FPSLREB Decisions

Reasons for Decision

Introduction

1 Martin Rosenthal, the complainant, applied for the position of Scheduling and Administrative Assistant at the AS-01 group and level within the Office of the President of the Federal Economic Development Agency for Southern Ontario in Kitchener, Ontario (the Agency). While the complainant was found qualified, another candidate was selected as the right fit for this position based on Effective Interpersonal Relationship and Judgement.

2 The complainant brought a complaint of abuse of authority to the Public Service Staffing Tribunal (the Tribunal) under s. 77(1) (a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA). The complainant claims that there has been an abuse of authority in the application of merit in this appointment process based on the following allegations. First, he alleges that the assessment tool used in the appointment process, namely the right fit rationale, did not assess the essential qualifications for the position. Secondly, he asserts that he was not offered a full informal discussion. As well, he contends that favouritism was displayed towards the person appointed, and that her appointment was made before five days had elapsed after the Notice of Consideration was issued. Finally, the complainant alleges that he was discriminated against because of his age, gender and disability.

3 The respondent, the President of the Agency, denies that it abused its authority in making the appointment. The respondent maintains that it acted in good faith and without favouritism in determining the qualifications for the position and identifying persons qualified for appointment. In addition, it asserts that during the appointment process, staffing decisions were made based on all of the relevant information gathered by those involved in the process. Based on this information, the delegated manager concluded that the complainant was qualified for the position, but another candidate who had also qualified for the position was the right fit and, thus, was appointed to the position.

4 The Public Service Commission (PSC) did not participate in the hearing, but provided written submissions. It addressed its submissions generally to the issues relating to the application of ss. 77(1) and 81(1) of the PSEA.

Issues

5 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority by basing its selection for appointment on improper criteria?
2. Did the respondent discriminate against the complainant and thereby abuse its authority in the appointment process?
3. Did the respondent abuse its authority by demonstrating personal favouritism towards the successful candidate?

Relevant Evidence and Analysis

Issue 1:  Did the respondent abuse its authority by basing its selection for appointment on improper criteria?

6 The complainant was employed as an executive assistant to the Commanding Officer Area Support Unit of the Department of National Defence in Toronto when he applied for the position of Scheduling and Administrative Assistant at the Agency on November 16, 2009. The complainant testified that his main tasks as an executive assistant were similar to the tasks that had been advertised in this appointment process for a scheduling assistant. These included tasks such as controlling the calendar of the Commanding Officer, sending notices of appointment, writing and editing letters and documents.

7 When he was initially screened out of the appointment process, he discussed his application with Stacey Charron, Human Resources Advisor, and asked her to reconsider his application. During that discussion he emphasized his qualifications for the position. He received a reply two weeks later indicating that he had been screened in and was invited for a written test on February 1, 2010 in Kitchener, Ontario. He passed the test.

8 On February 11, 2010, the delegated manager in this appointment process, Andrea Smart, Operations Manager for the Deputy Minister of the Agency, and Leslie Vaillancourt, Human Resources Advisor, interviewed the complainant. The complainant estimated the length of the interview to range between 45 minutes to an hour.

9 The complainant stated that he had applied to this new agency hoping to demonstrate his worth to the Agency and felt that he had the experience to make a contribution. He also felt it was a good environment to work in and he welcomed the chance to move to Kitchener where he had once resided. He testified that he has a secret clearance and that he had self-identified a medical disability on his application form.

10 Upon his return home from the interview, the complainant stated that he received a call from Ms. Charron who told him that he had done well during the interview. She asked whether she could send his file to the Warden of the Grand Valley Institution. He asked why she was doing this and whether he was being excluded from the Agency appointment process. He was told that he had not been screened out. Ms. Charron wanted to know whether her friend, the Warden at Grand Valley Institution, could offer him a job.

