FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Tony Purchase, is alleging that the respondent, the President, Atlantic Canada Opportunities Agency (ACOA), abused its authority by demonstrating personal favouritism in the appointment of Janine Fraser to the position of Executive Director, Atlantic Gateway Secretariat (the Gateway position), at the EX-01 group and level. The respondent denies the allegation.

Background

2 On July 8, 2009, the respondent initiated an internal advertised appointment process to fill the Gateway position. The process was open to all persons employed in the Public Service of Canada and to members of the Regular Force and certain members of the Reserve Force. The closing date for applications was July 22, 2009.

3 The complainant was an applicant in the appointment process. On September 1, 2009, he was informed that he had not met the screening criteria and that his application would receive no further consideration.

4 A Notification of Appointment or Proposal of Appointment for Ms. Fraser was issued on October 27, 2009 and the complainant filed his complaint of abuse of authority with the Public Service Staffing Tribunal (Tribunal) under s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA) on October 30, 2009.

Issue

5 The Tribunal must determine whether the respondent abused its authority by demonstrating personal favouritism towards Ms. Fraser.

Analysis

6 Abuse of authority is not defined in the PSEA, but s. 2(4) provides that “[f]or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.” In Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007, at para. 39, the Tribunal found:

It is noteworthy that the word personal precedes the word favouritism, emphasizing Parliament’s intention that both words be read together, and that it is personal favouritism, not other types of favouritism, that constitutes abuse of authority.

(emphasis in original)

7 In para. 44 of Glasgow, the Tribunal found that personal favouritism could be established by direct evidence or, in some cases, by circumstantial evidence:

Evidence of personal favouritism can be direct, such as facts establishing clearly the close personal relationship between the person selecting and the appointee. However, it will often be a question of circumstantial evidence where some action, comments or events prior to, and during, the appointment process will have to be reviewed. Depending on its source and its particular relation to the issues in a complaint, circumstantial evidence can be as convincing as direct evidence.

8 In this case, the complainant has presented a string of evidence which, he believes, when taken together, leads to a conclusion of personal favouritism in the appointment of Ms. Fraser. He questions why the respondent did not make the appointment from an existing pool of persons qualified for EX level positions. He also questions the need for particular educational qualifications, the English essential qualification, and the use of a specific phrase preceding the Organizational Needs section in the Job Opportunity Advertisement (JOA). He also produced an email recommending that the appointee be sent on a training course in anticipation of her success in the appointment process. The complainant believes that he met the essential qualification of “experience in managing human and financial resources” for which he was screened out of the appointment process. He is of the view that his qualifications are superior to those of the appointee on this qualification. In addition, the complainant alleges that it was common knowledge around the office that the appointee would be successful in the appointment process.

a) The Existing EX Pool and the Job Opportunity Advertisement

9 The complainant questioned whether an appointment process was needed as the respondent had access to an existing pool of qualified candidates for appointment to EX-01 positions. He also raised three concerns with respect to the JOA. These relate to the employment equity, education, and official languages qualifications.

10 At the time of the appointment process, Debbie Windsor was ACOA’s Vice‑President for the Nova Scotia Region, responsible for the Gateway position. Ms. Windsor testified that there was a generic EX-01 pool that she could have drawn from to fill the position. However, she reviewed the Statement of Merit Criteria (SMC) for the pool and concluded that the Gateway position needed different knowledge requirements. In particular, she highlighted two knowledge requirements specific to the Gateway position that were not in the generic SMC: (1) knowledge of federal priorities and frameworks for Strategic Gateways and Trade Corridors and (2) knowledge of current issues, trends and emerging issues related to developing a globally competitive transportation system. The complainant did not challenge the need for these two qualifications.

11 Section 30 of the PSEA provides that an appointment shall be made on the basis of merit and the appointed person must meet the essential qualifications for the work to be performed, as established by the deputy head. As the deputy head, or in this case, its delegate, determined that the above mentioned qualifications were necessary to carry out the work to be performed and the complainant has presented no evidence to the contrary, the Tribunal finds that the respondent’s decision to conduct a separate appointment process was not an abuse of authority.

