FPSLREB Decisions

Reasons for Decision

Introduction

1 In November 2008, the Deputy Minister of Environment Canada (the respondent) held an advertised internal appointment process to staff positions of Regional Director, Wildlife Enforcement Directorate, group and level GT-08, in Vancouver, British Columbia, a position whose linguistic profile is “English essential.” The complainant, Jean Desaulniers, applied for the position, but another candidate (John Wong) was appointed, as announced on September 14, 2009, in the Notification of Appointment or Proposal of Appointment.

2 The Job Opportunity Advertisement indicated that following the process, a fully assessed pool of candidates may be established from this process and may be used to staff similar positions in Edmonton, Burlington, Moncton and other cities to be determined, with different linguistic profiles: CBC/CBC imperative, CBC/CBC non-imperative and English essential.

3 In his complaint filed with the Public Service Staffing Tribunal (the Tribunal) on September 22, 2009, the complainant, whose English language skills are BBB, alleges that the department abused its authority by refusing to establish a pool of qualified candidates with a CBC/CBC non-imperative linguistic profile.

Issues

4 The Tribunal must decide the following: Did the respondent abuse its authority by refusing to establish a pool of qualified candidates with a CBC/CBC non-imperative linguistic profile following the 2008 process?

Preliminary issue

5 The complainant did not testify at the hearing, preferring to give his presentation and produce his documents by questioning his two witnesses: Richard Charette and Sheldon Jordan.

6 When he had nearly finished questioning his second witness, the complainant intimated that he believed the respondent had discriminated against him and that he would ask for monetary compensation under the Canadian Human Rights Act. The respondent objected to this unexpected development because the complainant had not made any allegations in that regard or notified the Canadian Human Rights Commission (CHRC), as required under section 78 of the Public Service Employment Act (PSEA), S.C. 2003, c. 22, ss. 12 and 13, and section 20 of the Public Service Staffing Tribunal Regulations (PSST Regulations), SOR/2006-6.

7 Section 23 of the PSST Regulations sets out terms and conditions for amending an allegation or providing a new allegation. The Tribunal may, on request, allow the complainant to amend an allegation or provide a new allegation if the amendment or new allegation results from information obtained that could not reasonably have been obtained before the complainant submitted his allegations.

8 The Tribunal finds that the complainant has not met these requirements. The complainant had never mentioned discrimination, neither when he filed his allegations nor at the pre-hearing conference. Furthermore, he wanted to submit this new allegation when he was almost finished presenting his evidence. The complainant had all the necessary information to formulate the allegation beforehand in a timely manner and to notify the CHRC before the hearing was held. Since he did no such thing, the Tribunal informed the complainant at the hearing that he would not be allowed to file evidence or arguments regarding discrimination. (See Jacobson v. Chairperson of the Immigration and Refugee Board, 2009 PSST 0019, para. 7).

The 2005 process

9 There is a specific background to this complaint, which starts with a different external staffing process conducted in 2005 (the 2005 process) under the former Public Service Employment Act R.S.C., 1985, c. P-33 (former PSEA), to staff the positions of Manager, Enforcement, group and level PM-06, a process in which the complainant had participated as a candidate.

10 During the 2005 process, the candidates took a written exam that assessed various required qualifications for the Manager position. Once the exam was corrected, the assessment board (the board) concluded that the complainant did not possess the required qualifications, and his application was rejected. As a result of the 2005 process, two people were appointed to the Manager positions, which had a BBB/BBB linguistic profile.

11 The complainant disputed the results of the written exam he took during the 2005 process. After a long delay, following many meetings and discussions, his results were modified in late 2007, which then gave him a passing mark for the written exam.

12 In early 2006, Mr. Charette was the acting National Director, Wildlife Enforcement. The Regional Directors reported to him, and he took part in reviewing the complainant’s written exam. Mr. Charette explained that the department wanted to rectify the mistake of not having invited the complainant to the interviews for the 2005 process by giving him a chance to demonstrate his qualifications and skills in the 2008 process.

13 Given the elapsed time since the 2005 process, the department offered the complainant a solution regarding his application. An e-mail dated March 14, 2008, from Aïda Wara, Director, Values, Integrity and Disclosure, explained the situation as follows:

[translation] Mr. Charette has decided to give you an opportunity to go through a selection process for a PM-06 position, Director, Pacific and Yukon Region, sometime in the next few months. You should keep an eye on Publi Service (sic) and submit your application. You will be invited to an interview at the appropriate time and will complete the process.

