FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Daniel Spirak, has filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under s. 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA). The complaint alleges that the respondent, the Deputy Minister of Public Works and Government Services Canada (PWGSC), abused its authority in the application of merit by extending through a non-advertised process the acting appointment of John Carson to the position of Head, Construction Management (EG-07). The complainant contends that the respondent acted in bad faith and personally favoured Mr. Carson.

2 The respondent submits that there was no abuse of authority in extending this non-advertised acting appointment. It contends that the chosen process complies with the PSEA and PWGSC's Policy on Non-Advertised Appointments, adding that Mr. Carson is fully qualified and that the extension of his appointment respects the merit principle.

3 The Public Service Commission (PSC) did not attend the hearing. It submitted written arguments concerning the intersection of PSC Policy compliance with abuse of authority, compliance in the appointment process, and corrective action. The PSC appointment policy states that appointment decisions must be based upon merit, non-partisanship and are guided by the values of fairness, transparency, representativeness and access.

4 For the reasons set out below, the complaint is substantiated. The Tribunal finds that the complainant established on a balance of probabilities that the respondent demonstrated personal favouritism and bad faith in making the appointment to that position and, thus, abused its authority.

Background

5 In October 2008, the respondent conducted an internal advertised process to staff the position of Head, Construction Management, at the EG-07 group and level. The primary duty of the Head, Construction Management is to supervise trade persons under him or her such as electricians, carpenters, and tinsmiths. The role of the Head is to contract out work to those trade persons and ensure that the contracts conform to the rules and regulations of the government. During the 2010 year, the work involved approximately $10 million covering approximately 500 contracts. The Head is also responsible for managing those under him and reports to upper management.

6 Since this appointment process did not yield any qualified candidates, the respondent held an external advertised process in June 2009. That process did not produce any qualified candidates either. Neither the complainant nor Mr. Carson applied to either of these advertised processes.

7 In February 2009, the respondent appointed Mr. Carson to the position of Acting Head, Construction Management for a period of four months less a day, using a non-advertised process. Mr. Carson was re-appointed on an acting basis in June 2009 for another six months. On July 29, 2009, an Information Regarding Acting Appointment was posted naming Mr. Carson as the appointee for the period of June 1, 2009, to December 31, 2009. Since the external appointment process that began in June 2009 failed to produce qualified candidates at its conclusion in October 2009, the respondent used a non-advertised internal process to appoint Mr. Carson a third time from December 31, 2009, to December 30, 2010. There was no notification of appointment for the purpose of recourse for this appointment. Thus, the complainant filed his complaint once he confirmed the term of Mr. Carson's acting appointment.

8 On April 15, 2010, the complainant, who was employed as a Construction Co-ordinator at the EG-04 level at PWGSC and reported to the same manager as Mr. Carson, filed his complaint with the Tribunal in relation to this year long appointment.

Issue

9 The Tribunal must determine whether the respondent abused its authority by demonstrating personal favouritism and bad faith in appointing Mr. Carson on an acting basis from December 31, 2009, to December 30, 2010

Analysis

10 The complainant claims that the respondent showed personal favouritism in appointing Mr. Carson. Section 77(1)(a) of the PSEA states that a complaint can be filed alleging that a deputy head abused its authority in the exercise of its delegated authority to make an appointment on the basis of merit under s. 30(2) of the PSEA. Abuse of authority is not defined in the PSEA. However, s. 2(4) of the PSEA offers the following guidance, “for greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism”. It is personal favouritism and not other types of favouritism that constitutes abuse of authority (Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007 at para. 39).

11 In Brown v. Canada (Attorney General), 2009 FC 758, the Federal Court found that the Tribunal must consider all relevant evidence in determining if there has been an abuse of authority in an appointment process, and that it must look at the overall perspective of the events that occurred. See also Brown v. Deputy Minister of National Defence, 2010 PSST 0012.

12 The complainant relied on the following evidence to support his claim that the manager's actions demonstrated personal favouritism towards Mr. Carson.

Late notifications of appointments

13 The complainant alleged that the respondent did not comply with its duty under s. 48 of the PSEA to provide notice of Mr. Carson's appointments. Section 48 provides that in a non-advertised process, persons in the area of selection must be informed of the name of the person being considered for appointment, after the assessment of candidates has been completed. This notice must be followed up by a notice providing the name of the person who is actually appointed or proposed for appointment.

14 In relation to the June 2009 appointment, the complainant submitted that the notice of appointment was issued late, on July 29, 2009. Furthermore, in relation to the December 2009 appointment, the respondent failed to issue a notice announcing the 12-month reappointment of Mr. Carson.

