FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainants, Dorothy Boulin and Vinitha Jayawardena, are Contracting Advisors with Statistics Canada. They were unsuccessful candidates in an internal advertised appointment process to staff positions of Coordinator – Material and Contract Services (PG-04) at Statistics Canada.

2 Both complainants claim that the respondent, the Chief Statistician of Canada, abused its authority in the application of merit. Ms. Boulin alleges that a disagreement she had with an assessment board member raises a reasonable apprehension that he was biased against her, and that this is why she was found not qualified at the interview. For her part, Ms. Jayawardena alleges that her application was improperly assessed because the chair of the assessment board was biased against her, as demonstrated by this person's comments about her productivity and apparent reluctance to give her an acting appointment prior to this appointment process. As a result, she was screened out of the process.

3 The respondent denies any abuse of authority towards the complainants. It asserts that Ms. Boulin was unsuccessful at the interview because she did not demonstrate that she met two of the abilities qualifications and that Ms. Jayawardena was screened out because she failed to demonstrate clearly in her application that she met all the experience requirements. Finally, the respondent contends that the complainants have presented no evidence of bias in the manner in which they were assessed.

4 The Public Service Commission did not appear at the hearing but presented a written submission in which it reviewed the concept of abuse of authority and described relevant PSC policies and guidelines concerning assessment and selection. It did not take a position on the merits of the case.

5 For the reasons that follow, the Tribunal finds that the complainants have failed to establish that the respondent abused its authority.

Background

6 On December 2, 2009, the respondent advertised this appointment process on Publiservice, with a closing date of December 15, 2009. The Job Opportunity Advertisement (JOA) required candidates to submit an up-to-date résumé and a covering letter where they demonstrated how they met the essential qualifications of education and experience. Failure to submit these documents could result in their application being screened out without further consideration. Only candidates who clearly demonstrated that they met the screening qualifications would be considered.

7 The screening qualifications were listed in the JOA as well as in the Statement of Merit Criteria (SMC), which was attached to the JOA by way of a link button on the Publiservice web page. Amongst the listed essential experience qualifications was "Experience in participating on teams to develop or review contracting practices or procedures" (emphasis added).

8 Candidates could consult the departmental Manager of Training, Development and Outreach (the TDO Manager), for advice and assistance in the drafting of their application and in preparing for the assessment. Accordingly, Ms. Jayawardena consulted the TDO Manager for assistance in drafting her covering letter.

9 Cheryl Hamilton, then Chief of Material and Contract Services (MACS), was the manager in charge of the appointment process and chair of the assessment board. MACS is part of Corporate Services Support Division (CSSD), whose director is Denis Gour. Ms. Hamilton screened the English applications, assisted by the Human Resources Advisor (the HR Advisor) assigned to this appointment process.

10 Screened-in candidates were invited to a written test where 12 questions assessed knowledge and some of the abilities qualifications. The rest of the abilities were assessed through three interview questions. Pass marks had been set for each of the three knowledge and six ability qualifications.

11 The interviews were conducted by three board members, including Ms. Hamilton and a manager from Public Works and Government Services Canada (PWGSC). The third board member was unavailable for three of the interviews, including Ms. Boulin's, and was replaced by Mr. Gour for those interviews.

12 Of approximately 70 candidates, about 40 were screened in. Ms. Jayawardena was not screened in as it was deemed she had not demonstrated she possessed experience in participating on teams to develop or review contracting practices or procedures (E-2).

13 Nine of the screened-in candidates successfully completed a written test and were invited to an interview. At the interview, the board members noted candidates' answers, compared their notes to ensure they were complete, and reached consensus on a mark, using a Board Member's Guide containing the expected responses and a rating scale.

14 Ms. Boulin was screened in but was not successful at the interview because she did not obtain the required pass marks for the qualifications "ability to manage priorities" (A-5) and "ability to manage human resources" (A-6).

15 Seven candidates were successful at the interview and in the rest of the assessment process. Their names were placed in a pool of qualified candidates, from which one candidate was appointed.

16 The complainants filed their complaints pursuant to s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA), alleging that they were not appointed by reason of an abuse of authority by the respondent in the application of merit.