The 2008 process

14 Mr. Charette confirmed having approved the Job Opportunity Advertisement for the new appointment process held in 2008 (the 2008 process) to staff the position of Regional Director, in Vancouver, British Columbia, with an “English essential” linguistic profile. Under the heading “Other Official Language Information,” the Job Opportunity Advertisement contained the following details:

A pool may be established from this process and may be used to staff, in other regions, similar positions with various different linguistic profiles: CBC/CBC imperative, CBC/CBC non-imperative and English essential.

(Emphasis added.)

15 Mr. Charette stated that he did not intend to imply by this wording that the establishment of a pool would guarantee positions with CBC/CBC non-imperative linguistic profiles. Rather, he anticipated the departure of a few people and wanted the flexibility of being able to staff positions with various linguistic profiles, including possibly that of CBC/CBC non-imperative if he succeeded in obtaining management’s approval.

16 Mr. Charette explained that there were three major developments between the 2005 and 2008 processes. First, the positions in question were reclassified from the PM-06 group and level to GT-08. The language requirements were then increased from BBB/BBB to CBC/CBC for all bilingual management positions in the GT-07 and GT-08 groups and levels. Lastly, the department decided to limit its use of non-imperative appointments for all bilingual positions. Following that decision, non-imperative staffing of bilingual positions was done on an exceptional basis only, with senior management’s approval.

17 The complainant submitted an application for the 2008 process. The board responsible for the 2008 process accepted the modified results of the complainant’s written exam from the 2005 process and proceeded with the interviews and reference checks. All that remained for the candidate to be included in a CBC/CBC imperative pool was to check his level of language proficiency (oral and written comprehension) to ensure that he met all the essential qualifications for the position. Since he was aware of the complainant’s particular situation — that his level of English language proficiency was BBB — Mr. Charette discussed the matter with his immediate supervisor, who confirmed that for the time being, the staffing of all Regional Director (GT-08) positions required a bilingual imperative linguistic profile.

18 Following the department’s decision to require CBC/CBC imperative staffing for all bilingual management positions, the complainant announced in a letter dated September 3, 2009, that he refused to take the language proficiency exam. In that letter, the complainant reviewed the key points of his situation and insisted that the department had an obligation to establish a pool of qualified candidates for CBC/CBC non-imperative positions because of the wording in the Job Opportunity Advertisement for the 2008 process.

[translation] Since I know I do not currently meet the C requirement at the oral level, I will not take the exam you are suggesting. . . .

Please understand that when I read the poster for the process, I carefully checked what was written. The wording is clear: if there is a list, there will be CBC non-imperative positions.

19 On September 4, 2009, the same day the Notice of Consideration announcing that Mr. Wong had been appointed to the position was posted, the department’s Human Resources unit notified the complainant by e-mail:

[translation] I am pleased to notify you that the selection board has deemed you partially qualified and that once we receive the results of your language evaluation, your name could be placed in a pool of fully qualified candidates for CBC bilingual imperative positions. The validity period for the pool ends on September 3, 2010.

The 2010 process

20 Prior to the hearing before the Tribunal, the complainant learned that another staffing process had been launched in June 2010 (the 2010 process) to staff four Regional Director positions, group and level GT-08, in Vancouver, Montréal, Québec City and Halifax. Under the heading “Other Official Language Information,” the Job Opportunity Advertisement contained the following details:

WILDLIFE ENFORCEMENT:
QUEBEC - Bilingual Imperative CBC/CBC
HALIFAX - Bilingual Imperative CBC/CBC

ENVIRONMENT ENFORCEMENT:
MONTREAL - Bilingual Imperative CBC/CBC
VANCOUVER - English Essential

The department’s intention is to staff the above-noted bilingual positions with CBC/CBC profiles on an imperative basis. However, some positions may be staffed on a non-imperative basis. Therefore, we encourage all interested candidates to apply, regardless of their second language evaluation results.