11 The complainant later spoke with the Warden and learned that Ms. Charron had "raved" about him. However, the Warden said that she had nothing for him at the time. Within a few days of the interview the complainant’s Commanding Officer received a phone call from Ms. Charron with respect to a reference for the complainant. The complainant learned that Ms. Charron had said good things about him and also learned that she had contacted another of his referees.

12 After he saw the February 18, 2010 Notice of Consideration that identified Tori West as the successful candidate, the complainant had another conversation with Ms. Charron. Ms. Charron told the complainant that they had decided to go with a young woman who also had experience as a scheduling and administrative assistant. Ms. Charron advised him that a pool had been created for the AS-01 group and level and that his name would be put in that pool. She also said that Ms. Smart would contact him to discuss his application.

13 On February 24, 2010, the complainant initiated an email exchange with Ms. Smart. In her February 26, 2010 response to his queries, Ms. Smart told him that he did well when she interviewed him but there were concerns about his ability to communicate concisely. However, the complainant emphasized in his testimony that there is no reference to the ability to communicate concisely in the Statement of Merit Criteria (SMC) for this position.

14 Ms. Smart testified that the Agency was created in 2009 and grew from six employees to over 200 within a short period of time. As Operations Manager she performs a variety of tasks, which include responsibility for arranging the meeting and call schedule of the Deputy Minister, tracking invitations, overseeing budgets and finances and dealing with other administrative matters.

15 As the delegated manager, she was keenly aware of the duties related to the AS-01 position because she had performed the tasks and was very familiar with the role and responsibilities of the position. In consultation with the Manager of Human Resources, Jodi Wilks, and her Chief of Staff, Ms. Smart developed the essential qualifications, the asset qualifications and the conditions of employment for the AS-01 position. The SMC was published on January 10, 2010. Included in the list of Essential Qualifications on the SMC were the categories: PS 1 – Effective Interpersonal Relationship and PS 2 – Judgement.

16 In relation to the essential qualifications listed on the SMC, Ms. Smart stated that the education and knowledge qualifications were assessed through the initial screening of applications. The ability qualification was assessed by the written examination. The personal suitability (PS) qualifications were assessed by a combination of interview and reference checks. The two PS qualifications at issue in this case, PS 1 and PS 2, were assessed by an interview. Only two of the candidates, the complainant and Ms. West, qualified for the one vacant position.

17 Ms. Smart testified that PS 1 – Effective Interpersonal Relationship and PS 2 - Judgement were assessed based on a pass/fail standard. Both the complainant and Ms. West met these qualifications and also qualified following the reference checks. Ms. Smart reviewed the results of the process and asked Human Resources to offer the position to Ms. West. In light of her responses during the interview, Ms. Smart concluded that Ms. West showed that she was decisive – was quick and concise and could convey that information. She felt that the position needed someone with those qualifications. That decision was reflected in the Right Fit rationale for appointment.

18 The complainant referred to the correspondence exchanged between the complainant and Ms. Smart and argued that "clear and concise communication" is not found in the essential qualifications or in the rating guide for the interview questions. He noted that the Deputy Head could have used this terminology in the SMC and it would have been open and transparent. In his view, had the right fit criteria been based on an objective standard such as a numerical figure it would also have been different. The complainant also referred to the interview rating guide, and asserted that the guide did not contain any mention of the "ability to communicate concisely."

19 The respondent stated in reply that the rating guide referred to "transmits and receives information effectively," which related to the merit criteria in the SMC under the headings Effective Interpersonal Relationships and Judgement.

20 The complainant also relied on the February 26, 2010 email response from Ms. Smart. He argued that he should not have been disadvantaged since the ability to communicate concisely was not one of the essential qualifications for the position. He noted that Ms. Smart critiqued the complainant’s responses during the interview by pointing out that at times she found it difficult to understand the point he was trying to make because he provided so much additional information. Ms. Smart stated in her email that while the complainant had the ability to communicate effectively orally, she had "concerns about [his] ability to communicate concisely." She conveyed this message to the complainant in her February 26 email as follows:

So again, while you passed this qualification since you are well spoken, the right fit for this position is a candidate that is not only well spoken but also able to communicate clearly and concisely.