17 The Public Service Staffing Tribunal (the Tribunal) consolidated the files for the purpose of the hearing, in accordance with s. 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 as amended by SOR/2011-116.

Issues

18 The Tribunal must determine the following issues:

1. With regard to Ms. Boulin, does her prior conflict with a board member raise a reasonable apprehension of bias that would constitute an abuse of authority in the application of merit?
2. With regard to Ms. Jayawardena, did the respondent abuse its authority by demonstrating bias and inadequately assessing her experience?

19 Ms. Jayawardena had made an allegation of discrimination in her complaint but stated at the hearing that she would not pursue this claim.

Summary of Relevant Evidence

Evidence related to Ms. Boulin

20 In her testimony, Ms. Boulin described the answers that she provided at the interview to the questions assessing qualifications A-5 and A-6. In her opinion, her answers were complete and appropriate and from the board members' reactions, she believed she was giving the correct answers.

21 She testified that she was surprised and concerned, at her interview, to see that Mr. Gour was one of the board members. She did not express her concerns then because she was afraid of reprisal, and feared that she would miss an opportunity for advancement if she left the interview. Because there were two other board members, she thought Mr. Gour would treat her professionally.

22 Ms. Boulin described three incidents involving Mr. Gour, which occurred approximately one year before the interview. In one instance, two to three months after a meeting with a client and a contractor, in which Mr. Gour had also participated, he told her that she had shown "bad body language" at the meeting and that she was "unapproachable". Mr. Gour repeated this comment in front of a client and a manager on a second occasion. She found these comments embarrassing and undeserved. She sought an explanation at a subsequent meeting but he did not offer any. In a third incident, Mr. Gour used language she found inappropriate and unprofessional when she apologized for missing a meeting.

23 Ms. Boulin stated that after these events, she did not stop talking to Mr. Gour about work issues, and that they continued to have a professional relationship. She explained that she did not file a grievance or a complaint at the time of the events because Mr. Gour was new to the department and, as an experienced union representative, she knew that such complaints could be damaging to a manager's career. She now regretted not doing so as in her view, their disagreement was not settled.

24 Upon finding out that she had not been successful at the interview, she sought an informal discussion with Ms. Hamilton but this was not helpful. Ms. Hamilton told her that she should have expanded on her answers but did not give her specific examples of how to have done this. Ms. Hamilton did not show Ms. Boulin the assessment results of her interview. According to Ms. Boulin, she expressed her concerns about Mr. Gour's participation in the interview, to which Ms. Hamilton responded, "I thought you had settled your differences."

25 In her testimony, Ms. Hamilton gave a detailed description of the shortcomings in Ms. Boulin's answers to the interview questions that assessed qualifications A-5 and A-6. She also described her informal discussion with Ms. Boulin. Ms. Hamilton said that she explained to Ms. Boulin what the board had been looking for and the gaps in her answers. She encouraged her to apply for another position in another department because it was unlikely that there would be another departmental PG-04 appointment process soon. Most particularly, Ms. Hamilton recalled that Ms. Boulin expressed her concerns about Mr. Gour's presence on the board and that she would have cancelled her interview if she had known that Mr. Gour would be there. Ms. Boulin told Ms. Hamilton that she and Mr. Gour had issues between them but did not want to discuss what they were. Ms. Hamilton understood that Ms. Boulin was extremely disappointed about the results, in view of her long service and experience.

26 Ms. Hamilton testified that before the interview, Mr. Gour had made her aware of a situation involving Ms. Boulin, where he had told her that a person's body language when dealing with a client can be misinterpreted, and that it was important to keep it in check. Mr. Gour told Ms. Hamilton that as far as he was concerned, he had dealt with this issue and that was the end of the matter. He wanted Ms. Hamilton to be aware of it. Ms. Hamilton says that she was not made aware of any other matter involving Ms. Boulin.

27 Ms. Hamilton testified that she therefore had understood that the issue between Mr. Gour and Ms. Boulin had already been resolved. She had not brought it up with Ms. Boulin before the interview because, in her view, this was an employer-employee matter and Ms. Boulin could have been offended had Ms. Hamilton done so. Ms. Hamilton said that she would have re-scheduled Ms. Boulin's interview if she had been informed of her concerns. None of the candidates were advised in advance that Mr. Gour would be replacing a board member.

