FPSLREB Decisions

Reasons for Decision

Introduction

1 Sylvie Vaudrin, Ann Phillips, Richard Plaisance and Serge Elie (the complainants) allege that the respondent, the Deputy Minister of Human Resources and Skills Development Canada (HRSDC), abused its authority in the application of merit and in the choice of appointment process in eight non-advertised appointment processes to staff positions in the Computer Systems (CS) group at levels 02 and 03.

2 More specifically, the complainants allege that the respondent abused its authority by choosing to staff the positions using non-advertised processes. They also maintain that the respondent did not comply with the merit principle because it did not assess their qualifications. They also argue that the choice of a non-advertised process is not consistent with Public Service Commission (PSC) policies; some of the appointees were not adequately assessed; and there was personal favouritism towards one of the appointees and an apparent conflict of interest on the part of this person's supervisor.

3 The respondent denies having abused its authority. It staffed the positions following a reorganization, which resulted in the creation of new positions. It appointed these eight candidates to these positions using a non-advertised process because they were already performing the duties of the positions. It did not assess the complainants' qualifications because these were non-advertised processes. The respondent argued that it complied with PSC policies in its choice of process. In its view, all the appointees were properly assessed. The respondent denies having demonstrated favouritism towards anyone or that it was in a situation of an apparent conflict of interest.

4 The PSC did not attend the hearing but submitted written arguments prior to the hearing. The PSC's arguments are general in nature. The PSC did not take a position on the facts of these complaints. Instead, it explained its interpretation of the concept of abuse of authority and its staffing policies. In terms of the choice of appointment process, the PSC indicated that the PSC policy, Choice of Appointment Process, requires that the choice of process be consistent with the staffing values set out in the Public Service Commission Appointment Policy and that it be consistent with the organization's human resources plan.

Background

5 The Innovation, Information and Technology Branch (IITB) provides information and technology services to HRSDC.

6 The respondent created 38 new positions following a reorganization of IITB structures and the work of its employees. It staffed these positions using non-advertised appointment processes. Eight of the appointments are the subject of these complaints.

7 The respondent offered appointments and deployments to people who were already performing the duties of the positions to be staffed. The respondent used non-advertised appointments when the new position was at a higher classification level than the position held by the appointee prior to the appointment. The respondent used deployments when the new positions were classified at the same level.

8 Between March and June 2009, the respondent appointed the following eight individuals using non-advertised appointment processes. The following individuals were appointed to the position of Telecommunications Infrastructure Analyst at the CS-02 group and level:

• Marc Ducharme (appointment process 2009-CDS-INA-NHQ-IITB-11757)
• Lynda Kolli (appointment process 2009-CDS-INA-NHQ-IITB-11758)
• Dale Henning (appointment process 2009-CDS-INA-NHQ-IITB-19931)
• William Goring (appointment process 2009-CDS-INA-NHQ-IITB-11929)
• Jacques Beaudry (appointment process 2009-CDS-INA-NHQ-IITB-13370)
• Nancy Chouinard (appointment process 2009-CDS-INA-NHQ-IITB-11756)

The following individuals were appointed to the position of Team Leader of the Voice Infrastructure Services at the CS-03 group and level:

• Claire Laflamme (appointment process 2009-CDS-INA-NHQ-IITB-12339)
• Heather McClelland (who was called Heather O'Brien at the time - appointment process 2009-CDS-INA-NHQ-IITB-11646)

9 From April 15 to May 16, 2009, the complainants filed 30 complaints of abuse of authority (each complainant filed several complaints) in relation to these appointments with the Public Service Staffing Tribunal (the Tribunal) pursuant to ss. 77(1)(a) and (b) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

10 The complainants held positions at the AS-02 and AS-03 group and levels. Since their work had also changed, new positions were created for them. Their positions were classified at the same group and level as the positions they held prior to the audit. The respondent therefore offered them deployments to these new positions.

11 The 30 complaints were consolidated for the purpose of these proceedings pursuant to section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6.

Issues

12 The Tribunal must decide the following:

1. Did the respondent abuse its authority by staffing the positions using non-advertised processes?
2. Did the respondent correctly assess the appointees?
3. Did the respondent show personal favouritism or an apparent conflict of interest?

