FPSLREB Decisions

Reasons for Decision

Introduction

1 Lise Maclean, the complainant, alleges that the respondent, the Secretary of the Treasury Board, abused its authority when it selected her for lay-off without assessing her. She asserts that her EX-01 position is similar to another EX-01 position in the Chief Information Officer Branch (CIOB) of the Treasury Board Secretariat (TBS). Consequently, she submits that the respondent was required to conduct an assessment of merit to determine who would be retained and who would be laid off. The complainant also alleges that her disability was a factor in the respondent's decision not to assess her for possible retention and, therefore, constituted discrimination.

2 The respondent asserts that the complainant's position is unique and, consequently, she was not selected within the meaning of the lay-off provisions in the Public Service Employment Act, S.C. c. 22, ss. 12, 13 (PSEA). The respondent therefore submits that the complainant is not entitled to make this complaint to the Public Service Staffing Tribunal (the Tribunal) and that the Tribunal has no jurisdiction to consider it.

3 The Public Service Commission (PSC) submits that where the deputy head has determined that a unique position is surplus to requirements, no selection is required and, consequently, no complaint can be made to the Tribunal. It submits that the Tribunal has no authority to determine whether a complainant occupies a unique position or one that is similar to or performs duties that are similar to another position. The PSC also submits that abuse of authority must be given the same meaning under s. 65 of the PSEA as it is given under s. 77 of the PSEA. Moreover, notwithstanding the Tribunal's considerable case law and recent Federal Court of Appeal jurisprudence, the PSC continues to assert that the Tribunal must find that a manager acted intentionally for a complaint of abuse of authority to be substantiated. An exception to the requirement for intent is when there is a finding of discrimination.

4 After considering the evidence set out below, and for the reasons that follow, the Tribunal concludes that the respondent did not abuse its authority since there was no requirement to conduct a merit-based assessment in the circumstances of this lay-off.

Background

5 The complainant was appointed on June 21, 2010, to the position of Director, Strategic Planning and Coordination at the EX-01 group and level. The title of this position was changed to Director, Committees, Administration and Planning (CAP position) shortly after the complainant's appointment. Initially, the complainant reported to Corinne Charette, Chief Information Officer (CIO), and received daily direction from Pierre Boucher, Deputy Chief Information Officer (DCIO). In the fall of 2010, the CIOB was reorganized and the complainant reported to Mr. Boucher.

6 On November 26, 2010, Ms. Charette and Mr. Boucher met with the complainant and told her that she was being removed from her position and arrangements had been made for her to report to another section in the CIOB. The complainant declined the arrangement and continued to report to work in the CAP position. After two more meetings with Ms. Charette and Mr. Boucher, the complainant was placed on leave and sent home in early December 2010.

7 On December 14, 2010, the complainant filed a grievance claiming that she had been either dismissed without cause or deployed without her consent. The respondent maintained its position that the complainant had been temporarily assigned until, on March 6, 2012, it conceded before the Public Service Labour Relations Board (PSLRB) that the complainant had been deployed without her consent as required by the PSEA. On April 26, 2012, the PSLRB ordered that the complainant be returned to the CAP position.

8 The complainant remained away from work from early December 2010 until the spring of 2011, when she worked for a short time as Director, Human Resource Business Solution Pilot Project in the CIOB. On May 31, 2011, the complainant again left the workplace.

9 On November 23, 2011, the respondent notified the complainant that her position, Director, CAP, in the CIOB would become surplus to requirements effective November 30, 2011. The notice provided the complainant with two options: to accept a transition agreement and leave the core public administration, or to seek another position in the public service with assistance from the respondent and the PSC. The notice further stated that, if the complainant chose to stay in the public service and was not successful in finding another position, she would be laid off on May 30, 2012.

10 Ms. Maclean filed her complaint with the Tribunal under s. 65(1) of the PSEA on December 1, 2011.

Issue

11 The Tribunal must determine whether the respondent abused its authority by not assessing the complainant for selection for lay-off.