28 Ms. Hamilton added that she has no reason to believe that any board member was biased.

29 Mr. Gour testified that he is the Director of CSSD. His participation on the board was unexpected as he was asked, on short notice, to replace a board member who was not available for three interviews. He has known Ms. Boulin since 2008, when he arrived in the department. They have had several work interactions. Although Ms. Boulin reports to a PG-04 and her PG-03 position is three levels below his position, his management style is to talk directly to an employee if he has a question or wants to discuss something. Mr. Gour stated that he has no knowledge of any concerns involving Ms. Boulin. He acknowledged that some of their discussions have not been "favourable". He said that he only recalled two incidents. In one, after a meeting, he had a discussion with her and told her to be careful about her facial expressions as a client could misinterpret them. In testimony, he gave a visual description of what he meant. He had told Ms. Boulin that one's non-verbal communication is as powerful as verbal communication. He stated that his comment had been a casual one, made in passing, and intended as positive feedback. He explained that Ms. Boulin had later asked to meet with him to discuss this event. In the other incident that he recalled, he had touched Ms. Boulin on the shoulder while talking to another person and Ms. Boulin had told him that this was inappropriate.

30 Mr. Gour could not specifically recall the abilities for which Ms. Boulin did not obtain a pass mark at the interview, nor could he remember the questions that were asked or her specific answers to them. He said he could not do this without consulting his interview notes, as the interview had been held approximately one year ago. Although the interview notes were entered into evidence Mr. Gour was not asked to examine them.

31 Mr. Gour stated that these two events did not affect his professional relationship with Ms. Boulin.

Evidence related to Ms. Jayawardena

32 In her testimony, Ms. Jayawardena explained that on December 8, 2009, she sent her draft covering letter to the TDO Manager, asking her to review it and provide any comments. She did not include a copy of her résumé with the letter. With the TDO Manager's assistance, she was able to finalize the letter the same day. On December 9, 2009, Ms. Jayawardena submitted her application, containing her covering letter and résumé, to the HR Advisor, noting that she was leaving that night for an extended trip abroad and would return on January 31, 2010. On January 26, 2010, Ms. Jayawardena was advised by email that she had been screened out, as she had not demonstrated that she met qualification E-2.

33 Ms. Jayawardena described the informal discussion she had with Ms. Hamilton after she had been eliminated from the appointment process. She submitted to Ms. Hamilton that her résumé, which had been attached to her covering letter, demonstrated that she possessed the E-2 qualification. Ms. Hamilton replied that the HR Advisor had screened the applications and that the résumés had been used only to obtain names of references. However, according to Ms. Jayawardena, Ms. Hamilton told her at a subsequent meeting that she did the initial review of the applications and that the HR Advisor conducted a second review afterwards.

34 Ms. Hamilton described her experience in contracting and procurement and her role as Chief of MACS. She has experience with assessment processes and is very familiar with the duties and responsibilities of the position at issue.

35 Ms. Hamilton explained that for the screening, she did an initial review of the applications. Some applications gave her concerns so she asked the HR Advisor to review them to see whether the candidate had demonstrated, with examples, that he or she met the experience sought. In the HR Advisor's opinion, Ms. Jayawardena had not demonstrated that she met the requirement. In her final review of all applications, Ms. Hamilton agreed with the HR Advisor's opinion about Ms. Jayawardena's application. The HR Advisor did not testify.

36 Ms. Hamilton explained that at the informal discussion, Ms. Jayawardena asked repeatedly for the difference between practices and procedures. Ms. Hamilton did not answer her question because it was not relevant to her covering letter, and was specifically about PWGSC and Treasury Board Secretariat procedures and guidelines. The experience requirement was about working in teams and Ms. Hamilton tried to explain to Ms. Jayawardena that she had been screened out because she did not demonstrate that she met the E-2 qualification, having failed to give any concrete example of participation in teams.