12 On the JOA for the appointment process, following the section on Essential Qualifications are sections listing Asset Qualifications, Organizational Needs and Conditions of Employment. These latter sections are preceded by the following words: “Applicants must demonstrate on their application that they meet the following criteria.” Furthermore, the Organizational Needs section states: “Belong to one of the following designated groups: women, visible minorities, persons with disabilities or Aboriginals. Only candidates identifying themselves as members of a designated group may be considered for this organizational need.” The complainant understood that applicants had to demonstrate in their application that they met the asset qualifications, and had to be a member of one of the specified designated groups in order to be considered for positions. He submits that by indicating that only members of the designated groups could be considered, the respondent intended to reduce the number of people who would be eligible to apply.

13 On July 9, 2009, one day after the JOA was posted, the complainant communicated by email with Nancy Ives, ACOA’s Director, Corporate Services. He expressed his concerns about a number of elements in the JOA, including organizational needs. Ms. Ives replied on July 10, 2009 that the SMC reflected the work description for the position and that the organizational needs were not intended to limit the area of selection to those in employment equity groups, but to provide managers with the option to use that clause to recruit or select a member of an employment equity group based on ACOA’s current or future organizational needs. Based on this information the complainant, who is not in a designated group, applied for the position.

14 The complainant also sent an email to Charlene Sullivan, the Director General of Human Resources, on July 10, 2009 expressing his concerns about the appointment process. Ms. Sullivan replied on July 13, 2009, noting that ACOA had specific gaps in certain groups, the EX being one of them, as it was under-represented in all four designated employment equity groups. She agreed that the wording may have been confusing and offered an explanation of the intent of the organizational needs section:

…In reviewing the poster, however, the wording was confusing in that it might seem to imply that only applicants who are members of the 4 groups can apply. The intent is that candidates who wish to be considered as member (sic) of Employment Equity groups must self identify, in the event that the asset criteria is used in selection…

(emphasis in original)

15 In her testimony, Ms. Windsor said that the organizational needs in the SMC were optional. Referring to ACOA’s EE Action Plan, Progress Report, December 2008, she stated that it had been the practice to include organizational requirements for employment equity in all job advertisements in Nova Scotia. She explained that persons cannot be considered to meet these organizational needs unless they self-identify. However, it was up to each manager to determine whether to use organizational needs in making an appointment decision.

16 According to Ms. Windsor, there were 30 applicants for the position. Twenty-one were screened out and nine were interviewed. An interview board of four persons, including Ms. Windsor, conducted the interviews. Three persons were found qualified, including Ms. Fraser. The board determined that Ms. Fraser was the right fit for the position. She said that the organizational needs criteria were not used in arriving at an appointment decision, as the three candidates who were found qualified were all women.

17 The Public Service Commission was not present at the hearing but provided written submissions. It stated that according to its Guidance Series – Integrating Employment Equity in the Appointment Process, deputy heads have the option of establishing employment equity objectives as a merit criterion, which provides flexibility. It further explained that if there are current or anticipated representation gaps in the organization, increasing representation of employment equity groups could be a current or future need of the organization.

18 The respondent submitted a document entitled ACOA’s Staffing Strategy 2010‑2011, which states that there are challenges for the recruitment of employment equity group members. The Tribunal notes that this document is for a staffing strategy for 2010-2011, which is not related to the 2009 appointment process in this complaint. However, combined with ACOA’s EE Action Plan, Progress Report, December 2008, it demonstrates that there were gaps to fill with respect to employment equity at ACOA. If they existed in 2008 and were projected to continue to exist in 2010-2011, it can be inferred that they existed in 2009 at the time the JOA for the Gateway position was published.

19 As stated in the area of selection, the appointment process was open to persons in the public service and members of the Regular Force and members of certain Reserve Forces. It was established by the respondent that employment equity was a concern, which is the reason why the organizational needs criterion was included. The Tribunal notes that Ms. Sullivan acknowledged that the wording used in the JOA was confusing and that it seemed to imply that the appointment process was only open to persons in the four designated groups. However, since the complainant sought clarification and was informed in a timely manner that the appointment process was open to everyone, he was not disadvantaged because he applied for the position. The fact that the respondent did not issue a revised JOA to clarify the issue does not constitute a serious error in the present matter. In the end, 30 people applied for the position.