21 Mr. Jordan is currently the National Director, Wildlife Enforcement. He explained that there are two Enforcement Directors in each region: one is responsible for wildlife and the other works in environment. The 2008 process was held to staff wildlife management positions only, while the 2010 process was held to staff both wildlife and environment positions in various regions in Canada. Mr. Jordan explained that according to a departmental directive, only the Deputy Minister can authorize non-imperative staffing for a senior management position; the Assistant Deputy Minister can do so for any other position.

22 According to Mr. Jordan, the complainant did not apply for the 2010 process, which was not yet completed at the time of the hearing and from which no appointment or proposal of appointment had been made.

Public Service Commission’s position

23 The Public Service Commission (PSC) submitted written representations in which it indicated that the complainant was trying to have a mistake in the 2005 process corrected through the 2008 process. The PSC reviewed the concepts of abuse of authority, the relevant policies and the scope of the Tribunal’s corrective measures. It noted that the Tribunal does not have jurisdiction to award the sums of money requested by the complainant because this can only be done in specific cases of discrimination, an allegation that was not raised by the complainant.

Analysis

24 According to the complainant, if his application in the 2005 process had been properly processed, he would have been one of the qualified candidates and would probably have been appointed to a management position which, at the time, required a BBB/BBB linguistic profile. The evidence in the file shows that he took part in the 2008 process to rectify mistakes that had been made in the 2005 process. According to the complainant, the use of the conditional tense for the verb “pourrait” [may] in the wording of the Job Opportunity Advertisement forces the department to not only establish a pool to staff CBC/CBC non-imperative positions, but also to ensure that such positions are available for staffing.

25 Information regarding the 2005 and 2010 processes is included in this decision in order to provide a better understanding of the context of the 2008 process. However, the Tribunal does not have jurisdiction to rule on either of these two processes. The 2005 process was held under the staffing regime set out in the former PSEA; this regime ceased to exist when the current PSEA came into effect on December 31, 2005. As for the 2010 process, it has not been completed, and no appointment or proposal of appointment had been made at the time of the hearing.

26 The complainant filed a complaint under s. 77(1)(a) of the PSEA concerning the appointment of Mr. Wong following the 2008 process. Under s. 77(1)(a), a person may make a complaint that he or she was not appointed or proposed for appointment by reason ofan abuse of authority by the deputy head in the exercise of his or her authority under subsection 30(2).

27 The ultimate goal of any advertised or non-advertised, internal or external appointment process is to identify qualified candidates to staff one or more vacant positions. Under s. 30(2) of the PSEA, an appointment is made on the basis of merit when the person who is appointed meets the essential qualifications for the position, including official language proficiency, and any current or future operational requirements of the organization that may be identified by the deputy head.

28 It is up to the complainant to demonstrate the merit of his complaint. (See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 48-55). In this case, the complainant is not challenging the appointment of the person who was appointed to the position of Regional Director, group and level GT-08, through the 2008 process. The complainant is not claiming that the appointee does not meet the essential qualifications for the position, the official language proficiency (English essential) or any other requirement specified by the deputy head during the 2008 process. Moreover, the complainant did not try to demonstrate that this appointment was not based on merit in compliance with s. 30(2) of the PSEA, nor did he demonstrate that the department abused its authority by not appointing him to this position.

29 However, the complainant claims that the deputy head abused its authority in failing to establish a pool of qualified candidates with a CBC/CBC non-imperative linguistic profile to staff similar positions in other regions. This brings us to the question at issue.

Issue 1:  Did the respondent abuse its authority by refusing to create a pool of                                  qualified candidates with a CBC/CBC non-imperative linguistic profile following the 2008 process?

30 A review of the applicable regulations and policies is required. Under s. 29(3) of the PSEA, the PSC may establish policies respecting the manner of making and revoking appointments and taking corrective action. Section 16 of the PSEA provides that in exercising any of the PSC’s powers, such as the power to make appointments, a deputy head is subject to those policies.

31 The PSC issued a series of appointment policies. The policy entitled Official Languages in the Appointment Process stipulates that deputy heads must respect the Official Languages Act (R.S.C. 1985, c. 31 (4th Supp.)), the PSEA, the Public Service Official Languages Appointment Regulations (SOR/2005-347) and the Treasury Board Directive on the Staffing of Bilingual Positions, which stipulates that bilingual positions are staffed imperatively; in exceptional cases, as specified in the directive, non-imperative appointments may be considered.