21 The complainant urged the Tribunal to consider a spectrum of abuse of authority between simple error and bad faith or personal favoritism. In his view bad faith or personal favouritism would automatically be an abuse of authority.

22 Abuse of authority is not defined in the PSEA. However, s. 2(4) of the PSEA offers the following guide: "For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism."

23 As the Tribunal’s jurisprudence has established, the use of such inclusive language indicates that abuse of authority includes, but is not limited to, bad faith and personal favouritism.It is clear from the preamble and the whole scheme of the PSEA that abuse of authority requires much more than mere errors and omissions. Abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority. See, for example, Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at para. 66.

24 Merit is the foundation of public service staffing. Section 30 of the PSEA sets merit as the basis of public service staffing. Appointing a person who does not meet the essential qualifications of a position would be an abuse of authority since the appointment would not be based on merit. See Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 0044, at paras. 36 to 38.

25 The Tribunal finds that the complainant has not proven any abuse of authority in the respondent’s decision to appoint Ms. West. The complainant did not suggest that Ms. West lacked the essential qualifications for the position nor challenge the manner in which the assessments were conducted. The ability to communicate concisely in the sense of transmitting information effectively was evaluated during the interview. The interview rating guide identified the ability to transmit and receive information effectively and a focus on communication as key elements in building and maintaining "Effective Interpersonal Relationship." Ms. Smart explained that the ability to provide a concise narrative of the essential information and to make the required decisions in a timely fashion were critical for determining who would be the right fit for the position. These points were highlighted in the right fit rationale. The evidence indicates that Ms. West met these and all other requirements for the position. Accordingly, there is no evidence to suggest that Ms. West was not appointed on the basis of merit.

26 The complainant’s assertion that the process lacked openness and transparency because the ability to communicate clearly and concisely was not specifically mentioned in the essential qualifications was carefully considered. While it is arguable that the ability to communicate clearly and concisely falls squarely within the category of Effective Interpersonal Relationship, it would have been preferable (more transparent) had this criterion been specifically mentioned in the SMC. While the evidence establishes that Ms. Smart was evaluating the ability to communicate, that qualification was not specifically mentioned. It was subsumed under the heading Effective Interpersonal Relationship. The better course of action would have been to inform the candidates ahead of time that the ability to communicate clearly and concisely was specifically to be evaluated by listing it as a separate qualification in the SMC. The failure to highlight the communication skills in the SMC made it less transparent. However, this omission is not in itself serious enough to reach the level of abuse of authority.

Issue 2:  Did the respondent discriminate against the complainant and thereby abuse its authority in the appointment process?

27 Section 80 of the PSEA states that in determining whether a complaint is substantiated under s. 77, the Tribunal may interpret and apply the Canadian Human Rights Act (CHRA). Section 7 of the CHRA makes it a discriminatory practice to directly or indirectly refuse to employ or continue to employ any individual, among other things, on a prohibited ground of discrimination. The age, sex and disability of an individual are included in the list of prohibited grounds of discrimination in section 3 of the CHRA.

28 In the human rights context, the complainant has the onus to prove a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpson Sears, [1985] 2 S.C.R. 536 (known as the O’Malley decision), the Supreme Court of Canada set out the test for establishing a prima facie case of discrimination:

28 […] The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which cover the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.[…]

29 The complainant need only show that the alleged discrimination was one of the factors, not the sole or even the main factor, in the respondent’s decision not to select him in this appointment process for a prima facie case to be met. (See: Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12, at para. 7 (F.C.A.)).

30 The Tribunal is required to determine whether the complainant’s evidence of discrimination, if believed, justifies a finding in his favour in the absence of an answer from the respondent. Thus, at this stage of the analysis, the Tribunal cannot take into consideration the respondent’s answer before determining whether a prima facie case of discrimination has been established. (See: Lincoln v. Bay Ferries Ltd., [2004] F.C.A. 204, F.C.J. No. 941 (QL), at para. 22 (F.C.A.)).