20 With respect to the education qualification, the complainant alleges that the inclusion of sociology and social policy in the asset qualifications is evidence that the JOA was tailored to the appointee. He submitted four JOA for EX-01 positions, two in the Department of Western Economic Diversification, one in the Department of Industry and one for a Corporate Secretary at ACOA. He noted that all of the positions required university degrees in the fields of business, economics, political science or, in some cases, related fields. He noted that none of the advertisements specifically mentioned sociology or social policy. He submits that this is a “hard-nosed business position” and the inclusion of sociology and social policy was intended to qualify the appointee for the position, since she possesses a Master’s degree in Social Work.

21 In her email of July 10, 2009, Ms. Ives explained that the educational requirements were consistent with what ACOA sought in the recent generic EX-01 appointment process. Ms. Sullivan confirmed this in her email of July 13, 2009.

22 In its oral argument, the respondent noted that it is a university degree that is the essential qualification for the position, which both the complainant and the appointee possess. The JOA listed eight other degrees in addition to sociology and social policy under the asset qualifications. Therefore, the appointee did not require a degree in sociology or social policy in order to be considered in the appointment process.

23 The Tribunal notes that the evidence provided in Ms. Ives’ email of July 10, 2009, and Ms. Sullivan’s email of July 13, 2009, is that the earlier generic EX-01 appointment process in ACOA also provided for sociology and social policy as educational asset qualifications. This was not refuted by the complainant. Pursuant to s. 30(2) of the PSEA, managers have broad discretion to establish the qualifications for the position they want to staff. The Tribunal finds that the complainant has not demonstrated that the inclusion of sociology and social policy in the asset qualifications was done for the purpose of favouring the appointee. The only essential educational qualification was that candidates possess a university degree.

24 The complainant’s third concern with the JOA relates to the English essential qualification. He alleges that the English essential designation was used to accommodate the appointee who is unilingual English. He also notes that the appointee has been sent on language training since her appointment. He submits that if the position had initially been established as bilingual, then it would not have been necessary to send the appointee on language training resulting, in his opinion, in a temporary loss of productivity in the Gateway position. According to the complainant, this constitutes further circumstantial evidence that the qualifications were tailored to the appointee.

25 In her email of July 13, 2009, Ms. Sullivan noted that the decision on the language requirement followed the specific criteria in the Treasury Board’s Directive on Linguistic Identification of Positions or Functions. The complainant acknowledges that the respondent had not violated any policies when it established the language proficiency for the position. In particular, he concedes that under the Treasury Board’s Policy on Official Languages for Human Resources Management, the respondent had the right to make the Executive Director position English essential. However, he testified that ACOA is concerned with the economic development of the four Atlantic Provinces, including bilingual New Brunswick. Also, the Guide to ACOA’s Programs and Services provides that ACOA’s goals include enhancing the vitality of French-language minority communities in Atlantic Canada.

26 Ms. Windsor explained that she developed the SMC and the staffing strategy for the Gateway position in consultation with ACOA’s head office. She testified that because they were located in Nova Scotia, she did not give the language qualifications much thought. She said that in the Gateway function, even in areas crossing federal and provincial boundaries, there is no requirement to speak French. If she had given the subject more thought, she indicated that she might have designated the position bilingual non-imperative.

27 In considering the evidence on this issue, the Tribunal notes that there is no dispute that the respondent had the right to establish the position as English essential. Even if the position had been established as bilingual non-imperative, there is no evidence that the appointee would not have been eligible to apply. Based on the evidence, the Tribunal does not find that the Gateway position was established as English essential for the purpose of favouring the appointee.

28 Based on its analysis of the evidence regarding the existing EX-01 pool and each of the issues identified by the complainant with respect to the JOA, the Tribunal finds that the complainant has not demonstrated that the respondent personally favoured the appointee or ortherwise abused its authority.

b) The assessment of the essential qualification “experience in managing human and financial resources”

29 The complainant testified that he was eliminated from the appointment process because he failed to obtain a passing mark on the essential qualification “experience in managing human and financial resources”. The complainant alleges that he has superior qualifications to the appointee on this criterion.

