as to constitute abuse of authority. The respondent assessed two of the experience qualifications on the basis of a combined score, rather than assessing each of these essential qualifications individually. Furthermore, the Tribunal is not persuaded that the respondent assessed two of the essential abilities qualifications in the SMC: the ability to work with minimum supervision and set priorities and the ability to communicate, both orally and in writing.

74 The respondent corrected a number of other errors or explained to the Tribunal’s satisfaction that certain of its actions did not constitute significant errors, omissions or wrongdoing.

75 For instance, in the Rationale Statement for Selection Decision document, the assessment board wrote that Mr. Yamamoto obtained the highest score amongst the four candidates. In his testimony, Mr. Young maintained that this comment was correct. However, the Screening Board Assessment report submitted by the respondent shows that another candidate obtained the same score as Mr. Yamamoto. Obviously, both documents cannot be correct. Nevertheless, as Mr. Young noted in his testimony, it is not necessary to appoint the candidate with the highest score.

76 While Mr. Young acknowledged that no qualification was described beside question A2 on the Guide, he testified that it was related to the “ability to manage human and financial resources, contracts and projects” qualification. The same qualification assessed by A1. The Tribunal notes that A2 is in the same box as A1 and the question concerns contracting limits. Mr. Young’s explanation is reasonable.

77 In addition, while no description is shown beside qualification P4 in the Guide, Mr. Young explained that P4 is related to the “Leadership” qualification. The question for P4 concerns leading teams.

78 Furthermore, the complainant has not demonstrated that a number of his allegations reflect errors in the assessment process. For example, the complainant alleged that the Guide did not exist at the time of the interviews and was created afterwards. The evidence does not support this allegation. The scores for the complainant on both Screening Board Reports are the same. The only difference is that on the first report, the respondent determined who was qualified solely on the basis of a global score rather than considering whether candidates passed each individual qualification. All of the evidence points to the respondent having used the same results from the Guide for both assessments.

79 The complainant also alleged that it was improper for the respondent to assess K2 in four parts and K3 in two parts, with separate scores for each part. As stated above, s. 36 of the PSEA provides deputy heads with broad discretion in the choice and use of assessment methods. This may include using multiple methods to assess a qualification.

80 The complainant further claimed that the blueprint he was given following the exchange of information meeting is not the same one that was used in the interview to answer the question for E3. He says the blueprint provided to candidates at the interview was incomplete and it did not contain enough information to arrive at a correct answer. However, the Tribunal notes that Mr. McDevitt was invited to participate in the assessment process as a subject‑matter expert and because he did not know any of the candidates. These attributes were not challenged at the hearing. He testified that he completed the question for E3 himself prior to conducting the interviews. He recalled that all of the necessary information was available on the blueprint. Furthermore, Mr. Young testified that the document was prepared by engineering services in Victoria and that he did not have the means to alter it. The Tribunal accepts the respondent’s position that the blueprint provided to the candidates contained all of the necessary information. The Tribunal finds that, in accordance with the test for credibility established in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), the evidence led by the respondent regarding the blueprint is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”, and is, therefore, preferred over the evidence of the complainant on this matter.

81 In conclusion, s. 30 of the PSEA states that appointments are to be based on merit and that an appointment is based on merit where the person to be appointed meets the essential qualifications for the work to be performed. In this case, the Tribunal finds that the respondent has not demonstrated that Mr. Yamamoto meets all of the essential qualifications because it has not clearly established that he has been assessed against two of the abilities qualifications or that he met each of the experience qualifications. These are serious errors and omissions that constitute abuse of authority under s. 77(1) of the PSEA.

Issue II:  Did the respondent demonstrate favouritism towards the successful candidate?

82 The complainant argues that the respondent demonstrated favouritism towards the successful candidate. In support of this contention, the complainant testified that Mr. Yamamoto was (a) given a passing mark on the question for A2 even though he gave the wrong answer, (b) that he was given a passing mark on the question for E4 even though the computer froze and he did not complete the assigned task, (c) that he provided the correct answer on the question for E3 even though he did not have the necessary information to calculate the correct answer, (d) that Mr. Young stated that he expected Mr. Yamamoto to win the appointment process, (e) that Mr. Young alone determined that Mr. Yamamoto was the right fit for the position, and (f) that Mr. Young wrote in the Rationale Statement that Mr. Yamamoto obtained the highest score among the four candidates even though another candidate obtained the same score.