31 If the complainant establishes a prima facie case of discrimination, the onus shifts to the respondent to provide a reasonable non-discriminatory explanation for not selecting the complainant as the successful candidate in this appointment process.

32 The complainant’s age, gender and his self-identified disability are the basis of the claim of discrimination. The complainant testified that he was asked to provide his date of birth under the guise of confirming his security clearance. He relies on an email exchange with Ms. Charron. On February 16, 2010, Ms. Charron wrote to the complainant requesting his date of birth to enable her to verify his security clearance. The complainant provided the requested information on February 22, 2010. In addition, the complainant testified that Ms. Charron had told him in a conversation that the position had gone to a young woman. The complainant felt that age was coming into play because he had shown a copy of his security clearance to agency officials. He testified that he would soon be 61 years of age.

33 The complainant also testified about his belief that the disclosure of an illness adversely influenced the respondent in its appointment decision.

34 Based on the evidence presented at the hearing, the Tribunal finds that the complainant has established a prima facie case of discrimination on the prohibited grounds of age and sex. He qualified for the position but was not selected for the position. The successful candidate also qualified but was younger than he was and was of a different sex. The complainant testified that he was told by Ms. Charron that the respondent had decided to go with a young woman in staffing this position.

35 The Tribunal is not satisfied that the complainant has established a prima facie case of discrimination based on disability. The only evidence that the Tribunal has is a notation on the last page of the complainant’s application that he had a medical condition that he described as "other disability," and his belief that this disclosure adversely affected his candidacy. While the Tribunal can accord weight to the complainant’s belief, as the Canadian Human Rights Tribunal has stated, "an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough." (See Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, at para. 41; application for judicial review dismissed: 2006 FC 785). In these circumstances the complainant has not raised any evidence either direct or circumstantial that shows that his disability was a factor in the decision to select Ms. West over him in this appointment process. Therefore, the Tribunal finds that the complainant has not established a prima facie case of discrimination based on disability.

36 Since the complainant has established a prima facie case of age and sex discrimination, the onus turns to the respondent to provide a reasonable non - discriminatory explanation for its actions. In reply the respondent called evidence from Ms. Smart and Ms. Charron. This evidence, which was not challenged on these points, revealed that age, gender and disability did not factor into the selection decision. In relation to age discrimination, the complainant based the allegation on the request for his date of birth information and the telephone conversation with Ms. Charron in which she told him that they had decided to go with a young woman in staffing this position.

37 Ms. Charron testified that the Agency relied on Industry Canada to perform its security clearance checks. Industry Canada had a protocol in which it used the date of birth information to confirm the complainant’s security clearance. In addition Ms. Charron testified that she had used the term young woman simply to describe the successful candidate.

38 The Tribunal finds that the testimony of Ms. Charron is consistent with the other documented facts in this case. The Tribunal notes that the complainant provided his date of birth to Ms. Charron on February 22, 2010 – four days after the publication of the Notice of Consideration of Ms. West. Based on the evidence, the provision of his date of birth was for security reasons and not a factor in this appointment. Ms. Charron’s testimony that she used the term young woman simply as a descriptor was not challenged on cross-examination. There was no other evidence presented to the Tribunal in support of the complainant’s allegation of age and sex discrimination.

39 Furthermore, the respondent’s explanation that Ms. West performed better in the interview has not been shown to be a pretext for not awarding the position to the complainant. Ms. Smart testified that she chose the other candidate because the other candidate was the right fit based on objective criteria for choosing a successful candidate that had been established at the outset of the appointment process. The right fit rationale supports Ms. Smart’s testimony. The Tribunal finds that the respondent has provided a reasonable non-discriminatory explanation for selecting Ms. West over the complainant, which has not been proven to be pretextual.