30 On August 31, 2009, the complainant received an email from ACOA’s Director of Staffing, HR Planning and Employment Equity, stating that she did not see any mention of managing human and financial resources in his curriculum vitae. She asked him to provide additional information. Regarding human resources, he was asked to specify jobs in which he had managed staff, how many staff he had managed and how long he had managed them. With respect to financial management, he was asked to specify the amount of any budgets he had managed and whether he was directly responsible for such budgets. The complainant provided his response later that day:

With Dome Petroleum, I had researchers and university term students report to me – 1 each at any given time. With Abitibi, I had a couple of internal sales people for which I was responsible. With COGLA (Canada Oil and Gas lands (sic) Administration), I had an IB (Industrial Benefits) person report to me, as well as a support staff person. Last year, with Democracy 250, I was the second-in-command and had the responsibility for a staff which comes with that, including the accounting function staff person, who by the way is presently being considered for a position with ACOA, Halifax. Democracy 250 operated with a budget approximating $10 Million and, while ultimately accountable to a Management Committee (from the legislature) and disbursed through the Speaker’s Office, I was accountable for much of the day-to-day administration and to coordinating with / reporting to Management Committee and the Speaker’s Office.

31 At an informal discussion with Ms. Windsor, the complainant was informed that he was screened out because he failed to meet the essential qualification “experience in managing human and financial resources”. He said that Ms. Windsor told him that they were looking for a minimum of two to three years human resource management experience. He notes that the two to three-year requirement was not in the JOA. He also contends that he has more than three years of human resource management experience. Furthermore, he testified that the appointee was found to meet this qualification even though she had only one year of experience managing three people and a budget of $500,000, and this experience took place ten years ago. He concludes that the assessment of the appointee was more lenient than his own assessment.

32 Ms. Windsor referred to a guide entitled Statement of Merit to be Assessed through Experience, Executive Director, Atlantic Gateway Secretariat, which the assessment board used to assess the qualification at issue. The guide states:

Experience in managing human and financial resources.

(generally looking for experience managing a unit. One year would suffice but where the management is of one person, students, looking for two years. The management relationship should be direct. This includes allocation of work, everyday direction, reporting on performance. In terms of the Budget, needs to have one year or more experience as a responsibility Centre manager, responsible and accountable for the Budget, not simply overseeing/monitoring /forcasting (sic) the budget.)

(Emphasis in original)

33 Ms. Windsor testified that the board was looking for someone with the knowledge and experience to enter the position at the executive level, and who was comfortable managing a budget and a team. She said that the information provided by the complainant fell short of what they were looking for. She testified that the complainant had generally supervised one person at a time and they preferred someone who had to deal with the complexity of supervising a unit. If a candidate had supervised only one person, especially students, then she wanted that supervision to have continued for a longer period of time. That was the basis for the two to three years of supervision that she referred to at the informal discussion. Furthermore, he did not provide the budget amount for which he was personally responsible at Democracy 250. The budget amount he provided was for the whole organization. The assessment board was looking for someone who was accountable for a budget. The assessment board members understood that the complainant administered the budget but accountability was elsewhere.

34 Ms. Windsor testified that in January 2010, after the complaint was filed, and for her own “peace of mind,” she contacted the person who supervised the complainant at Democracy 250. The supervisor said that he himself was personally accountable for the budget and that the complainant monitored the budget. She said this confirmed that her assessment of the complainant’s budget responsibility had been correct.

35 On this last point, the Tribunal cautions that if doubts are present at the time of the assessment of a complainant’s curriculum vitae, verification should be done at the time, not after a complaint is filed. Respondents have to make sure that they base their decisions on adequate material and information. Accordingly, in the circumstances of this case, the Tribunal will not give any weight to the information obtained after the filing of the complaint.

36 In this particular case, Ms. Windsor did not seem to have doubts at the time the assessment of the complainant’s curriculum vitae was made, but only after the complaint was filed. Since the verification in this case simply confirmed what was previously understood, the complainant was not disadvantaged by the respondent’s search for additional information after the complaint was filed. The result remained the same.