32 According to the Treasury Board Directive on the Staffing of Bilingual Positions, non-imperative staffing is exceptional and must be approved by the department’s Assistant Deputy Minister.

33 The Public Service Official Languages Exclusion Approval Order (SI/2005-118) sets out three situations in which, in the case of a non-imperative appointment to a bilingual position, a person who is proficient in only one official language is excluded from the application of meritunder s. 30(2) of the PSEA with respect to proficiency in both official languages. The three exemptions are as follows: when the person submits an agreement to become bilingual, when the person is excluded for medical reasons and when the person is eligible for an immediate annuity.

34 Under the Public Service Official Languages Appointment Regulations (SOR/2005-347), the deputy head must ensure that the person is provided with the language training he or she needs to attain the level of official language proficiency required for the position within the two-year period referred to in the agreement to become bilingual. However, if this person does not meet the level of official language proficiency required for the position during the two-year period referred to in the agreement, the person has to be deployed elsewhere. This regulation also allows for the possibility of extending the period referred to in the agreement under exceptional circumstances.

35 This review shows that the decision to hire on a non-imperative basis is up to the department, not the person who wishes to benefit from such an appointment.

36 The unchallenged testimony of the two witnesses is that the National Director, Wildlife Enforcement preferred having the option of staffing one of the GT-08 Regional Director positions on a non-imperative basis, but this was not approved by senior management.

37 According to the complainant, the use of the conditional tense in the wording, “A pool may be established from this process and may be used to staff, in other regions, similar positions with various different linguistic profiles” (emphasis added) in the Job Opportunity Advertisement applies solely to the decision to establish a pool. According to him, once that decision is made, the department must make available and staff positions with different linguistic profiles, that is, CBC/CBC imperative, CBC/CBC non-imperative and English essential.

38 The Tribunal cannot accept the complainant’s interpretation. Whether or not to establish a pool of qualified candidates is a first decision. Using the results of this process to appoint candidates to specific positions in other regions with different linguistic requirements is a second decision that is completely independent from the first. This interpretation is consistent with the wording of the English version of the Job Opportunity Advertisement, which states the following: “A pool may be established from this process and may be used to staff, in other regions, similar positions . . .” (emphasis added). In any event, the Tribunal is of the view that the wording used in the Job Opportunity Advertisement cannot take precedence over the level of approval required under the circumstances (the Assistant Deputy Minister or equivalent). The approval of non-imperative staffing has to be the result of a conscious decision made in full knowledge by an authorized person. In the absence of such authorization, the National Director, Wildlife Enforcement, was not authorized to staff a bilingual non-imperative position. It follows that the complainant’s argument cannot succeed under the circumstances.

39 That being said, the Tribunal is perplexed by some of the department’s actions. This entire situation stems from an attempt to rectify a mistake that was made while correcting the written exam in the 2005 process. The department encouraged the complainant to take part in the 2008 process, for which the Job Opportunity Advertisement indicated the possibility of establishing a pool of qualified candidates with different linguistic profiles, including CBC/CBC non-imperative. The Tribunal notes that the Directive on the Staffing of Bilingual Positions has been in force since April 1, 2004. Those who made the offer to the complainant were aware of the restrictions set out in this directive, or they should have been. The documentary and oral evidence presented at the hearing demonstrates that the directors involved in this case had not obtained the Assistant Deputy Minister’s approval for non-imperative staffing before posting the Job Opportunity Advertisement for the 2008 process. The Tribunal notes that it would have been preferable to obtain this approval before making such an offer to the complainant and launching this appointment process.

40 Despite these observations regarding the respondent’s actions in this case, the Tribunal nevertheless finds that the respondent did not abuse its authority by refusing to establish a pool of qualified candidates with a CBC/CBC non-imperative linguistic profile following the 2008 process. Given the outcome, there is no need to consider the corrective measures requested by the complainant.

Decision

41 For all these reasons, the complaint is dismissed.

Maurice Gohier
Member

Parties of Record

Tribunal File:

2009-0601

Style of Cause:

Jean Desaulniers v. the Deputy Minister of Environment Canada

Hearing:

November 4, 2010
Chicoutimi, Quebec

Date of Reasons:

June 30, 2011

APPEARANCES:

For the complainant:

Jean Desaulniers

For the respondent:

Pierre Marc Champagne

For the Public
Service Commission:

Marc Séguin (written submissions)