37 Two versions of Ms. Jayawardena's covering letter were entered into evidence: the one with the changes recommended by the TDO Manager on December 8, 2009 (the draft letter), and the one Ms. Jayawardena submitted to the HR Advisor with her résumé on December 9, 2009 (the final letter).

38 In the final letter, Ms. Jayawardena inserted a new sentence: "I also participate in section teams to develop or review contracting practices or procedures", a statement that is practically identical to the E-2 qualification as set out in the SMC. She explained that she added this sentence because in MACS, teams develop internal guidelines and put information together for clients. In her view, contracting practices and procedures include internal guidelines. Ms. Jayawardena acknowledged that she did not provide an example in support of this sentence, stating that the TDO Manager had not told her that she had failed to demonstrate her experience of "participating on teams". She recognized, however, that she did not discuss with the TDO manager the portions that she added to the final letter. The TDO Manager was not called to testify.

39 Ms. Jayawardena also acknowledged that she does not develop contracting practices, stating that this was an error in her covering letter. She said that she does review contracting practices and that the statement elsewhere in her covering letter, that she "provided them with advice and guidance relating to contracting practices", was equivalent to "reviewing contracting practices" in qualification E-2. She said she might not have used exact words but questioned how other candidates had demonstrated this requirement. She did not enter other candidates' covering letters in evidence.

40 Ms. Hamilton stated she sought a concrete demonstration that a candidate had the experience, within a team, in the development or review of contracting practices or procedures. In other words, the candidate could establish that he possessed any of the following types of experience:

• Development of contracting practices; OR
• Development of contracting procedures; OR
• Review of contracting practices; OR
• Review of contracting procedures.

(Emphasis added)

41 She explained that the E-2 qualification is formulated in this manner because employees volunteer in teams and play a role in development, in one way or another. Ms. Hamilton did not require all four elements listed in E-2. If Ms. Jayawardena had demonstrated and given concrete examples of any one of these, she would have been screened in.

42 Ms. Hamilton found that Ms. Jayawardena's statement that she provided "advice related to contracting practices" was vague, lacking any concrete examples or any specific information. As for her résumé, it contained no specific information in relation to what was sought in the SMC. The mention in the résumé of experience of an assignment from 2001 to 2005 gave no specific examples of Ms. Jayawardena's role in guiding people through the process of developing or reviewing contracting practices or procedures. Similarly, Ms. Hamilton did not find what was required in the highlights shown in the last page of the résumé.

43 In relation to her allegation that she was improperly assessed and that Ms. Hamilton was biased against her, Ms. Jayawardena testified that she had a strained working relationship with Ms. Hamilton, who never provided her any positive feedback and did not think she was a good employee.

44 Ms. Jayawardena explained that in 2009, Ms. Hamilton invited PG-03s to express their interest in acting PG-04 opportunities. Ms. Jayawardena confirmed that she was interested, and met Ms. Hamilton for this purpose. During the meeting, Ms. Hamilton commented negatively on Ms. Jayawardena's productivity, questioned her work ethic and said that she was not "pulling her weight". Ms. Jayawardena said that she was able to show Ms. Hamilton that this information was inaccurate. Nevertheless, Ms. Hamilton was still reluctant to let her act in one of the PG-04 positions. Ms. Jayawardena was ultimately given an acting appointment but it was announced as being for a number of weeks whereas her colleagues were given acting appointments of four months. Ms. Jayawardena's acting appointment, in the end, was of almost four months duration.

45 Ms. Hamilton confirmed that acting appointments were given on a rotational basis and that she met with employees about this. Ms. Hamilton met with Ms. Jayawardena about it and discussed her portfolio of contract files. It showed irregularities that caused Ms. Hamilton some concern. She had no recollection of making statements about Ms. Jayawardena's work ethic or about "not pulling her weight" but apologized if she thought this. Ms. Hamilton stated that the record was corrected when Ms. Jayawardena demonstrated that the productivity information was incorrect. Despite this correction, her performance was still demonstrably the weakest. According to Ms. Hamilton, productivity was not a factor in her decision about who would act.