Summary of relevant evidence

Audit of work descriptions and creation of new positions

13 Johanne Roberge is the Director, Talent Development, at IITB. She explained in her testimony that, in 2003, following a consolidation of departmental services and a redistribution of duties, employees from other branches, including the complainants, joined IITB. As a result of this reorganization, several employees, including employees from the Administrative Services Group (AS), considered that their work description did not reflect their actual duties. Their work had changed greatly since their position was created and since their work description was last updated. The vertical relationships had also evolved with time. In 2006, the respondent therefore conducted an audit of the work descriptions of 38 employees. Ms. Roberge was in charge of this project.

14 Joseph Horan, an independent classification expert, conducted this audit. He conducted interviews across Canada, except for Quebec, because he is unilingual English. Chantal Wolfe conducted the interviews in Quebec because she speaks French. These two individuals noted during the audit that, in most cases, the employees' work descriptions were no longer reflecting their current work. The respondent therefore had new work descriptions written. These work descriptions were submitted to an independent classification committee. In most cases, the committee recommended the creation of new positions.

15 Ms. Roberge stated that the respondent updated the employees and unions throughout the audit and classification processes. For example, the respondent met with employees and the unions on December 11, 2007, as the slide presentation for this information session shows. The respondent had also held an information session the previous month. Another information session for employees was held on November 17, 2008, in order to give them a follow-up on the situation. The slide presentation for this session shows that the respondent was already informing employees that it was planning to staff new positions using non-advertised processes. The respondent held another information session in December of that same year.

16 The complainants asked Jacques Lambert to testify about the reorganization. Mr. Lambert had worked in the public service for 41 years until he retired in January 2009. Mr. Lambert is a union representative. Since 1974, he has held a number of positions in his union, including the position of national vice-president.

17 Mr. Lambert was involved in the reorganization of HRSDC's structures between 2005 and 2008. He explained that the respondent created a union-management table whose mandate was to modernize HRSDC's structures so that it would become a world-class organization. The CS reorganization was carried out in a very professional manner and the respondent kept affected employees informed throughout the entire process. However, this was not the case for the AS group positions, which include the complainants. In addition, the respondent did not consult them and did not respond to their requests for information.

18 Gilles Coursol is also a union representative. He has held a number of union positions throughout his career, including the position of president for his union's chapter, which he currently holds. He has been working in the public service since 1975. Mr. Coursol was also involved in the union-management table that was tasked with the reorganization. He also testified as to the respondent's lack of communication during the classification process. The complainants had to file grievances in order to obtain the information requested.

19 Mr. Plaisance, Mr. Elie, Ms. Vaudrin, and Ms. Phillips all testified as to the lack of communication during the classification process for the positions and their disappointment in finding that their positions remained at the same classification group and level.

The complainants' work and qualifications

20 All the complainants testified to describe their work and their qualifications.

21 Mr. Plaisance has been working in the public service since 1973. He joined HRSDC in 2000 and held the position of AS-03 within this department until he retired. In this position, he conducted analyses as required, researched costs, carried out billing, monitored the implementation of the telephone systems, looked after the relocation of the telephone systems, carried out the deployment of staff and support personnel, and was involved in decisions regarding the selection of technology for projects.

22 Mr. Plaisance explained that, in Quebec, the five or six employees who worked in the telephony unit, including the complainants, provided service to more than 75 offices and 4,000 employees. They performed a broader range of duties than employees in other parts of Canada. Elsewhere in the country, employees passed on the orders to Bell Canada for the Centrex system (a telephony system). The Quebec employees also performed these duties, but they were the only ones who managed and carried out maintenance on the telephony systems. They managed more than 75 systems on a daily basis. This involved doing the programming, modifying user telephone orders, and analyzing the efficiency and costs of these systems. The operational costs for Quebec were the lowest in the country.