Analysis

The lay-off provisions in the PSEA and the Public Service Employment Regulations, SOR/2005-334 (PSER)

12 The Tribunal's mandate is found in s. 88(2) of the PSEA: “The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83.”

13 Sections 64 and 65 of the PSEA are relevant to this complaint. They read as follows:

64. (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.

(2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head's organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.

(3) Subsection (1) does not apply where employment is terminated in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act.

(4) An employee ceases to be an employee when the employee is laid off.

65. (1) Where some but not all of the employees in a part of an organization are informed by the deputy head that they will be laid off, any employee selected for lay-off may make a complaint to the Tribunal, in the manner and within the time fixed by the Tribunal's regulations, that his or her selection constituted an abuse of authority.

(2) No complaint may be made under subsection (1) against the decision to lay off employees, the determination of the part of the organization from which employees will be laid off or the number of employees to be laid off from that part.

(3) A complainant, every other employee in the part of the organization referred to in subsection (1), the deputy head and the Commission – or their representatives – are entitled to be heard by the Tribunal.

(4) Where the Tribunal finds a complaint under subsection (1) to be substantiated, it may set aside the decision of the deputy head to lay off the complainant and order the deputy head to take any corrective action that it considers appropriate, other than the lay-off of any employee.

(5) Where a complaint raises an issue involving the interpretation or application of the Canadian Human Rights Act, the complainant, in accordance with the regulations of the Tribunal, notify the Canadian Human Rights Commission of the issue.

(6) Where the Canadian Human Rights Commission is notified of an issue pursuant to subsection (5), it may make submissions to the Tribunal with respect to that issue.

(7) In considering whether a complaint is substantiated, the Tribunal may interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value.

(8) Corrective action may include an order for relief in accordance with paragraph 53(2) (e) or subsection 53(3) of the Canadian Human Rights Act.

14 Section 21 of the PSER sets out how the selection of employees for lay-off is to be done. It reads as follows:

21. (1) If the services of one or more employees of a part of an organization are no longer required in accordance with section 64 of the Act, the deputy head shall assess the merit of the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify, in accordance with merit, the employees who are to be retained having regard to the continuing functions of that part of the organization and the remaining employees who are to be advised that their services are no longer required and are to be laid off.

(2) Deputy heads shall record the reasons for the selection of those employees to be retained.

(3) Despite subsection (1), the determination of employees to be laid off in the Ship Repair group in the Department of National Defence shall be based on a combination of merit and seniority factors and shall be made in consultation with the bargaining agents concerned.

(4) Despite subsection (1), if an employee volunteers to be laid off, the deputy head may advise the employee that their services are no longer required and may lay off the employee.

(5) The deputy head shall, in writing, inform

1. the Commission of the names of the employees who are to be laid off in accordance with this section and the proposed date of the lay-off; and
2. any employee who is advised that their services are no longer required, of the proposed layoff date.

(6) Subsections (1) to (5) do not apply to an employee who is appointed for a specified period.

(emphasis added)

15 In Tran v. Commissioner of the Royal Canadian Mounted Police, 2012 PSST 0003, the Tribunal held that one of the conditions for filing a complaint under s. 65(1) of the PSEA is that complainants must have been informed that they will be laid off. In this case, there is no dispute that the complainant meets this condition. She was informed in a letter dated November 23, 2011, that she would be laid off effective May 30, 2012.

16 In Molander v. Commissioner of the Royal Canadian Mounted Police, 2007 PSST 0042, the Tribunal examined ss. 64 and 65 of the PSEA, together with s. 21 of the PSER, and concluded that the other condition for filing a complaint under s. 65(1) of the PSEA is that the complainant must have been selected for lay-off.