15 The respondent replied that although tardy, the notification of July 29, 2009, constituted sufficient notice of the June–December 2009 acting appointment. The respondent also contends that there was in fact notice given of the December 2009 appointment, referring specifically to the November 5, 2009, minutes of a meeting of the Maintenance Support Management Committee (MSMC). The MSMC minutes of the May 21, 2009, meeting state that the manager is looking to find a way to extend Mr. Carson in his position as Acting Head of Construction. The minutes of the November 5, 2009, meeting state that Mr. Carson's acting appointment will be extended until March 31, 2010.

16 The complainant testified that he and one of his colleagues, André Côté, were interested in being appointed as Acting Head Construction. The complainant first expressed his interest in late June 2009 to his manager, Luc Bazinet, by sending an email to Mr. Bazinet's executive assistant. Mr. Bazinet is the Manager of Maintenance Support Services (MSS). He was the sub-delegated manager with the authority to make these appointments at that time. Among his duties as manager of MSS, Mr. Bazinet chaired the MSMC, which met regularly and reported its activities to staff by circulating the minutes of its meetings.

17 The complainant followed up on July 22, 2009, with an email to Mr. Bazinet and explained to him that he wanted to be considered for the acting position that had been filled by Mr. Carson. Following an exchange of emails on July 22, 2009, the complainant arranged to meet with Mr. Bazinet to discuss this request. Following the meeting, the complainant understood that the manager was surprised at his interest in the position. His manager informed him that any change in the acting appointment would involve a certain amount of time. The complainant was given the impression that his candidacy for an acting appointment as Head of Construction Management would be considered in the future in the event that there was a need to staff the position on an acting basis.

18 The minutes of the MSMC management meeting held on November 5, 2009, noted that since there were no successful candidates for the advertised EG-07 position, Mr. Carson's acting appointment would be extended until “March 31, 2010 or until a successful candidate is appointed.” Apart from these minutes there was no formal announcement of the extension of Mr. Carson's acting appointment.

19 On November 26, 2009, Mr. Bazinet signed a staffing action request to extend Mr. Carson for a 12-month period beginning December 31, 2009, and ending December 30, 2010. On the same date, Mr. Bazinet signed the rationale supporting a non-advertised appointment process that listed a three-month term as the duration of this acting appointment. The length of the term of this acting appointment was later changed in the rationale supporting Mr. Carson's re-appointment to 12 months to correspond with the term contained in the staffing action request.

20 On January 5, 2010, the complainant wrote to Mr. Bazinet to apply for the acting position of Head of Construction Management. He proposed a start date of April 1, 2010. When the complainant had met Mr. Bazinet in the summer of 2009 to discuss acting as Head, Construction Management, Mr. Bazinet told him that it took several months to make a change in that position.

21 The complainant followed up his request for an acting appointment with another email to his manager on January 10, 2010. In this email he asked how long it would take to complete the external staffing process. He also asked about the justification that was used to extend Mr. Carson's acting appointment.

22 Between January 17, 2010, and January 26, 2010, Mr. Bazinet replied to the complainant's emails. In his replies, Mr. Bazinet informed the complainant that Mr. Carson would continue to act until a successful candidate was appointed from a new external staffing process. Mr. Bazinet also indicated that criterion No. 3 of PWGSC's Non-Advertised Appointment Process Policy was used in the rationale to extend Mr. Carson's acting appointment. Criterion 3 of the policy states that “within a reasonable area of selection, potential candidates are known well enough to be considered and ensure a fair and complete assessment of their qualifications against the established merit criteria without the need to advertise the employment opportunity.” Furthermore, Mr. Bazinet said that this is the busiest period of the year in the section and to appoint Mr. Carson for such a short term acting appointment would create a backlog in the workload of Mr. Carson's successor, would require training for that person in order to have delegation of authority to approve leave and overtime and would delay all projects within the section. Mr. Bazinet stated that it would not be feasible, operationally.

23 Mr. Bazinet confirmed that Mr. Carson would continue to act until a qualified candidate is appointed from the advertised process. He estimated that this process would be completed by the end of April or mid-May 2010 because “lots of candidates were screened in and therefore the written examination and correction will take some time.”

24 The Tribunal finds that the complainant's allegation that the notices of appointment were late is supported by the evidence. Section 13 of the Public Service Employment Regulations (PSER) prescribes that written notice of an acting appointment should include the name of the person who has been appointed, the right to file a complaint and the available grounds for complaint.

25 The evidence established that the notice of the February 22, 2009, appointment was made on March 12, 2009, through the minutes of the MSMC. The notice pertaining to the June 1, 2009, appointment was published on July 29, 2009. More importantly, however, although the staff in the section were advised in the November 5, 2009, minutes of the MSMC that Mr. Carson would be reappointed until March 31, 2010, or until the position is filled on an indeterminate basis, there was no notification of the acting appointment in the Publiservice notifications, nor did the notice indicate to the persons in the area of recourse of their right and grounds to make a complaint.