23 Ms. Phillips testified. She has 14 years' experience in telecommunications, which she acquired mostly in the private sector where she worked in telecommunications systems support and sales. She worked with PBX, Norstar, and Centrex (the latter is the technology used by the respondent). She participated in a training provided by Nortel. She has been working for Service Canada since 2007 as a communications technology specialist at the AS-03 group and level. In July 2010, she accepted a secondment to another department. She stated that, while she was in her substantive position, she provided services to employees from other parts of Canada, especially employees in the West and in the Maritimes.

24 Mr. Elie also testified. He completed two years of post-secondary education and took a number of computer science courses to stay up to date. Mr. Elie has been working in the public service for 30 years. He mainly works in telephony. He has been involved in various large transformational projects within his department, such as the implementation of videoconferencing. According to him, the work is more complex in Quebec because, since services were centralized in the province in 2006, Quebec employees have had to learn a number of telephony systems, including Centrex, BCN, and Norstar. The other regions did not have to learn these systems. Quebec employees were able to start a project and carry it out to its implementation, whereas employees of other regions generally could not do so. Mr. Elie provided services to employees in other regions of the country on a number of occasions. In spite of his skills and training, his position was classified at the AS-03 group and level.

25 Ms. Vaudrin has been working in the public service for 30 years. She has held a number of positions in various directorates within HRSDC. From April 2007 to 2009 and from January 2010 to date, she has held the position of communications technology specialist at the AS-03 group and level. She knows the telecommunications cabling systems, VoIP technology, the BCN system, the Meridian system, programming for the PBX system, the components of these systems, and their architecture. She can do the cabling, equip the devices, determine the programming that needs to be installed on the devices, and even install receptacles. She can do the programming and write code for the PBX system, which is the most complex system on the market. Only Bell Canada experts and Quebec employees have this expertise. In the other regions, employees use Centrex, but it is Bell Canada that manages the telephony system. Colleagues from other regions simply pass on the orders to Bell.

26 Ms. Vaudrin argued that she has the skills for a CS-02 position because her supervisor had recommended in her 2010 performance report that she obtain an acting appointment at the CS-02 group and level for a year in 2010. The request was denied. Ms. Vaudrin also applied for a position in an advertised appointment process at the CS-02 group and level. She was successful in the screening phase. The process has not been completed. Therefore, she does have the experience required for the positions that are the subject of these complaints.

The choice of process and the candidates' assessment

27 Nicole Gratton is the Director, National Voice and Data Systems, IITB. She explained that she decided to use non-advertised appointments to staff these positions so as to avoid leaving the employees who were already performing the duties of the new positions without employment. In fact, the eight appointees had already been performing the duties of the positions prior to their appointment and, in some cases, had been doing so for a number of years. This is why the appointments became effective retroactively. As indicated in the written justification for choosing a non-advertised process, this choice allowed employees who already held these positions to remain in these positions. If the respondent had chosen to staff these positions using an advertised appointment process, candidates from other branches of HRSDC might have been selected and the individuals who were performing the duties of the positions might have found themselves without employment.

28 Ms. Gratton stated that the respondent has adopted a policy on the choice of a process to staff positions. The Policy on Criteria Applicable to Non-Advertised Appointment Process (the respondent's policy) can be found on the respondent's intranet site. Section 6.3 of the policy states that managers are required to submit a written justification for choosing a non-advertised process with the staffing request and this justification must show how the choice of this process is consistent with established criteria and staffing values. Ms. Gratton said that this requirement was met and the respondent filed in evidence the written justification for each appointment. She was the person who had signed them.

29 Ms. Gratton wrote the statement of merit criteria in consultation with Shaun Gagné, Manager of National Telecommunications Management. This statement of merit criteria was reviewed by Human Resources services. The respondent used these merit criteria to assess the candidates.

30 The respondent asked Ms. McClelland to testify. She has been working in the public service since 1998. Since July 2009, she has been a manager for the National Telecommunications Service; this position is at the CS-04 group and level. Before this, she was a team leader at the CS-03 level. Ms. McClelland assessed Mr. Beaudry, Mr. Ducharme, and Ms. Kolli. To carry out the assessment, she used their résumés and her knowledge of their work performance. She was aware of their work because she was their supervisor. The employees were not involved in their own assessment. In reply to a question from the complainants' representative, Ms. McClelland stated that there were similarities between the assessments of Mr. Ducharme and Mr. Beaudry because they both did the same work. Mr. Ducharme replaced Mr. Beaudry when Mr. Beaudry retired.

