FPSLREB Decisions

Reasons for Decision

Introduction

1 Srutideb Mahakul, the complainant, applied in an internal advertised appointment process for Manager, National Training Program. This is a position classified at the TI-08 group and level (the TI-08 position). He alleges that the Deputy Minister of Transport, Infrastructure and Communities (the respondent), abused its authority by appointing Rajiv Deengar, who was not qualified, to the position.

2 The respondent denied that there was any abuse of authority and stated that Mr. Deengar met the essential qualifications for the position.

3 The Public Service Commission of Canada did not appear, but presented a written submission. Although it took no position on the merits of the case, it emphasized the requirement for appointment processes to conform to the Public Service Commission Assessment Policy. This includedthe need to design assessment processes and methods to fairly and effectively assess candidates' qualifications.

Background

4 Candidates for the TI-08 position were screened against the essential qualifications for education, occupational certification and experience. Mr. Deengar and one other candidate were found to meet the screening qualifications. They then wrote an examination and attended an interview to assess the essential knowledge and abilities qualifications. Mr. Deengar was the only candidate to pass the examination and interview. He was further assessed for personal suitability and found fully qualified.

5 On August 25, 2009, the respondent issued a Notice of Consideration to indicate that Mr. Deengar was being considered for appointment. On September 1, 2009, a Notice of Appointment or Proposal of Appointment was posted showing that Mr. Deengar was being appointed to the TI-08 position.

6 On September 11, 2009, the complainant brought a complaint to the Tribunal. He contended that Mr. Deengar did not meet an essential experience qualification for the TI-08 position and that the respondent abused its authority by appointing him. The complainant initially raised concerns of bias and personal favouritism in his complaint, but he withdrew these at the outset of the hearing.

Issues

7 The Tribunal must determine whether the respondent abused its authority in finding that Mr. Deengar met the essential experience qualification for the TI-08 position.

Analysis

8 The Statement of Merit Criteria for the TI-08 position included the following essential experience qualification: "Experience as a marine safety inspector, acquired in a combination of HQ and regional environments."

9 According to a letter of offer that was entered in evidence, Mr. Deengar was appointed to the position of Senior Marine Inspector (SMI) with Transport Canada (TC) in the Marine Safety Branch in Winnipeg on July 3, 2007. Approximately six months later, he moved to headquarters. The complainant indicated that he believed six months in the Winnipeg regional office was insufficient to satisfy the requirement for marine safety inspector experience in a regional environment. He stated that although he had never worked with Mr. Deengar and had no personal knowledge of his work experience, he was concerned with the experience Mr. Deengar claimed to have gained when he was a SMI in the Winnipeg regional office. The complainant noted that Mr. Deengar's application indicated that he had conducted inspections of passenger vessels, tankers and small fishing vessels, including inspections of six specific vessels. The complainant produced a printed list of inspections drawn from SIRS, an internal departmental information system, showing that Mr. Deengar was an inspector on only two of the six vessels he named. The complainant suggested that as two inspectors' names appeared in both cases, it was possible that Mr. Deengar was present only as an observer for these vessel inspections.

10 The complainant further argued that Mr. Deengar ought to have been authorized as a marine safety inspector under s. 11 of the Canada Shipping Act, S.C. 2001, c. 26 (CSA) to conduct marine safety inspections while in the Winnipeg regional office. Alexis Demangelos, a SMI with the department, testified. He described the type of training and period of time to acquire authorization under s. 11 of the CSA. He referred to his personal training experience as well as training procedures set out in a departmental information circular and stated that it took him approximately 18 months to complete his training and obtain authorization under s. 11 of the CSA.

11 The complainant relied on TC's Marine Inspector's Online Handbook (the Handbook) to support his argument that s. 11 authorization was required to carry out marine safety inspector duties. It provides that marine inspectors will hold "one or more appointments/designations" relating to the authority given to them under legislation to perform their functions and duties. With specific reference to marine safety inspectors, the Handbook notes that:

The appointment is made under Section 29 of the [PSEA], as per Section 11(1) of the [CSA]. Section 11(2) of the [CSA] gives power to the Minister of Transport to authorize the inspector to exercise certain powers.

12 Referring to details from Mr. Deengar's application, the complainant noted the mention of a safety awareness presentation provided by Mr. Deengar and translated into Inuktitut. The complainant stated that he had searched the departmental Record of Documents Information Management System (RDIMS) and found no electronic record of the presentation.

13 Ruth Romkey (now retired) was, at the relevant time, the Director of Program and Technical Training Services for TC. She was the hiring manager for the TI-08 position and she participated in the establishment of the essential qualifications for the position. She testified that the combination of regional and headquarters experience was a carefully considered requirement in establishing the qualifications. She sought an individual who understood what went on in a region and the regional roles and functional responsibilities. In addition, she wanted a person who had the experience to understand the headquarters role in oversight of the department and the development of regulations, policies and standards.

