FPSLREB Decisions

Reasons for Decision

Introduction

1 An Information Regarding Acting Appointment was issued July 29, 2011 for the appointment of Josée Prévost to the position of Senior Financial Analyst (FI-03) with Human Resources and Skills Development Canada (HRSDC) for the period of February 21, 2011 to February 20, 2012. The complainant, Kristian Rochon, filed a complaint regarding this appointment under s. 77(1)(b) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (the PSEA) on August 1, 2011.

2 In written allegations filed with the Public Service Staffing Tribunal (the Tribunal) prior to the hearing, the complainant alleges that the respondent, the Deputy Minister of HRSDC, abused its authority in the appointment process. More specifically, the complainant alleges that the choice of a non-advertised process was unnecessary and that he was discriminated against on the basis of sex.

3 The respondent replies that the choice to use a non-advertised appointment process was made in accordance with the PSEA and departmental policy governing the choice of appointment process. The appointee was assessed and determined to be the right fit for appointment to this position. It denies discriminating against the complainant on the basis of sex.

4 The complainant provided notice to the Canadian Human Rights Commission (CHRC) in accordance with s. 78 of the PSEA that he intended to raise an issue involving the interpretation of application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.Prior to the hearing, the CHRC informed the Tribunal that it would not attend or make submissions in this matter.

5 For the reasons that follow, the complaint is dismissed. The complainant did not appear at the hearing of his complaint. The hearing proceeded in his absence and the Tribunal finds that the allegations have not been proven.

Background

6 On April 5, 2012, the Notice of Hearing in this matter was issued to the parties. The hearing was scheduled for July 10-11, 2012 in Ottawa, Ontario, to begin at 9:30 a.m.

7 On April 27, 2012, notice of a pre-hearing teleconference was issued to the parties. The pre-hearing teleconference was scheduled for May 23, 2012. On May 22, 2012, Danielle Lafleur, a Labour Relations Officer with the Association of Canadian Financial Officers (ACFO) contacted the Tribunal. She indicated that ACFO had been representing the complainant, but was unable to obtain instructions from him, and as a result, they were withdrawing their representation.

8 From that time forward, the Tribunal communicated with the complainant using his personal email address.

9 On May 23, 2012, the pre-hearing teleconference was convened. The respondent and the Public Service Commission (PSC) were both present. The complainant did not appear or participate.

10 On May 23, 2012, the Tribunal issued a letter of direction to the parties. In part, it summarized information received during the pre-hearing teleconference from the parties in attendance. The letter indicated the name of the witness the respondent intended to call and stated that the PSC had not yet determined whether it would attend the scheduled hearing. It also directed the following: first, that the complainant provide the names of his witnesses by May 30, 2012; second, that the parties advise the Tribunal’s Registry by June 8, 2012, whether simultaneous official languages interpretation would be required and whether accommodation measures would be required during the hearing; and third, that by June 26, 2012, the parties conclude the exchange of the documents they intended to produce at the hearing and the jurisprudence they intended to rely on in their arguments.

11 The complainant did not respond or comply with the direction to provide the names of his witnesses by May 30, 2012. On May 31, 2012, the Tribunal issued instructions to the parties stating that the remaining requirements of the letter of direction of May 23, 2012, had to be met. The parties were reminded that the hearing was scheduled for July 10-11, 2012, at 9:30 a.m.

12 The Tribunal notes that it did not receive any direct communication from the complainant following the withdrawal of his representative. The Tribunal’s Registry continued to communicate to him through the personal email address that had been provided and sent him copies of all communication including the documents and jurisprudence provided by the respondent and the PSC in compliance with the letter of direction of May 23, 2012.

13 On July 10, 2012, the hearing was convened as scheduled at 9:30 a.m. When the complainant did not appear, the hearing was briefly adjourned in case the complainant had been inadvertently delayed. It reconvened at 9:45 a.m. The complainant was not in attendance. There is no record that he communicated with the Tribunal or its Registry at any time to indicate any issue with the date or his attendance at the hearing.

14 The respondent presented a motion at the hearing to dismiss the complaint, submitting that as the complainant did not appear at the hearing to produce any evidence to support his allegations, there is no case to which to respond and the complaint should be dismissed.

Analysis

15 Section 29 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116 (the Regulations) provides that:

29. If a party, an intervenor or the Canadian Human Rights Commission, if it is a participant, does not appear at the hearing of a complaint or at any continuance of the hearing and the Tribunal is satisfied that notice of the hearing was sent to that party, intervenor or participant, the Tribunal may proceed with the hearing and dispose of the complaint without further notice. (emphasis added)

16 A review of the record confirms that the Notice of Hearing, issued on April 5, 2012, was sent to the complainant’s then representative as well as the complainant himself. Subsequent communication from the Tribunal to the complainant including the letter of direction of May 23, 2012, Notice of Venue of May 29, 2012, email from the Tribunal’s Registry of May 31, 2012, and Amended Notice of Venue of June 12, 2012, confirmed the date and time of the hearing, and, without exception, was sent to the complainant at his personal email address.

17 The Tribunal is satisfied that the complainant received proper notice of the hearing of his complaint.

18 The Tribunal interpreted s. 29 of the Regulations in Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020:

[24] The Tribunal is of the opinion that the word “hearing” should be given its ordinary meaning, that is, either an oral hearing or a paper hearing. Furthermore, the words “dispose of the complaint without further notice” in section 29 of the PSST Regulations indicate that it refers to the portion of the complaint process where the Tribunal will make a decision on the complaint.

[...]

 [33] Since the complainant provided allegations, the wording of section 29 of the PSST Regulations applies and clearly specifies that the Tribunal may proceed with the hearing without further notice and dispose of the complaint.

19 Based on the foregoing, the Tribunal will proceed to dispose of the complaint on the basis of the available information.

20 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal determined that it is the complainant who bears the burden of proof in hearings before the Tribunal (see paras. 49, 50 and 55). In order for the complainant to meet this burden, it is necessary for him to present sufficient evidence for the Tribunal to determine, on a balance of probabilities, whether a finding of abuse of authority is warranted.

21 In Broughton, the Tribunal found at para. 50 that: “It is not sufficient for a complainant to make bold statements in the complaint and allegations claiming abuse of authority without supporting these allegations with evidence from witnesses, facts and/or documents.”

22 In the present case, the complainant has submitted allegations but he has not tendered evidence to support these allegations. Therefore, the Tribunal finds that the complainant has not met the burden of proving that he was discriminated against on the basis of sex or an abuse of authority in choosing a non-advertised appointment process.

23 In closing, the Tribunal admonishes the complainant for his lack of courtesy toward all of the participants involved in this complaint process. Significant time, costs and effort were unnecessarily expended.

Decision

24 For all of these reasons, the complaint is dismissed.

Joanne B. Archibald
Member

Parties of Record

Tribunal File:

2011-0642

Style of Cause:

Kristian Rochon and the Deputy Minister of Human Resources and Skills Development Canada

Hearing:

July 10, 2012
Ottawa, Ontario

Date of Reasons:

July 13, 2012

APPEARANCES:

For the complainant:

Kristian Rochon

For the respondent:

Karen L. Clifford

For the Public
Service Commission:

Trish Heffernan
(written submissions)