31 The complainants asked Ms. Chouinard to testify. She is one of the appointees. She has been working in telecommunications for 18 years. She has been working at HRSDC since 2000 as a communication systems infrastructure analyst. Her position is the highest level from a technical perspective for the Quebec region, and, since 2006, it has also been the highest level for all of Canada. She is the only person in the country with Nortel Network certifications, which she needs in order to carry out her work.

32 Her position, which was classified AS-04, became CS-02. She was expecting that her position would be classified at a higher level. When she heard the news, she was very disappointed, given her experience and training. She was frustrated and bitter.

33 According to Ms. Chouinard, two of the appointees, Mr. Goring and Mr. Henning, did not have the technical skills required to do the work. She added that, instead, they were used to filling out forms and passing the orders on to the local supplier. She observed that Mr. Goring did not have the desired skills when the respondent asked her to supervise him during the installation of a telephony system in Kamloops. As for Mr. Henning, she observed that he did not have the skills required when she went to Nanaimo, at the request of her supervisor, to oversee the implementation of a telephony system. Mr. Henning was not able to make the system work. She had to spend seven days in Nanaimo in order to get the system up and running.

34 Ms. Chouinard was assessed by Stéphane Ménard, Head of Strategic Telecommunications, Business Planning. Mr. Ménard sent her a document that she had to fill out in order to justify her appointment to the position. Ms. Chouinard refused to do so. She did not see why she had to justify herself for a position that she had held for a number of years and in which she was competent. Instead of filling out the document, she sent Mr. Ménard a list of her skills and duties. She included her résumé. Mr. Ménard filled out the required document on her behalf, based on the documents she sent him. Ms. Chouinard reviewed the document filled out by Mr. Ménard and signed it to confirm that the document was correct.

35 In reply to a question from the complainants' representative, Ms. Chouinard stated that Mr. Ménard "was not in a position to assess her" [translation] because he did not know the work that she was doing. Ms. Chouinard's assessment of Mr. Ménard's skills is based on the seven months that she worked with him. She explained that when Mr. Ménard's supervisor left, Mr. Ménard replaced the supervisor on an acting basis. Mr. Ménard and Ms. Chouinard shared the supervisor's tasks. Mr. Ménard was in charge of managing employees and Ms. Chouinard was in charge of managing the work. Mr. Ménard received technical information from Ms. Chouinard. Mr. Ménard made the final decisions in agreement with Ms. Chouinard, but she had the last word in terms of issues of a technical nature.

36 Ms. Gratton was a member of the assessment board as well. According to Ms. Chouinard, Ms. Gratton did not have sufficient knowledge to be able to assess her because Ms. Gratton did not know what she did on a daily basis.

37 Ms. Gratton also testified. She explained that the respondent posted the Notification of Consideration and the Notification of Appointment or Proposal of Appointment on Publiservice for all the appointments that were made following the review of the work descriptions, including the appointments at issue.

Personal favouritism and apparent conflict of interest

38 Ms. Vaudrin stated in her testimony that the supervisor of one of the appointees, who carried out this person's assessment for the appointment process, showed personal favouritism towards this person. Ms. Vaudrin added that, during a work conference in Halifax in 2008, two of her colleagues told her that one of the successful candidates had a "personal relationship" [translation] with the supervisor, that it was a "relationship of convenience" [translation], and that they were "a couple" [translation]. The two colleagues told her that everyone at the national level was aware of this relationship, including Ms. Gratton. Ms. Vaudrin added that everyone in Halifax made comments in this respect. They said that the appointee was always present when the supervisor was at a meeting, even though she did not have to participate in the meeting; she was absent when he was absent; she followed her supervisor almost all the time; and they ate their meals together.

39 The respondent asked the Tribunal to note that it could not ask the supervisor in question to testify because it only just learned that the complainants were going to raise this allegation at the hearing.