Analysis

46 Section 30(2) of the PSEA gives managers broad discretion to establish the qualifications for the position they want to staff. Similar discretion is provided under s. 36 of the PSEA to choose and use the assessment method deemed appropriate (see Visca v. Deputy Minister of Justice, 2007 PSST 0024 at para. 42). This discretionary power is not absolute and must be exercised fairly and transparently (see, for example, Jolin v. Deputy Head of Service Canada, 2007 PSST 0011 at para. 37 and Denny v. Deputy Minister of National Defence, 2009 PSST 0029 at para. 144).

47 The burden lies with the complainant to prove, on the balance of probabilities, that an abuse of authority has occurred (Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at para. 49).

Issue I:  With regard to Ms. Boulin, does her prior conflict with a board member raise a reasonable apprehension of bias that would constitute an abuse of authority in the application of merit?

48 Ms. Boulin contends that her answers to the interview questions were appropriate and complete. She alleges that board member Mr. Gour was biased against her and did not want her to be appointed in his division because he believes that she expresses herself with inappropriate body language and is unapproachable. He should have declined to be a board member.

49 A complainant who alleges bias need not necessarily prove that a hiring manager or board member had a specific bias against her. A finding of abuse of authority may be made where, in the context of a staffing decision, there exists a reasonable apprehension of bias (see Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010 at paras. 72-74; Bédard v. Deputy Minister of National Defence, 2010 PSST 0015 at paras. 51-52; and Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at 394). Thus, where it is established that an informed person, viewing the matter realistically and practically - and having thought the matter through – would reasonably perceive bias on the part of one or more persons responsible for the assessment, the Tribunal can conclude that there was abuse of authority.

50 An informed person would find that some level of discord existed between Ms. Boulin and Mr. Gour prior to the assessment process. She refers to a "disagreement that was not settled" and Mr. Gour, to "discussions that were not as favourable as others". According to Ms. Boulin, Mr. Gour said she used "bad body language" and was unapproachable. She also referred to an incident of unprofessional language by Mr. Gour. She did not file a formal complaint when the events occurred because, according to her testimony, this could put an end to a manager's career. Ms. Hamilton, Ms. Boulin's manager, testified that Mr. Gour informed her of the issue, adding that the matter had been dealt with and that he considered it closed. Mr. Gour referred in his evidence that he had observed Ms. Boulin's facial expressions and confirmed that he had cautioned her about how they could be perceived.

51 An informed person reviewing the facts would conclude that these prior events do not give rise to a reasonable apprehension of bias. As director of CSSD, to which Ms. Boulin belonged as an employee of MACS, Mr. Gour brought certain matters to her attention, informed her manager, Ms. Hamilton, and advised the latter that he considered the matter closed. The events were isolated and occurred approximately one year before Ms. Boulin's interview. There is no evidence that Ms. Boulin was treated any differently as a result (see the similar finding in Praught and Pellicore v. President of the Canada Border Services Agency, 2009 PSST 0001 at para. 66).

52 This situation differs from that in Denny, where a reasonable apprehension of bias was established. In that case, the complainant and the assessment board member were in clear situations of conflict prior to the assessment process. The complainant had played a role in removing the board member in question from a local committee. The complainant had filed grievances and a harassment complaint against the board member and they had not been on speaking terms since.

53 The Tribunal finds that an informed person viewing the facts would not, on the balance of probabilities, reasonably perceive bias on the part of Mr. Gour. Accordingly, the Tribunal finds that there is insufficient evidence to conclude that the respondent abused its authority in the application of merit because of bias.

54 Furthermore, the Tribunal finds that there is no evidence to support a finding that Ms. Boulin was assessed improperly. The evidence of the respondent that she was assessed properly was not contradicted. The notes in Ms. Hamilton's Interview Booklet confirm her testimony about the deficiencies in Ms. Boulin's answers. Although Mr. Gour testified that he could not recall much of the interview, which occurred approximately one year before the hearing, the notes in his Interview Booklet are consistent with Ms. Hamilton's notes and were not challenged on cross-examination. The PWGSC manager who was also a board member was not called to testify.

55 Ms. Boulin did not present any evidence demonstrating that her answers at the interview were sufficient and were not assessed appropriately, nor that the board members' notes did not accurately reflect the answers she provided.