40 In reaching its decision on these allegations, the Tribunal considered whether it could draw adverse inferences against the respondent in relation to the evidence that within hours of his employment interview with Ms. Smart he received a call from Ms. Charron. Ms. Charron told him that he had done well on the interview and asked whether she could send his file to the Warden of the Grand Valley Institution. The complainant later spoke to the Warden, but she did not have a job for him at the time.

41 The Tribunal considered this evidence and the totality of the evidence including the February 26, 2010 email from Ms. Smart. In that email Ms. Smart advised the complainant that in recognition of his skills and qualifications she had recommended the establishment of a pool so that other hiring managers in the Agency may be able to consider the complainant for future opportunities. The Tribunal finds that the respondent’s action in creating a pool and in referring his résumé to another agency reflected their attempts to find a position for a good candidate, albeit not the one who was determined to be the right fit for the one available position. Accordingly, the Tribunal does not draw any adverse inferences against the respondent for its actions.

42 In relation to the allegation of discrimination on the basis of disability, even if the Tribunal were to have found that the complainant had established a prima facie case of discrimination, Ms. Smart testified that at no time prior to the decision to choose Ms. West did she see the notation on the last page of the complainant’s application that he had a medical condition that he described as "other disability." Ms. Smart testified that she was unaware that the complainant had a disability. The Tribunal finds that, through the uncontested testimony of Ms. Smart, the respondent has provided a reasonable non-discriminatory explanation that its decision was not based on the complainant’s disability.

43 In the circumstances of this case, there is a reasonable explanation for the request for the date of birth and the description of the successful candidate. She was chosen because she was the right fit based on the objective criteria for selecting a successful candidate. The complainant’s sex, age and disability were not factors in the decision to select Ms. West rather than the complainant. Accordingly, the Tribunal concludes that the complainant has not proven his allegation of discrimination based on age, sex and disability.

Issue 3:  Did the respondent abuse its authority by demonstrating personal favouritism towards the successful candidate?

44 Abuse of authority includes 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)

45 In para. 41 of Glasgow, the Tribunal found:

Where there is a choice among qualified candidates, paragraph 30(2) of the PSEA indicates that the selection may be made on the basis of additional asset qualifications, operational requirements and organizational needs. The selection should never be for reasons of personal favouritism. Undue personal interests such as a personal relationship between the person selecting and the appointee should never be the reason for appointing a person. Similarly, the selection of a person as a personal favour, or to gain personal favour with someone else, would be another example of personal favouritism.

46 There was no direct evidence relating to a close personal relationship between Ms. Smart, the person selecting the successful candidate, and Ms. West. The analysis then revolves around whether there was circumstantial evidence concerning an action, comment or event prior to or during the appointment process that signaled personal favouritism. In Glasgow, at para. 44,the Tribunal ruled that personal favouritism could be established by direct evidence or, in some cases, by circumstantial evidence.

47 In this case, the complainant has presented evidence, which, he believes, when taken together, leads to a conclusion of personal favouritism in the appointment of Ms. West. In reviewing the totality of the evidence the following facts and arguments are most germane to this allegation. First, the complainant states that he qualified for the position. Second, the person selected was a term employee of the organization. Third, the age and sex of the successful candidate compared to the age and sex of the complainant was markedly different. Fourth, the complainant argued, incorrectly, that the appointment was made before the end of the waiting period. Fifth, the complainant argued that the right fit criteria were used to justify what was really personal favouritism. Sixth, the complainant alleged that the respondent rejected the complainant because of his inability to meet a criteria (inability to communicate concisely) when this criteria was not one of the essential qualifications for the position. Finally, the complainant alleged that the delay in publishing the notification of appointment until months after the publication of the notice of consideration prejudiced his position.

48 The Tribunal notes that there was no direct evidence of a relationship between the person selecting the candidate and the successful candidate. In this case, Ms. Smart was delegated to establish essential and other qualifications and to assess candidates in relation to those qualifications. The evidence established that she made the assessments in relation to the qualifications that had been established and in accordance with the rating guide that had been created. She had to choose between two qualified candidates (of whom the complainant was one) and did so in accordance with the criteria that had been established.