26 In considering this issue, the Tribunal is mindful that the respondent has considerable discretion in dealing with staffing matters. The cases have established that the Deputy Head has discretion to choose between an advertised and a non-advertised process. The Tribunal has established that merely choosing to conduct a non-advertised process is not an abuse of authority in itself. A complainant must establish, on a balance of probabilities, that the decision to choose a non-advertised appointment process was an abuse of authority. See, for example: Rozka v. Deputy Minister of Citizenship and Immigration Canada, 2007 PSST 0046.

27 In addition, the Deputy Head or delegate can consider only one person for appointment, as was done in this case. See s. 30(4) of the PSEA. However, this does not mean that the Deputy Head has absolute discretion. Section 77(1)(b) of the PSEA provides for a direct challenge of the discretionary choice between an advertised process and a non-advertised process, on the ground of abuse of authority.

28 The Tribunal finds that the respondent contravened s. 13 of the PSER in a number of ways. In particular, it delayed the notification of Mr. Carson's appointment, it provided inaccuracies about the true length of the appointment, and it issued an improper notice of appointment that failed to inform those in the area of selection of their right to complain to the Tribunal nor give the grounds upon which the complaint could be made. See Sherif v. Deputy Minister of Agriculture and Agri-Food Canada, 2006 PSST 0003 at paras. 16-18. There was a lack of transparency caused by the late notification in the June 2009 appointment and the absence of a proper notice for the December 31, 2009, appointment of Mr. Carson. This lack of transparency restricted the employees' rights of recourse to the Tribunal.

The respondent's failure to initially appoint Robert Sheldrick to the position

29 The complainant contends that according to the respondent's established practice, Mr. Carson should not have been initially appointed to the position in February 2009. This appointment occurred prior to the December 2009 appointment to which the complaint directly relates. However, although the Tribunal's jurisdiction to determine whether a complaint of abuse of authority has been substantiated is limited to the appointment process to which a complaint relates, the Tribunal can consider such prior evidence as part of the context of the complaint to determine if they can shed light on the appointment process at issue. See Brown v. Commissioner of Correctional Service of Canada, 2011 PSST 0015 at para. 28.

30 As mentioned earlier, while the processes to appoint someone on an indeterminate basis were ongoing, the respondent decided to staff the position on an acting basis. The complainant testified that traditionally, Robert Sheldrick, another employee in the section, acted in the stead of the previous manager whenever he was away on holiday or could not attend work for any other reason. On this occasion in February 2009, however, the respondent broke with tradition and appointed Mr. Carson instead. Mr. Sheldrick testified that the first appointee to act in the EG-07 position was bilingual and since the position was designated as bilingual essential (BBB), he understood the rationale for that appointment when it occurred in the fall of 2008. However, that appointment did not “work out” and Mr. Carson was then appointed in February 2009. Mr. Sheldrick felt slighted at this point since Mr. Carson was not bilingual. As a result, Mr. Sheldrick decided that he would not express any further interest in the position, to the respondent.

31 The respondent points out that although Mr. Sheldrick was not selected to act in the position at this time, Mr. Carson was not the manager's first choice. Mr. Bazinet said that he considered more than one person to act in the position following the departure of the incumbent. Mr. Bazinet testified that after assessing the potential candidates to act in the position, he narrowed his choices to four individuals. He initially selected a bilingual employee who headed another organization within the branch to fill the post, but that appointment did not work out well and that employee was re-assigned to other duties. When this first acting appointee was reassigned, Mr. Bazinet considered and contacted three other individuals for appointment. Two of these individuals were bilingual. The first person was not interested, and the second was on sick leave. As a result, Mr. Bazinet appointed Mr. Carson, the last remaining person from the narrowed list of potential appointees that he had assembled.

The claim that altering the Statement of Merit Criteria provided an advantage to Mr. Carson

32 Mr. Carson's initial acting appointment in February 2009 was for a period of less than four months. Consequently, the respondent was not required to produce a written rationale for the appointment (s. 14 of the PSER). When the respondent sought to renew his appointment in June 2009 for an additional period of six months, the complainant contends that the respondent altered the Statement of Merit Criteria (SMC) to a lower standard by, amongst other things, removing the bilingual imperative requirement, to benefit Mr. Carson.

33 The respondent points out that a temporary parallel position with less stringent language requirements was created in June 2009 due to the urgent need to ensure operational continuity as the position could not remain vacant. It added that when Mr. Carson's four-month appointment ended, he was assessed against the essential qualifications in the SMC for this parallel position.