40 The Tribunal will not name this supervisor because Ms. Vaudrin's testimony may negatively affect him and he is not able to defend himself against the allegation, since he was not asked to testify and since he did not know that the complainants would present this allegation, given that the complainants raised this allegation for the first time at the hearing. In addition, this testimony is of a delicate nature and it is not necessary to name this individual in order to review the allegation. The Tribunal will also not name the appointee because Ms. Vaudrin's testimony may also have a negative effect on her. In addition, the Tribunal determined, as is indicated later on, that this allegation has not been substantiated. The Tribunal will refer to this person as the "appointee" [translation].

41 The respondent's representative objected to this testimony because the complainants did not indicate prior to the hearing that they were going to make an allegation of personal favouritism and, as a result, the respondent could not present a defence. The complainants' representative indicated that he learned of this new fact approximately one month prior to the hearing. The Tribunal decided to allow this new allegation because it is serious and because it is important that the parties be able to submit all evidence that may support their allegations. However, in order to allow the respondent to present a full defence against this new allegation, the Tribunal asked the respondent if it wanted to have the hearing for these complaints adjourned so it could prepare its evidence and arguments regarding this new development. The respondent's representative declined this offer, preferring instead to proceed with the hearing without an adjournment.

42 The respondent's representative also objected to this testimony because it was hearsay evidence. The Tribunal determined that the testimony is admissible because hearsay evidence is generally admissible in a quasi-judicial process, including this complaints process, even though the hearsay evidence generally may have less evidentiary weight than evidence made through the testimony of the person who made the statements.

43 The respondent asked the appointee, who is the subject of the allegation of favouritism, to testify in this regard. She stated that her relationship with her supervisor during the appointment process was a professional relationship. She added that this relation has not changed since then. She learned about this rumour for the first time at the hearing.

44 Ms. Gratton also stated that she never thought that the appointee and the supervisor had a personal relationship. It was only at the hearing that she first learned of this rumour.

45 During the cross-examination of the appointee, the complainants' representative got her to acknowledge that an initial version of the Notification of Consideration for her appointment to the CS-03 position indicated that the supervisor was the person to contact for more information on this appointment. This first notification was replaced with a second one, which stated that Ms. Gratton was the person who should be contacted. The appointee replied that the appointment notices are written by Human Resources. They had made an error in the first notification. The notification should have indicated that Ms. Gratton was the contact person, as was the case for the other appointments. Human Resources then issued a second notification with Ms. Gratton's name to correct the error.

46 In her testimony, Ms. Gratton stated that she was the contact person indicated in the Notification of Consideration for all the appointees. She did not know why an initial version of this notice for the appointee included the name of this person's supervisor instead of Ms. Gratton's name.

Analysis

47 The complainants filed complaints of abuse of authority under ss. 77(1)(a) and (b) of the PSEA. The expression "abuse of authority" is not defined in the PSEA. However, s. 2(4) states that this includes "bad faith and personal favouritism." In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 (Tibbs), the Tribunal found that it is clear from the PSEA that abuse of authority involves more than mere errors and omissions.

48 The Tribunal has specified in many decisions that the onus is on the complainant to prove, on a balance of probabilities, that there was abuse of authority in an appointment process (see, for example, Tibbs at para. 49).

49 Before addressing the issues, the Tribunal would like to note that most of the evidence presented by the complainants does not relate to the appointment process but rather to the classification process for their positions. According to them, the classification process was not carried out properly and their positions should have been classified at a higher level. They also regret the lack of transparency of the process and the fact that it was not the same individuals who carried out this exercise in Quebec as in the rest of the country. According to the complainants, the respondent should have chosen a bilingual person to carry out this exercise across the country. The Tribunal cannot rule on these matters because it does not have jurisdiction under the PSEA as to how to classify a position and how the classification process should be carried out. Section 88(2) of the PSEA specifies that the Tribunal's mandate is limited to considering and disposing of complaints relating to layoffs (s. 65), revocations of appointments (s. 74), an appointment or a proposal of appointment (s. 77), and the implementation of corrective action (s. 83).

Issue I:  Did the respondent abuse its authority by staffing the positions using non-advertised processes?

50 The complainants allege that the respondent abused its authority by choosing to staff the positions using non-advertised processes.