49 Admittedly, there was a delay between the posting of the Notice of Consideration and the Notice of Appointment. The Tribunal accepts the respondent’s submission that this was the result of an administrative oversight. It did delay the timing of the filing of the complaint, but otherwise the delay did not prevent the complainant from challenging the appointment and had no other adverse effects on the complainant. (See Brown v. Deputy Minister of National Defence, 2010 PSST 0012, at paragraph. 77). Based on all the evidence presented, the Tribunal finds that the complainant has failed to establish that there has been personal favouritism in the appointment of Ms. West. Accordingly, this allegation is not substantiated.

Other Allegations

(i) Informal Discussion

50 The complainant submits that the respondent failed to provide him with a full informal discussion. Under s. 47 of the PSEA, where a candidate who is not appointed requests, the delegated manager may informally discuss its decision with that person. In Rozka v. Deputy Minister of Citizenship and Immigration, 2007 PSST 0046, the Tribunal discussed the role of informal discussion at para. 76 as follows:

Informal discussion is intended primarily to be a means of communication for a candidate to discuss the reasons for elimination from a process. If it is discovered an error has been made, for example, if the assessment board did not consider some information listed on a candidate’s application, this provides the opportunity for the manager to correct that mistake. However, Informal discussion is not an opportunity to request that the assessment board reassess a candidate’s qualifications.

51 The complainant’s allegation is based on the fact that following the appointment of Ms. West the complainant wrote to Ms. Smart requesting a call to obtain feedback on why he was not chosen for the position. Two days later he followed up with another email and repeated his request to discuss the matter by telephone. Ms. Smart responded the same day by providing a detailed explanation that responded to the complainant’s request for her to elaborate on what "you consider to be the ‘best fit’." The reply fully addressed the questions he had raised in his February 24, 2010 email. Although Ms. Smart did not respond by telephone she did provide a written response that appears to have satisfied the complainant because he did not request any further clarification from Ms. Smart either in writing or orally. The Tribunal finds that the respondent’s response to the complainant’s request for informal discussion was adequate in the circumstances. The complainant’s allegation with respect to informal discussion is not substantiated.

(ii) The Notice Requirements

52 The Notice of Consideration was dated February 18, 2010, and the letter of offer to Ms. West is dated February 23, 2010. The letter of offer recites an effective date for the beginning of the indeterminate position to be February 23, 2010. At issue is whether five days had elapsed between the Notice of Consideration and the appointment of Ms. West. As set out in s. 48(2) of the PSEA no appointment can be made during the five-day waiting period established by the PSC following the Notice of Consideration.

53 The PSC did not attend the hearing but provided written submissions relating to this issue. Of particular note was its comment that "[when] calculating a waiting period, the waiting period includes the day on which the notification is made." The PSC referred to its Guide to Implementing the Notification. The PSC’s position is consistent with s. 27(3) of the Interpretation Act, RSC 1985, c. I-21, which states as follows: "Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day."

54 The Tribunal finds that the respondent complied with the waiting period established by the PSC. In light of the fact that the day of notice is part of the waiting period, the waiting period ended on February 22, 2010, the day before the appointment of Ms. West to the position. Accordingly, this allegation is not substantiated.

Decision

55 For all these reasons, the complaint is dismissed.

Eugene Williams
Member

Parties of Record

Tribunal File:

2010-0271

Style of Cause:

Martin Rosenthal and the President of the Federal Economic Development Agency for Southern Ontario

Hearing:

April 19 and 20, 2011
Toronto, Ontario

Date of Reasons:

Ottawa, August 4, 2011

APPEARANCES:

For the complainant:

Louis Bisson

For the respondent:

Josianne Phenix and Pierre Marc Champagne

For the Public
Service Commission:

Céline B. Henry (written submissions)