34 The Tribunal finds that in addition to the less stringent language requirements, there were other significant changes to the SMC that benefitted Mr. Carson. First, the education qualifications in the June non-advertised process were expanded from those of the June advertised process to include “licensing at the journeyman level in … instrumentation.” This set of education qualifications was also contained in the 2010 advertised process. As a result of these changes, Mr. Carson became eligible to apply for the advertised external appointment process.

35 The Tribunal also finds that the non-advertised parallel position that was created in June 2009 and renewed in December 2009 called for only half of the experience requirements of the advertised parallel position. If it were in fact a parallel position, one would have expected to see the identical experience requirements in the non-advertised position. The Tribunal notes that there were no changes in the work that Mr. Carson was asked to perform and his roles and responsibilities were similar to those described in the advertised appointment process.

36 Although the position that Mr. Bazinet created in June 2009 was described as a parallel position, the Tribunal finds that the educational and experience requirements developed for the position were so significantly different from the requirements that had previously been attached to the advertised appointment processes that it called for a new assessment of the candidates in the section. The changes to the SMC enlarged the pool of candidates within Mr. Bazinet's section. However, there was no evidence that Mr. Bazinet considered the candidacy of other employees in the section in relation to the SMC. Consequently, there was no assessment to support the assertion in the rationale that Mr. Carson was the only qualified candidate.

The claim that there was only one suitable candidate for the position

37 The respondent's claim in its June and November 2009 rationales that only Mr. Carson possessed all the experience, knowledge and abilities required to perform the position without additional training and/or coaching ignores the unchallenged testimony of Mr. Carson, who stated that apart from the signing authority two other members of the workgroup had the qualifications to act in the Head's absence. The evidence at the hearing indicated that the signing authority deficit could be remedied by a course that was available in a variety of lengths ranging between a half day and five days.

38 Mr. Sheldrick testified that before certain new Treasury Board rules regarding signing were implemented, he had signing authority and had performed as acting Head, Construction Management on numerous occasions and for considerable time periods in the past. In particular he had acted during the illness of the former incumbent to that position. The amount of additional training that he may have required would have been minimal given his background and previous experience. The respondent in its organizational chart recognized his considerable expertise by appointing him as the alternate EG-07 and describing him as an essential employee.

39 The Tribunal finds that Mr. Bazinet was focused on reappointing Mr. Carson. As noted in the May 21, 2009, minutes of the MSMC, Mr. Bazinet was intent on finding a way to extend Mr. Carson in his position as Acting Head of Construction Management. The path that Mr. Bazinet chose to extend Mr. Carson was to create a new unilingual English position with fewer experience requirements and an expanded set of education qualifications. These actions of the manager support the inference that the manager did not conduct a further evaluation of his staff and the complainant against the qualifications of the newly created Acting Head Construction Management position. Instead the manager appointed Mr. Carson to this position in June and December 2009 without further staff assessments.

The claim that renewing Mr. Carson's acting appointment repeatedly provided him with an advantage regarding the indeterminate process

40 One of the essential merit criteria in the advertised appointment process was experience in managing multi-trade technical teams related to construction and managing financial and human resources pertaining to construction projects. The complainant contends that Mr. Carson lacked this experience prior to being appointed to the position on an acting basis in February 2009. The complainant submits that through the repeated renewals of the appointment, Mr. Carson acquired the experience that he lacked, which would assist him in being qualified in the advertised appointment processes to staff the position.

41 The respondent replied that since the SMC for the 2010 external process had changed, Mr. Carson did not benefit from the experience that he gained after he was appointed.

42 The Tribunal finds that the essential qualifications in the SMC for the parallel EG-07 position the respondent created are less stringent in the “Experience” category than the comparable “Experience” category in the external advertised position. There were four areas of experience listed under the job posting that was advertised. Only two of those areas were listed in the “Experience” requirement in the non-advertised parallel position. The non-advertised position did not require experience in managing finances related to construction projects and experience in managing multi-trade teams related to construction. These latter criteria were part of the essential qualifications of the external advertised position. As a result, Mr. Carson was able to acquire the experience in managing finances related to construction projects and experience in managing multi-trade teams related to construction. Therefore, the Tribunal finds that Mr. Carson did benefit from the appointment and obtained an advantage.

The rationales for Mr. Carson's acting appointments – the justification

43 The respondent cited operational continuity to justify the re-appointment of Mr. Carson in December 2009. It cited a crisis that occurred in the fall of 2009 and noted that since Mr. Carson had to deal with the crisis, it delayed the workload of the position. In addition, the respondent points to the evidence of Mr. Bazinet who testified that the workload for the position peaks at the end of the fiscal year which was approaching.