56 For these reasons, the Tribunal concludes that Ms. Boulin has not established that the respondent abused its authority in concluding that she did not meet qualifications A-5 and A-6 and consequently eliminating her from the appointment process.

Issue II:  With regard to Ms. Jayawardena, did the respondent abuse its authority by demonstrating bias and inadequately assessing her experience?

57 Ms. Jayawardena alleges that she was screened out of the appointment process due to bias against her on the part of Ms. Hamilton. She bases her argument on a discussion she had with Ms. Hamilton in 2009 relating to her interest in obtaining an acting appointment and comments Ms. Hamilton made to her at that time about her productivity. She asserts that Ms. Hamilton was reluctant to give her an acting appointment.

58 Turning first to the allegation of bias, the Tribunal finds, in reviewing the evidence, that an informed person looking at all the facts would not reasonably apprehend bias on the part of Ms. Hamilton. Her comments to the complainant about her incomplete work were an appropriate exercise of managerial responsibilities. Moreover, the Tribunal notes that Ms. Hamilton readily corrected Ms. Jayawardena's productivity records when the latter demonstrated that the information was erroneous, and that Ms. Jayawardena did eventually act as PG-04 for a period of almost four months.

59 Accordingly, the Tribunal finds that this evidence is insufficient to support a finding of actual bias or reasonable apprehension of bias against Ms. Jayawardena on the part of Ms. Hamilton.

60 Ms. Jayawardena also contends that her covering letter and her résumé adequately demonstrated that she possessed the required experience. She asserts that her covering letter was reviewed and corrected by the TDO Manager, who conducted the screening of francophone applicants, including the appointee. According to Ms. Jayawardena, the TDO Manager did not advise her that she had failed to demonstrate that she had participated on teams.

61 The Tribunal has held in several decisions that it is up to candidates to clearly demonstrate on their applications that they meet all the essential criteria (see, for example, Charter v. Deputy Minister of National Defence, 2007 PSST 0048, and Edwards v. Deputy Minister of Indian and Northern Affairs Canada, 2011 PSST 0010).

62 In this assessment process, candidates had been advised in the JOA that theywere to submit a résumé and a covering letter demonstrating how they met the screening criteria of education and experience. Ms. Jayawardena testified that she knew she had to demonstrate clearly that she met all the experience requirements.

63 On December 8, 2009, she had sought the TDO Manager's assistance and advice in the review of her covering letter. The corrected covering letter was finalized that day and submitted the following day, but Ms. Jayawardena had added a sentence and made changes that she had not discussed with the TDO Manager.

64 When Ms. Hamilton reviewed the application, the added sentence appeared to be simply a repetition of the E-2 qualification in the SMC. Ms. Hamilton concluded that the complainant had not demonstrated how she met the experience nor given any example in support.

65 The Tribunal is satisfied that the experience requirements were stated clearly on the JOA and SMC, and that candidates knew what they had to demonstrate. Ms. Jayawardena had to provide examples of how she met the experience criteria. Although she received assistance in the preparation of her covering letter, she had the responsibility to read the SMC, seek clarification as required, and fully demonstrate how she met the experience criteria. In her testimony, Ms. Jayawardena acknowledged that she did not provide an example to support her statement on qualification E-2.

66 The Tribunal therefore finds that Ms. Hamilton did not abuse her authority when she concluded that Ms. Jayawardena did not demonstrate that she met qualification E-2.

Decision

67 For the reasons stated above, the complaints of Ms. Boulin and Ms. Jayawardena are dismissed.

Lyette Babin-MacKay
Member

Parties of Record

Tribunal Files:

2010-0653 and 2010-0660

Style of Cause:

Vinitha Jayawardena and Dorothy Boulin v. the  Chief Statistician of Canada of Statistics Canada

Hearing:

September 7, 8 and 9, 2011
Ottawa, Ontario

Date of Reasons:

February 16, 2012

APPEARANCES:

For the complainants:

Pierre Ouellet

For the respondent:

Lea Bou Karam

For the Public
Service Commission:

Céline B. Henry (written submissions)