37 Ms. Windsor testified that, unlike the complainant, the appointee had managed a group of people. She had also managed a budget. The assessment board was satisfied that she met the essential experience qualification.

38 The Tribunal has confirmed in numerous decisions that it is the candidates’ responsibility to clearly demonstrate on their applications that they meet all the essential qualifications. The JOA in the present case clearly cautioned candidates that failure to do so may result in the rejection of their application (see, for example, Edwards v. Deputy Minister of Indian and Northern Affairs Canada, 2011 PSST 0010). The respondent, however, went beyond what was required by providing the complainant with an opportunity to elaborate on his human resources and financial experience. This is not the type of action one would expect if the respondent was determined to reduce the number of candidates to improve the appointee’s chances.

39 The testimony of Ms. Windsor indicates that based on the complainant’s initial application and his supplementary information, he did not demonstrate to the assessment board’s satisfaction that he managed a group of people or an individual for an extended period of time. Nor did he clearly demonstrate that he was responsible for the management of a budget.

40 With regard to his claim that the appointee’s experience in managing human and financial resources was ten years old, the Tribunal notes that there were no set time limits in the assessment material. The Tribunal also notes that, according to his curriculum vitae, the complainant’s management experience at COGLA dates back to 1984-1988 and his experience at Abitibi and Dome Petroleum is prior to 1984.

41 The Tribunal finds that the complainant has not demonstrated personal favouritism in the assessment of the appointee’s qualifications. Nor has he established that the appointee does not meet the requirement to manage human and financial resources.

c) Was the appointment process predetermined?

42 On September 3, 2009, Jeffrey Friesen, Acting Director General, Policy, Advocacy and Coordination Branch received an email from Human Resources. The email informed Mr. Friesen that he should attend a course entitled G215 Managing Human Performance. This course was mandatory for all supervisors, managers and executives up to the EX-02 level. Mr. Friesen replied on September 4, 2009 indicating that he would attend. He also suggested that Ms. Fraser be invited to the same course:

I also ask that you extend an invitation to Janine Fraser. She is a Senior Policy Analyst (EC-07) in our Branch who effectively manages the working unit around the Atlantic Gateway initiative currently situated within our Policy and Research Unit. Although, Janine technically doesn’t require this course today, it is our expectation that she will be formally managing staff within ACOA (NS) for the indeterminate future.

43 The complainant notes that at the time of these emails, Ms. Fraser had not yet been interviewed for the Gateway position. He submits that this correspondence confirms that the outcome of the appointment process had been predetermined and that Ms. Fraser needed training because she did not have the skills necessary for the position. He argues that it also confirms a lack of fairness and transparency in the appointment process.

44 Ms. Windsor testified that she was surprised to see the correspondence concerning the course. She indicated that Ms. Fraser had already taken the course in 2008, almost a year earlier than the Gateway appointment process. Ms. Windsor identified a list entitled “Toutes les inscriptions de l’offre”, which showed that Ms. Fraser had taken the G215 Managing Human Performance course on October 22-24, 2008. She stated that she asked herself if Mr. Friesen recommended her “because he thought she was a strong candidate or a shoo-in for the position.” She also indicated that Mr. Friesen’s substantive position was the same as Ms. Fraser’s and that he was also a candidate in the appointment process for the Gateway position. As a candidate, she said that he had no influence over the outcome of the process.

45 Whether or not Ms. Fraser had taken the course is not relevant to the issue at hand. It is unlikely that Mr. Friesen would have recommended she take the course if he already knew that she had done so. The complainant submitted the email in support of his contention that the outcome of the appointment process had been predetermined. Ms. Windsor did express surprise at this evidence in her testimony, but this does not constitute an adequate response to the evidence. Given the nature of the complaint, it would have been appropriate for the respondent to offer a response to this evidence. Both the respondent and the complainant could have called Mr. Friesen to explain what he meant, but they did not do so.