44 The evidence to support the respondent's submission centres on an explosion in a boiler room that supplied power and heat to several buildings on Parliament Hill and the surrounding areas in downtown Ottawa, on October 18, 2009. The explosion claimed the life of an MSS employee. Since the plant was no longer operational the group had to find alternate sources of power and heat for several buildings. As winter was approaching the MSS was under considerable operational pressure to restore heat and power to the buildings serviced by the heating plant. By late November 2009 they had obtained temporary replacement boilers and diverted power from another heating plant to service the buildings. In addition, the cleanup and re-construction work at the Cliff Street heating plant had been contracted out. As a result of their concerted effort to deal with the emergency, the more routine work of the section was set aside resulting in a backlog of work for the MSS as the fiscal year for 2009-2010 came to a close.

45 Although the crisis was over, the Respondent continued to justify the reappointment of Mr. Carson arguing that such an appointment was required to ensure operational continuity. The rationale stated that a replacement for Mr. Carson could not be trained within a reasonable time. This statement was used to justify another reappointment of Mr. Carson to the position for a 12-month period beginning on December 31, 2009.

46 The Tribunal finds that the claim of operational continuity was misplaced in relation to the 12-month extension of Mr. Carson's acting appointment. By December 2009, Mr. Carson had been acting for 10 months in the position. The circumstances of the explosion and the resulting workload prompted the manager to propose a term of three months for the appointment of Mr. Carson. By late November 2009, the immediate crisis had been handled and there was sufficient time to allow the Head, Construction Management to deal with fiscal year-end matters. There was no evidence provided in the justification that there was a need for extensive training to enable someone else to act in the position. The evidence disclosed that there were members in the section who were qualified to act if provided with a brief training period in order to obtain signing authority for contracts. Mr. Carson acknowledged while testifying that there were two individuals who had qualifications for the position.

47 To support the December 2009 reappointment of Mr. Carson, the respondent also states that the proposed acting appointment respects the values of fairness, access and transparency. The November 2009 rationale states that the value of access was respected because “an advertised process is imminent for an EG-07 position and potential candidates will be given the opportunity to prepare and be assessed in order to staff this position.” It also states that it respects the value of transparency because “all potential candidates were advised through a Management Meeting dated November 5, 2009.”

48 In addition, the November 2009 rationale signed by Mr. Bazinet states that the appointment was to a “shortage group” for which there was a demonstrated inability to recruit sufficient numbers of potentially qualified candidates through normal ongoing recruitment practices. Upon review of this statement, the Human Resources Advisor (HR advisor) pointed out that the statement was not supported by the facts. She said that before you can say that there is a shortage in this group, it must be identified as such. The HR advisor suggested the use of criterion 3, namely, that potential candidates could be appointed without the need to advertise the employment opportunity if they are known well enough to be considered and a fair and complete assessment of their qualifications against the established merit criteria can be assured. As a result of these observations and with the approval of the manager, handwritten changes to the rationale were made to reflect the observations contained in the email of the HR advisor.

Access and transparency in the non-advertised appointment process

49 In addition to the handwritten change to the rationale noted above, certain statements in the document were crossed out. The most significant strikeout involved removing the statement in the original document that another advertised process would be launched by December 31, 2009. The other significant change involved altering the length of the appointment from three months to 12 months and deleting the statement that indicated that the appointment is due to a shortage group.

50 The one page rationale asserted that the process “respects the value of access because an advertised process is imminent for the EG-07 position and potential candidates will be given the opportunity to prepare and be assessed in order to staff this position.” It also concluded by stating that “candidates were advised through a Management Meeting dated November 5, 2009.”

51 The Tribunal finds that the value of transparency was not respected because the manager failed to communicate information about decisions accurately, openly and in a timely manner. The November 2009 minutes of the MSMC meeting did not accurately communicate the length of the acting term. It stated a fixed ending date of March 31, 2010, that was not accurate. When it became apparent that the date was no longer accurate, the manager did not correct it in a timely fashion. The evidence indicates that a notice of appointment of the December 31, 2009, appointment was never published.

52 In addition, the manager did not tell the complainant that the term was now 12 months in response to the complainant's January 2010 inquiries about becoming the acting Head of Construction Management.

53 The Tribunal also finds that the manager attempted to dissuade the complainant by downplaying the length of Mr. Carson's December 2009 appointment. In his response to Mr. Spirak's January 2010 inquiries about acting in the position, Mr. Bazinet stated that the external staffing appointment process would end by April-May 2010 and Mr. Carson's acting appointment would also end at that time. Mr. Bazinet also stated that a number of candidates had been screened in and exams were to be scheduled with an anticipated completion date of April-May 2010. In fact, the paperwork for the external staffing appointment process did not begin until September 2010. The Tribunal finds that when Mr. Bazinet told the complainant that the external staffing appointment process would be over by May 2010, he had taken no steps to re-commence the staffing process. Therefore, his comments to the complainant concerning the number of candidates that had been screened in, the scheduling of exams and the anticipated completion date of April-May 2010 had no foundation in fact.