51 The Tribunal does not accept the complainants' allegations. Section 33 of the PSEA specifically indicates that delegated managers may use either an advertised or non-advertised process to make an appointment. The Tribunal has already established that the simple fact of using a non-advertised process does not constitute, in and of itself, abuse of authority (see, for example, Jarvo v. Deputy Minister of National Defence, 2011 PSST 0006, and Rozka v. Deputy Minister of Citizenship and Immigration Canada, 2007 PSST 0046). In order for a complaint to be substantiated, the complainants need to show that the choice of a non-advertised process constitutes an abuse of authority, as stated in s. 77(1)(b) of the PSEA. In this case, the complainants did not provide evidence of this. The respondent had a valid reason for choosing non-advertised processes. The eight individuals appointed to the positions in question in these complaints were performing the duties of the positions prior to their appointment, and in some cases had been doing so for a number of years. New positions had to be created because their work descriptions no longer reflected the duties they were performing, since the duties had significantly changed over the years due to reorganization. As Ms. Gratton explained, the respondent chose this process in order to avoid leaving these employees without employment. In fact, if the respondent had chosen to staff these positions using advertised appointment processes, other individuals may have been chosen and the people who were already performing the duties of the positions to be staffed risked losing their employment.

52 The complainants also argue that the respondent abused its authority and did not comply with the merit principle because it did not assess them for the positions to be staffed. They argue that they are all qualified for these positions, if not more qualified than the appointees, because they carry out a broader range of tasks than these individuals. The Tribunal cannot agree with this argument. During a non-advertised process, the deputy head only assesses the qualifications of the individual that the deputy head intends to appoint. The deputy head does not compare the qualifications of candidates since there is only one candidate for each position. This is the nature of this type of process and it is expressly laid out in s. 30(4) of the PSEA, which specifies that the PSC is not required to consider more than one person in order for an appointment to be made on the basis of merit.

53 The complainants allege that, by choosing a non-advertised appointment process, the respondent did not respect the values of access, fairness, and transparency, as set out in the Public Service Commission Appointment Policy. According to this policy, the choice of a non-advertised process must be consistent with these values. The complainants point out that ss. 16 and 29(3) of the PSEA specify that the deputy head is required to comply with this policy when appointing an individual to a position.

54 In terms of access, the Tribunal cannot share the complainants' opinion. "Access" does not mean that all employees can participate in all appointment processes. This would go against the scheme of the PSEA, which sets out a number of circumstances in which individuals cannot apply for a position. For example, during an internal advertised appointment process, individuals who are not already employees of the public service cannot apply for the position. Section 34(1) is another example of limits in access to a position. This provision allows access to appointment processes to be limited based on geographic, organizational, or occupational criteria. These are only two examples of limits to access set out in the PSEA. Section 33 of the PSEA specifically indicates that deputy heads may choose an advertised or non-advertised process to make an appointment. It goes without saying that, when delegated managers choose to staff a position using a non-advertised process, other employees cannot apply for this position. This is the nature of this type of appointment process. Therefore, the term "access" should be given a more nuanced meaning, as the Tribunal has indicated in Jarvo, a decision issued after the hearing of these complaints, but with the same ideas:

29 With respect to access, the preamble to the PSEA describes a public service whose members are drawn from across the country. The PSEA does not, however, require access each time an appointment is made in the public service. Section 29 permits internal appointment processes, which limit consideration to people already employed in the public service. Section 34 permits further restriction of access to appointment processes based on where a person lives or works, for example.

30 The PSC's Appointment Policy states that people from across the country should have a reasonable opportunity to apply and be considered for public service employment. Nevertheless, it is evident that access to a position is effectively eliminated for all but the appointee in the case of a non-advertised process chosen in accordance with s. 33.

[...]

32 Neither the PSEA nor PSC's Appointment Policy guarantees an employee a right of access to every appointment opportunity. The PSC expressly promotes the application of reason and discretion with respect to the value of access and appointment decisions.