46 The absence of testimony from Mr. Friesen means that both parties are engaging in speculation, which is not helpful to the Tribunal. In this case, Mr. Friesen’s email does not link his statement to the Gateway position or any specific time frame. In addition, Mr. Friesen was also a candidate in the appointment process, and there is no evidence to suggest that he had any influence on who would be appointed to the position.  The Tribunal finds that the email is not sufficient to establish personal favouritism in the present case.

47 The complainant also submitted three emails he wrote in which he alleged that there was a commonly held view in the office that the outcome of the appointment process had been predetermined. The Tribunal does not know who or how many other staff shared the complainant’s view. He did not call any witnesses or provide sufficient evidence to corroborate these statements. Consequently, the Tribunal finds that there is insufficient evidence to support his allegation that staff at large believed the appointment process was predetermined.

d) Based on the evidence as a whole, was there personal favouritism?

48 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at para. 55, the Tribunal found that the burden of proof in a complaint before the Tribunal rests with the complainant.

49 The complainant refers to the Tribunal’s decisions Ayotte v. Deputy Minister of National Defence, 2009 PSST 0021, and Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 0007, in support of his position. Findings of personal favouritism were made in both of those cases. The Tribunal notes that the complainants in Ayotte and Beyak presented sufficient evidence to substantiate their allegations of personal favouritism. Testimony from key witnesses also corroborated the complainants’ allegations. Essentially, the respondents were not able to refute the complainants’ allegations. The evidence identified the persons responsible for the personal favouritism, what motivated them to act in such a way and the steps they took to influence the outcome of the appointment process. 

50 In the present case, the complainant has not identified a specific person or persons responsible for the alleged personal favouritism towards the appointee. The complainant did not demonstrate the steps taken to favour Ms. Fraser by ensuring that she was appointed or any motivation to favour Ms. Fraser’s appointment.

51 The Tribunal has reviewed the evidence as a whole and finds that even if it is taken together, it fails to establish personal favouritism or any other type of abuse of authority. The respondent has provided reasonable explanations to all of the complainant’s allegations. It explained that it determined the language requirement in accordance with the Treasury Board’s policy. It also explained that it did not use the generic EX-01 pool because it was of the view that other knowledge requirements were necessary for the Gateway position. As for the essential qualification of “experience in managing human and financial resources”, the respondent gave the complainant a chance to provide additional information on the issue before determining whether or not he met the requirement. In addition, the respondent had established a guide in which it was determined how the requirement was to be assessed. The fact that the respondent offered the complainant the opportunity to provide additional information, demonstrates that the respondent was fair and transparent in the process.

52 With respect to the process being predetermined, the complainant did not provide sufficient evidence to corroborate his allegation. The respondent explained that Mr. Friesen was at the same substantive level as the appointee and was a candidate in the same appointment process. He therefore did not have any influence on the outcome of the process.

53 As for the issue of organizational needs, the respondent did establish that such a criterion is usually included on JOA in Nova Scotia given the gaps in employment equity. The wording of the phrase “Applicants must demonstrate…” and the paragraph in the organizational needs section read together may have caused confusion for the complainant, however he did seek clarification and the respondent provided him with a timely explanation of how the organizational needs were to be applied. This led him to apply. In addition, the appointment process was open to persons in the public service and members of the Regular Force and some Reserve Forces, which led to 30 applications. Consequently, the complainant did not establish that the merit criterion was chosen simply to favour the appointee. Moreover, Ms. Windsor testified that it was not necessary to use the employment equity criteria in making the appointment decision since three women were found to be qualified.

54 In examining the evidence individually and as a whole, the Tribunal finds that the complainant has not provided sufficient evidence to support his allegation of personal favouritism.

Decision

55 For all these reasons, the complaint is dismissed.

Kenneth J. Gibson
Member

Parties of Record

Tribunal File:

2009-0678

Style of Cause:

Tony Purchase and the President of the Atlantic Canada Opportunities Agency

Hearing:

January 18 and 19, 2011
Halifax, Nova Scotia

Date of Reasons:

May 11, 2011

APPEARANCES:

For the complainant:

Jon Pierce

For the respondent:

Karl Chemsi

For the Public
Service Commission:

John Unrau (by written submissions)