Delays in staffing the position

54 The complainant further argues that the March and November 2009 minutes of meetings conducted by MSS Managers show that as many as 18 staffing actions were initiated and completed during the period that the process to staff the Head position on an indeterminate basis has remained outstanding. The complainant suggests that this demonstrates that the respondent has deliberately and inordinately delayed the completion of this staffing action in order to better enable Mr. Carson to acquire the experience he needs to be qualified for the position.

55 The complainant also alleges that the manager offered no alternative plan for dealing with the position's vacancy within the rationale and justification that was submitted to senior management as the basis for the reappointment of Mr. Carson in December 2009. The argument is that the manager's narrow view of options indicates further personal favouritism. In addition, the complainant states, without elaboration, that the decision to provide for a bilingual non-imperative appointment in the event that a bilingual candidate could not be secured (“run a parallel position”) was designed to confuse and thwart any interest by other employees.

56 The Tribunal finds that there is no merit to this allegation. The evidence disclosed that prior to the December 2009 appointment there were diligent attempts to staff the position. There is no evidence of any scheme by the respondent to delay the process pending or after the December 31, 2009 appointment. The Tribunal finds that by adding a non-imperative bilingual classification to the position, that step enhanced the respondent's chances of filling the position. The information setting out the respondent's intention to staff with a bilingual candidate was clearly set out.

57 However, the complainant introduced documents that showed that the process to obtain the approval of senior management for authorization to initiate an external advertised appointment process with imperative and non-imperative bilingual staffing for positions at the EG-07 level was delayed until the late summer (September 2, 2010). By then, the title of the position had been changed to Head, Technical Services. On September 20, 2010, senior officials gave their approval to start the process with a linguistic profile of bilingual imperative and non-imperative at the BBC levels.

Training only provided to Mr. Carson

58 The complainant alleges that except for Mr. Carson, the respondent's manager cancelled training for his employees to obtain delegation of authority to approve contracts and delegation of authority to approve leave and overtime. The evidence disclosed that Treasury Board had instituted new standards requiring that a training course, G110, be taken as a pre-requisite for managers to exercise the above-mentioned signing authority. According to Mr. Bazinet there was a section in human resources that provided training. He wanted all his department heads to obtain this training. Mr. Bazinet said that this training was, however, only given by priority, based on position, from the top down, beginning with the Deputy Minister. He stated that those in charge of training had authority to decide who received the training. He had recommended that his heads of section receive training and since the demand exceeded the department's capacity to immediately provide it to all staff who desired the training, there was an interval between the request for training and the ability to provide the training. He emphasized that the human resources section made the decision about the order in which the training would be provided and he denied that he cancelled anyone's training.

59 An email exchange between Mr. Bazinet and Sylvie Mathe in February 2010 contextualizes Mr. Bazinet's testimony and adds clarity to the situation. This note was addressed to Mr. Bazinet from Ms. Mathe. She had asked Mr. Bazinet to indicate whether the complainant and other employees perform certain roles either in their substantive positions or temporarily in an acting capacity. She wished to know whether the listed employees performed management functions such as assigning duties to others, approving leave forms and evaluating performance of others. She also asked Mr. Bazinet to confirm whether they would need this authority either in their substantive positions or in an acting or temporary position. Assuming that an employee from the list could be called upon to perform those duties either in their substantive position or in an acting capacity, Ms. Mathe inquired whether the employee would require a course in French or English. She closed by noting that only Mr. Bazinet could answer those questions and asked him to reply as soon as possible. Included in the list was the notation: “Dan Spirak Yes or No?”

60 By the time the hearing began in October, 2011, it appears that neither the complainant, nor Mr. Sheldrick or others in the group had been identified by Mr. Bazinet as requiring the G110 course. In other words, the decision not to name them signalled that in the Manager's opinion they would not be considered for temporary management duty.

61 The Tribunal finds that the manager's decision not to consider providing training to the complainant or any of the other employees who had expressed an interest in the acting position effectively ruled them out for future consideration as acting Head, Construction Management. On the one hand, Mr. Bazinet had indicated to the complainant and to others that he would consider their interest in acting, but his actions created a significant roadblock (essential training) that they would need in order to act in the position. In his rationale to support the re-appointment of Mr. Carson, he stated that it would be inefficient to assign someone who required training or coaching.

Personal business relationship between Mr. Carson and Mr. Bazinet

62 Finally, the complainant claims that there was a personal business relationship between the manager and Mr. Carson. The complainant stated that the two men had had several lunchroom discussions about setting up a company called Bazcar. In addition, the complainant pointed to the fact that Mr. Carson had asked his manager to recruit workers to frame his garage and had provided $8,000 in cash to the manager to pay the workers. The complainant states that Mr. Carson received his appointment approximately five months after that event.