83 In Glasgow v. Deputy Minister of Public Works and Government Services 2008 PSST 0007 at para. 39, the Tribunal found that it is personal favouritism that constitutes abuse of authority. In the case at hand, the complainant has not produced any evidence of a personal relationship between Mr. Young and the successful candidate.

84 Regarding the specific allegations, the Tribunal finds that the complainant has not established that personal favouritism was a factor in the respondent’s decision to qualify Mr. Yamamoto. First, due to a change in contract limits, the board accepted two possible answers to question A2. The answer provided by Mr. Yamamoto was one of these answers and accurately reflected the more recently established contract limit. Second, the computer froze when Mr. Yamamoto was part way through the task for question E4. The board determined that he successfully completed part of the task on the computer and they allowed him to verbally describe the remaining steps. The board was satisfied that he had the experience necessary to meet this qualification. Third, the Tribunal has already determined that the blueprint provided candidates with sufficient information to answer the question for E3 correctly. Therefore, the fact that Mr. Yamamoto answered the question correctly is not evidence of improper conduct. Fourth, the complainant testified that Mr. Young stated that the person he thought would succeed in the appointment process, did, in fact, succeed, but he provided no evidence to support this allegation. Fifth, the complainant alleged that Mr. Young alone determined that Mr. Yamamoto was the right fit for the position, but the evidence of Mr. McDevitt is that both he and Mr. Young agreed that Mr. Yamamoto was the right fit for the position. Finally, based on the Screening Board Report, Mr. Young was incorrect when he stated in the Rationale Statement that Mr. Yamamoto obtained the highest score amongst the four candidates. Mr. Yamamoto had the same score as another candidate. However, this error does not in itself demonstrate personal favouritism and the Tribunal finds that the sole evidence of this error is insufficient to substantiate a claim that Mr. Yamamoto benefited from personal favouritism.

85 For these reasons, the Tribunal finds that the complainant has not demonstrated that personal favouritism was a factor in this case.

Issue III:  Did the respondent fail to provide the complainant with appropriate accommodation in the scheduling of his interview?

86 The complainant contends that due to the birth of his child, he was “not feeling 100%” on the rescheduled date of his interview and he would have preferred to undertake the interview at a later date. He believed that the date set for the interview was final and that it could not be changed. Mr. Young testified that the complainant did not request a further postponement of the interview.

87 The complainant made one request to postpone his interview and the request was granted. He wanted a further postponement but did not request one. He believed that the date of March 11, 2009 was final and could not be changed, but he presented no evidence to provide a basis for this belief. Mr. Young testified that the complainant arrived early for his interview and chatted with colleagues outside of his office but never approached him about postponing the interview. The complainant did not refute this testimony.

88 Mr. Young was not made aware of the complainant’s interest in postponing the interview a second time and there was no reason for him to have suspected that the complainant wanted a further postponement. The Tribunal therefore finds that the complainant has not established that the respondent abused its authority by failing to accommodate the complainant in scheduling the interview.

Conclusion

89 The Tribunal finds that the proposed appointment of Mr. Yamamoto is not based on merit as required under s. 30 of the PSEA. Therefore, the Tribunal finds that the respondent abused its authority, within the meaning of s. 77(1)(a).

Decision

90 For all these reasons, the complaint is substantiated.

Order

91 Under s. 81(1) of the PSEA, if the Tribunal finds that a complaint under s. 77 is substantiated, it may order the deputy head to revoke the appointment or not make the appointment, as the case may be. As the Tribunal has substantiated the complaint by finding that the proposed appointment was not based on merit, it orders the deputy head not to appoint Mr. Yamamoto to the position of Carpenter Foreman on the basis of this appointment process. In the event that Mr. Yamamoto has been appointed, The Tribunal orders that the respondent revoke his appointment within 60 days of this order.

Kenneth J. Gibson
Member

Parties of Record

Tribunal File:

2009-0202

Style of Cause:

Nathan Rochon and the Deputy Minister of Fisheries and Oceans

Hearing:

September 14, 2010
Prince Rupert, British Columbia

Date of Reasons:

February 10, 2011

APPEARANCES:

For the complainant:

Larry Teslyk

For the respondent:

Michel Girard