14 Ms. Romkey described the information she considered in screening Mr. Deengar's application for experience. Mr. Deengar was, at the time, a SMI and Ms. Romkey stated that upon appointment, a SMI possessed certain competencies. She indicated that Mr. Deengar's application reflected that he had conducted marine safety inspections and dealt with safety awareness. Both of these activities fell within the scope of SMI duties. The assessment board therefore accepted his statements concerning his experience.

15 Ms. Romkey stated that authorization under s. 11 of the CSA was not a pre-requisite within TC for a SMI to perform marine safety inspector duties. She explained that operationally, a SMI could conduct marine safety inspections and sign inspection reports. However, they could not issue inspection certificates unless they held s. 11 authorization. Ms. Romkey's testimony concerning operation practices within TC was not challenged.

16 Referring to the SIRS report produced by the complainant, Ms. Romkey indicated that SIRS was not a record of all inspections conducted by the department and, in particular, it did not record small vessel inspections. She estimated that only one-quarter of inspections were entered in the SIRS system. With reference to the SIRS record showing Mr. Deengar as one of two inspectors for certain inspections, she stated that if Mr. Deengar had jointly conducted a marine safety inspection with another marine safety inspector, both of their names would be recorded. The appearance of two names was not an indication that Mr. Deengar was a mere observer.

17 In the matter of the RDIMS system, Ms. Romkey stated that RDIMS was not maintained as a comprehensive electronic data base of all documents produced by the department. Moreover, it was not consistently used across the country with the result that paper files were still maintained.

18 Having heard and considered the evidence presented, the Tribunal concludes as follows.

19 Firstly, the Tribunal finds that the complainant has not established a foundation for his belief that six months of experience in a regional environment was insufficient to meet the experience qualification. No evidence was adduced to support his claim other than his own belief. As the Tribunal has noted in previous decisions, belief is not proof. (See Carnegie v. Deputy Minister of Citizenship and Immigration 2009 PSST 0006, para. 89; Robert and Sabourin v. Deputy Minister of Citizenship and Immigration 2008 PSST 0024, at para. 83).

20 Secondly, the Tribunal is not persuaded by the complainant's argument that without authorization under s. 11 of the CSA, Mr. Deengar, could not perform the duties of a marine safety inspector. "Marine safety inspector" is not defined under the CSA. Although the complainant refers to provisions under the CSA that state that authorization is required, the provisions in question relate to specific inspections and activities. Ms. Romkey's evidence was that within TC, a SMI performs marine safety inspector duties even without s. 11 authorization, and that Mr. Deengar's description of his experience was consistent with the duties he would have undertaken. Her testimony concerning TC's operational practices was not challenged. Given the evidence presented, the Tribunal is not satisfied that the complainant has established abuse of authority in the appointment process. Mr. Deengar's application described marine safety inspector experience that was consistent with Ms. Romkey's explanation of the duties he would have been performing as a SMI. As such, the Tribunal finds that the assessment board reached a conclusion that was reasonably available to it when it screened Mr. Deengar into the assessment process.

21 Thirdly, the Tribunal is not satisfied that either SIRS or RDIMS records are reliable sources of data. The complainant endeavoured to raise inferences based on what was not recorded in them. However, Ms. Romkey's uncontradicted evidence was that neither SIRS nor RDIMS was a comprehensive record.

22 To conclude, the Tribunal accepts that the complainant has not established that there was an abuse of authority in the manner in which the assessment board considered the experience of the appointee. The respondent has broad discretion pursuant to s. 30(2) of the PSEA to establish the necessary qualifications for the position. (See Visca v. Deputy Minister of Justice, 2007 PSST 0024). In the present case, the respondent established an experience criterion that did not fix a minimum period of accumulated time in regional and headquarters environments, a number of completed marine safety inspections or a requirement for authorization under s. 11 of the CSA. It may be that the complainant does not agree with the stated experience criterion, but his disagreement is not a basis for finding an abuse of authority.

23 The burden of proving an abuse of authority rests with the complainant. (See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at para. 50.) The Tribunal finds that the complainant has not met the burden of proving that an abuse of authority occurred in the assessment of Mr. Deengar's experience.

Decision

24 For these reasons, the complaint is dismissed.

Joanne B. Archibald
Member

Parties of Record

Tribunal File:

2009-0584

Style of Cause:

Srutideb Mahakul and the Deputy Minister of Transport, Infrastructure and Communities

Hearing:

May 10, 2011
Sarnia, Ontario

Date of Reasons:

August 10, 2011

APPEARANCES:

For the complainant:

Larry Teslyk

For the respondent:

Michel Girard

For the Public
Service Commission:

John Unrau