63 Mr. Carson testified that the conversations about creating a company were done in jest. He stated that they had joked about opening a construction coordinating company. He referred to a former employee who had gone out and set up a company called Bascom. They joked that their company would be Bazcar which represented the first three letters of each of their surnames. The Tribunal finds that there is insufficient evidence to conclude that they were planning on going into business together.

64 With respect to the garage, Mr. Carson testified that he had obtained the help of his manager, Mr. Bazinet, to identify workers who could frame it. Mr. Bazinet said that he knew two employees who would do the work. Mr. Bazinet spoke to them about the work, and they agreed to do it on condition that Mr. Bazinet assist them on the job. As a result, Mr. Bazinet spent two weekends helping Mr. Carson. Mr. Carson paid the workers $8,000 by giving the money to Mr. Bazinet, who in turn passed it on to the workers.

65 Mr. Bazinet confirmed Mr. Carson's account. He said that Mr. Carson had informed him that he had poured concrete for his garage and he was looking for someone to frame around the slab to protect it from the winter. Since Mr. Carson could not find anyone he asked Mr. Bazinet if he could find someone. Mr. Bazinet said that he phoned around and found some carpenters who would do it but they needed help. They asked him to participate and he agreed to help put up some walls and a roof for Mr. Carson. Mr. Bazinet also confirmed that he was the conduit for the cash payment from Mr. Carson to the workmen. He said that he did construction work as a hobby. He also said that he wanted to help as a favour and to relax because projects help “get [his] mind off things.” Mr. Bazinet's testimony that he did not personally receive any monetary benefit from this project was unchallenged.

66 The evidence at the hearing established that it was common practice among the tradespersons to help each other with their various personal building projects. For example, Mr. Sheldrick stated that he helped the complainant shingle his roof. In return, the complainant helped him move. Mr. Sheldrick also helped Mr. Carson by building some stairs after Mr. Carson's garage was constructed. However, none of the other examples of helping out with personal projects involved the degree of participation that the manager had in this project and there was no payment or cash involved.

Has the complainant established that the respondent displayed personal favouritism and acted in bad faith with respect to Mr. Carson's re-appointment on an acting basis?

67 On a review of the whole of the evidence the Tribunal finds that the complainant has established the following facts to support the finding that the respondent displayed personal favouritism towards the appointee, acted in bad faith, and thus abused its authority. First, the Tribunal finds that the evidence of Mr. Carson's reappointment reflects a pattern of personal favouritism. There were procedural errors in this appointment as reflected in the failure to give adequate and accurate notice of the December 2009 reappointment. There was an informal advisory on November 5, 2009, which did not accurately describe the length of term, nor the qualifications of the position. Essential information concerning the right of recourse of other employees was also lacking. The respondent never published a notice of the appointment for that position. Furthermore, the manager did not provide training opportunities to others who had the qualifications to act in the parallel position when the opportunity for training arose.

68 In addition, the rationale that was provided to justify the non-advertised appointment in December 2009 did not accurately reflect the circumstances of the appointment. The original document although signed on the same day as the personnel service request misstated the term of the appointment to be three months when the personnel service request called for a 12-month appointment.

69 The change in the length of the term also impacted on the grounds described in the original rationale. The manager had stated that it would be inefficient to offer the job opportunity to someone who needs training or coaching for a three-month appointment. However, on the same day that the manager claimed that it would be inefficient to appoint someone to a three-month term he requested that Mr. Carson be appointed to the position for a 12-month term. The request for a 12-month appointment supports the inference that the manager knew that more than three months would be required to complete the advertised process and the three-month term stated in the rationale would lend credence to the use of the non-advertised appointment process.

70 There were significant misstatements in the November 2009 rationale that was used to justify Mr. Carson's year-long non-advertised appointment. These centred on the criterion for the appointment and the length of the term of that appointment. They indicate that the manager was careless in the appointment process. As noted above, the manager signed the rationale supporting a non-advertised appointment process on November 26, 2009. It stated that the assignment would be for a three-month period beginning December 31, 2009. On the same day the manager signed a personnel service request to appoint Mr. Carson for a 12-month period beginning December 31, 2009.

71 In January 2010, the manager, in discussing Mr. Carson's re-appointment with the complainant, indicated that the appointment would likely end soon and described the stages of an advertised process that he said had begun when in fact that advertised process had not yet started. The manager wrote that an ongoing external advertised process would end by April-May 2010. He noted that Mr. Carson's acting appointment would also end at that time. In fact, the manager had not taken the steps required to begin the advertised process when he made that representation.