55 The Tribunal also finds that the respondent's decision was fair, given the circumstances. In Jarvo, the Tribunal referred to the PSC's Appointment Policy, which defines this concept:

28 The Appointment Policy characterizes fair appointment decisions as those that are made objectively and without personal favouritism or political influence. The policy goes on to state that practices must reflect the just treatment of persons. This definition underscores that, in the context of staffing in the public service, one cannot consider fairness through the narrow lens of one individual's perception or perspective. To make objective appointment decisions, delegated managers must consider several perspectives and seek to balance often competing interests when they consider the options available to them to staff a position. It could be said that a manager needs to consider fairness from several perspectives, knowing that the decision is unlikely to be perceived as fair by everyone.

56 In this case, the complainants did not produce any evidence of personal favouritism in the choice of a non-advertised process. As explained above, the respondent appointed to these positions individuals who were already performing the duties and who, in some cases, had been doing so for a number of years, in order to avoid having them lose their employment. The respondent made a fair and common - sense decision.

57 In terms of transparency, almost all the complainants testified as to the difficulty in obtaining the documents. First, the Tribunal notes that the requests for information referred to by the complainants deal with the classification process for the most part and not the appointment process. This is not relevant because the Tribunal does not have jurisdiction over the classification process, as previously explained.

58 In terms of the appointment process, the PSC Appointment Policy specifies that a process is transparent when information about strategies, decisions, policies and practices is communicated in an open and timely manner. The Tribunal finds that the respondent was transparent. The respondent's policy on choosing an appointment process was posted on its intranet site. The respondent notified the complainants in 2008 that it planned to staff new positions using a non-advertised process, as shown in the slide presentation for the employee information session of November 17, 2008. For each appointment, the respondent filed evidence of a written justification that shows how the choice of the non-advertised process is consistent with established criteria and staffing values. For all the positions staffed, the respondent posted the Notification of Consideration on Publiservice, which notified all employees within the area of selection that they can meet with a contact person to discuss the appointment. The respondent also posted the Notification of Appointment or Proposal for Appointment on Publiservice, which informed employees within the area of selection of their right to file a complaint.

59 The complainants argue that the number of non-advertised appointment processes is excessive. The respondent made 30 non-advertised appointments. The complainants argue that this goes against the PSC's recommendations. The PSC states, in the document Guidance Series - Choice of Appointment Process (the PSC's guide), that it "expects to see advertised appointment processes as the standard practice."

60 First, the Tribunal notes that this document is not a policy within the meaning of ss. 16 and 29(3) of the PSEA. As the PSC explained in its written arguments, this is a guide that is not binding on deputy heads.

61 The Tribunal also notes that s. 33 of the PSEA expressly gives delegated managers the ability to choose between an advertised or non-advertised process and this provision does not set out a preference for either process. In any case, there is no evidence that the use of a non-advertised process was "the standard" [translation]. The complainants did not submit evidence that this was a generalized situation. The respondent was in a very particular situation. It noted that the work descriptions of 30 of its employees no longer reflected their duties and wanted to regularise the situation. If it had staffed these positions using advertised processes, the employees might have lost their employment, as was explained previously.

62 The Tribunal therefore rejects the allegation that the respondent abused its authority by choosing to staff the positions using non-advertised processes.

Issue II:  Did the respondent correctly assess the appointees?

63 The complainants allege that the appointees were not properly assessed.

64 With respect to Mr. Goring and Mr. Henning, the complainants base their allegation on the fact that Ms. Chouinard, a colleague, had observed their work and was of the opinion that they did not possess the required skills. Mr. Goring had to install a telephony system and Mr. Henning had to activate a telephony system. According to Ms. Chouinard's testimony, both of them failed in their duties.

65 The Tribunal notes that it has ruled in a number of decisions that its role is not to reassess candidates but rather to determine whether there was an abuse of authority in the appointment process (see, for example, Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020).

66 The Tribunal cannot accept the complainants' allegation. The PSEA sets out a very specific model for determining a candidate's competency in a position. Section 30 of the PSEA states that the deputy head may appoint an individual to a position if the individual meets the merit criteria. In this case, the respondent assessed the appointees based on the merit criteria and concluded that they met these requirements. The complainants did not show which merit criteria Mr. Goring and Mr. Henning failed to meet or how the assessment was incorrect or inadequate. The very general and subjective opinion of Ms. Chouinard, who is one of the appointees, regarding Mr. Goring's and Mr. Henning's skills, without any reference to the merit criteria, does not constitute adequate evidence of their competency.