72 The Tribunal finds that although there were significant changes to the criterion in the SMC between the advertised position and the parallel position, the manager did not assess the complainant or any of the potential candidates within a reasonable area of selection in June 2009 when he said that Mr. Carson was the only qualified candidate or at the time of the December 31, 2009 appointment. Although the manager was not obliged to consider anyone except the appointee, the manager's stated justifications for the appointment were not supported by the evidence.

73 The appointment of Mr. Carson occurs against a backdrop in which the manager and the appointee, who share the same professional affiliation, discussed, albeit jokingly, the creation of a business enterprise. The manager devoted time to recruit workers to assist the appointee in framing a garage, paid the workers $8,000 in cash and devoted two weekends to help perform the work required. These events have the hallmark of a personal relationship. When this relationship is considered in combination with the serious errors surrounding this appointment, the Tribunal finds that the complainant has established that the respondent abused its authority with respect to Mr. Carson's December 2009 reappointment on an acting basis to the position of Head, Construction Management.

74 The Tribunal also finds that the respondent acted in bad faith when it failed to correct information provided to the complainant and employees in the section about the length of the term of Mr. Carson's acting appointment. Mr. Bazinet wrote to the complainant to say that the advertised staffing process was underway and would likely end by May 2010. In fact, the process did not begin until the late summer and early fall of 2010. The Tribunal finds that when Mr. Bazinet made those statements, he had taken no steps to re-commence the staffing process. Therefore, his comments to the complainant concerning the number of candidates that had been screened in, the scheduling of exams and the anticipated completion date of April-May 2010 had no foundation in fact. This demonstrated bad faith.

75 In addition, the manager led the complainant and Mr. Côté to believe that they would be considered for that acting appointment when he had no intention of providing an acting opportunity to anyone except Mr. Carson. Had he in fact assessed them against the SMC for the parallel position, he could easily have told them when they expressed their interest in the position that he had compared their qualifications to those contained in the SMC and they did not meet the requirements. Instead, in October 2009 he promised to keep Mr. Côté in mind for the next opportunity.

76 For these reasons the Tribunal finds that in making this appointment, the respondent did not conform to the department's own appointment values of access, fairness and transparency, and that the respondent acted in bad faith and demonstrated personal favouritism towards Mr. Carson.

Decision

77 For all these reasons, the complaint of abuse of authority is therefore substantiated.

Order

78 In his submissions the complainant requested that the Tribunal revoke Mr. Carson's appointment, the delegated authority of the manager and his assistant, as well as the current advertised selection process. He also asked the Tribunal to recommend training for the manager and his assistant. In addition, the complainant requested that the Tribunal “ensure [that a] new and unbiased selection board implements a new selection process for the EG -07.” While the Tribunal has broad corrective powers under subsection 81(1) and section 82 of the PSEA when it substantiates a complaint under s.77, corrective measures must relate only to the appointment process at issue in the complaint. (A.G. (Canada) v. Cameron 2009 FC 618).

79 Therefore, when the Tribunal determines that there has been an abuse of authority the corrective action can only be specific to the complaint.

80 Accordingly the Tribunal has authority to revoke the December 31, 2009 appointment. The Tribunal therefore orders the respondent to revoke the appointment of Mr. Carson. This must be done within 60 days.

81 The Tribunal is cognizant of the fact that the appointment has ended. However, this fact does not make the revocation of the appointment moot. In light of the finding that this appointment and the process used was based on personal favouritism the appointment should be revoked. See Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 0035 at para. 192.

82 In relation to the complainant's requests concerning the ongoing advertised process, the Tribunal has no authority to revoke the current advertised selection process nor interfere with any aspect of the ongoing selection process.

83 The Tribunal considered the complainant's submission that the Tribunal make recommendations concerning the manager. In Canada (Attorney General) v. Beyak, 2011 FC 629, the Federal Court confirmed that the Tribunal has jurisdiction to make recommendations. In this case the Tribunal has found that the manager displayed a blatant disregard for certain staffing requirements. In light of this finding, the Tribunal recommends that the respondent provide training or coaching in staffing techniques and procedures to the manager to ensure that future appointment processes are conducted in full compliance with the relevant statutes, regulations and policies.

Eugene F. Williams
Member

Parties of Record

Tribunal File:

2010-0220

Style of Cause:

Daniel Spirak v. the Deputy Minister of Public Works and Government Services Canada

Hearing:

October 4 – 6, 2011
Ottawa, ON
Last document received December 16, 2011

Date of Reasons:

August 7, 2012

APPEARANCES:

For the complainant:

Robert L. Cameron

For the respondent:

Lea Bou Karam

For the Public
Service Commission:

Tricia Hefferman (Written submissions)