67 Ms. Chouinard's situation is somewhat exceptional. The complainants did not specifically allege that she had been incorrectly assessed, but the complainants' representative asked her whether she had been correctly assessed and she answered that she had not been correctly assessed. In a sense, she argued against her own interests. She was assessed by Mr. Ménard, her supervisor, and Ms. Gratton. Her opinion is based on the fact that she worked with Mr. Ménard for seven months and she observed that he did not have the desired technical knowledge to assess her. In her opinion, Ms. Gratton also did not have this knowledge.

68 The Tribunal finds that the complainants did not show that Ms. Chouinard's appointment constituted an abuse of authority. Ms. Chouinard's opinion is only based on her subjective assessment of Mr. Ménard's and Ms. Gratton's ability to assess her. This evidence is not sufficient. The members of the assessment board do not have to do the same work as the person being assessed. The complainants did not specify the technical knowledge that these members should have had or how Mr. Ménard's and Ms. Gratton's alleged lack of technical knowledge influenced their assessment of Ms. Chouinard.

69 The complainants also argue that there were errors in the assessment of the candidates because the candidates assessed themselves. However, they did not submit evidence to substantiate their allegation. The Tribunal finds that the evidence shows the opposite. Ms. McClelland stated that candidates were not involved in their own assessment. The Tribunal also notes that there is nothing wrong with a candidate being involved in his or her own assessment by submitting a résumé to the manager or by filling out a questionnaire, as Ms. Chouinard did, as long as it is the assessment board that determines whether a candidate meets the merit criteria. There is no evidence in these complaints that a body other than the assessment board determined the candidates' assessment.

70 The complainants also note that there were similarities in the assessment of Mr. Ducharme and Mr. Beaudry. The Tribunal finds that this does not establish that their assessment was erroneous. The Tribunal accepts the explanation provided by Ms. McClelland, indicating that this resemblance is due to the fact that they were doing the same work, since Mr. Ducharme replaced Mr. Beaudry when Mr. Beaudry retired.

71 The Tribunal therefore rejects the allegation that the appointees had been incorrectly assessed.

Issue III:  Did the respondent show personal favouritism or an apparent conflict of interest?

72 The complainants argue that there was personal favouritism and an apparent conflict of interest regarding one of the appointees. This person was assessed by her supervisor and, according to the complainants, the person and the supervisor had a personal relationship.

73 The Tribunal finds that there is insufficient evidence of personal favouritism towards this person or evidence of an apparent conflict of interest on the part of the supervisor. Even if it were true that they saw each other a lot and that they often ate together (however, there is no conclusive evidence to this effect, other than Ms. Vaudrin's hearsay evidence), this does not necessarily indicate that they were in a personal relationship. Clearly, "a couple" [translation] constitutes a very personal relationship, but this is something that Ms. Vaudrin heard from colleagues. This hearsay evidence cannot have more evidentiary weight than the testimony under oath of the appointee, who stated that her relationship with her supervisor was a professional relationship.

74 The Tribunal cannot conclude anything from the fact that the initial Notification of Consideration had been posted with the name of this person's supervisor as the person to be contacted for more information. Human Resources then changed the name of the person to be contacted for more information to Ms. Gratton's name. The uncontested testimony of the person who is the subject of this allegation is that these notifications are written by Human Resources. There is no evidence that either the appointee or the supervisor were involved in writing this part of the notification.

75 The Tribunal therefore dismisses the complainants' allegation of personal favouritism and apparent conflict of interest.

Decision:

76 For all these reasons, the complaints are dismissed.

John Mooney
Vice-Chair

Parties of Record

Tribunal File:

2009-0230

Style of Cause:

Sylvie Vaudrin and the Deputy Minister of Human Resources and Skills Development Canada

Hearing:

October 12 to 14, 2010

Date of Reasons:

July 19, 2011

APPEARANCES:

For the complainant:

André Julien

For the respondent:

Michel Girard

For the Public
Service Commission:

Lili Ste­Marie
(written arguments)