17 The Tribunal found in Molander that s. 21 of the PSER contemplates a situation where there are two or more employees in similar positions or performing similar duties at the same occupational group and level in the part of the organization identified by the deputy head and, while not all the positions will be eliminated, the number of positions will be reduced. This provision requires the deputy head to identify the employees to be retained in accordance with merit. Employees who have not been retained are selected for lay-off. Thus, the Tribunal held that the crux of s. 21 of the PSER centres on selecting some employees from a larger group. The employees selected for lay-off are then given the right to bring a complaint to the Tribunal concerning their selectionfor lay-off.

18 The evidence in Molander demonstrated that the complainant's position was unique and, when it was identified as surplus to requirements, there was no requirement to select her from among other employees. As a result, the Tribunal found that the circumstances of that case did not give rise to the right to bring a complaint to the Tribunal under s. 65(1) of the PSEA. The complainant did not raise any argument with respect to the Tribunal's finding in Molander or its applicability to this case.

Does the Tribunal have the power to determine whether employees are in similar positions or performing similar duties in the same occupational group and level?

19 The respondent asserts that the complainant's position is unique. The complainant submits that her CAP position is similar to the Director, Strategic Policy and Planning (SPP position) in the CIOB.

20 The PSC makes two arguments related to this matter. First, it submits that the Tribunal has no jurisdiction to consider allegations related to a deputy head's determination of the part of the organization from which employees will be laid off.

21 Section 64(2) of the PSEA gives exclusive authority to a deputy head to identify a part of their organization from which employees will be laid off. Section 65(2) of the PSEA expressly prohibits a complaint to the Tribunal against the deputy head's determination of the part of the organization from which employees will be laid off. According to the evidence before the Tribunal, the part of the organization identified by the respondent in this case is the CIOB.

22 The PSC also submits that the Tribunal has no authority to determine whether positions are similar or have similar duties. It argues that this is a classification matter under the Financial Administration Act, R.S.C., 1985, c. F-11 (FAA), and, accordingly, the Tribunal is precluded from making these determinations.

23 The PSC refers to the Supreme Court of Canada's decision in ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4, at para. 35, which states that administrative tribunals are statutory creations that cannot exceed the powers that were granted to them by their enabling statutes.

24 The Tribunal has held in several decisions, beginning with Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 0027, that it has no authority to decide classification matters. The process of classifying a position may include a comparison of the position in question to others. However, the similar nature of positions is not strictly a classification matter. It is quite common for job opportunity advertisements for positions in the public service to state that the appointment process will be used to staff similar positions.

25 Section 22(2)(i) of the PSEA specifies that the PSC may make regulations “respecting the manner of laying off employees and the manner of selecting employees to be laid off, for the purposes of section 64.” The PSC introduced the concepts of similar positions and similar duties into the context of lay-offs in s. 21 of the PSER, where it set out the process or manner of selecting the employees who will be laid off in a part of a deputy head's organization.

26 According to s. 21 of the PSER, the requirement to assess employees arises when employees occupy positions that are similar or perform similar duties at the same group and level in the part of the organization where the deputy head has identified that lay-offs will occur.

27 The issue of whether the respondent was required to assess the complainant in order to select her for lay-off is central to this case. Therefore, it is necessary for the Tribunal to determine whether the complainant's position was similar to another position in the CIOB or whether she performed duties that were similar to those performed by another EX-01 employee in the CIOB.

Was the complainant in a similar position or performing similar duties to another EX-01 position in the CIOB?

28 Section 21 of the PSER stipulates that, in a lay-off situation, an assessment is required when employees are employed in similar positions or are performing similar duties in the same occupational group and level.

29 The respondent and the PSC submit that similar positions must be at the same occupational group and level, just as similar duties must be performed at the same group and level. In this case, the two positions at issue are both in the same occupational group and level, namely, EX-01. Therefore, it is not necessary for the Tribunal to address this argument.

30 The complainant submits that the Tribunal should give a broad meaning to “similar” because a narrow definition will remove an employee's right to be assessed. The respondent submits that the Tribunal should give strong deference to a deputy head, who is best placed to determine whether positions or duties are similar.

31 There is no definition of “similar” in either the PSEA or the PSER. In each case, based on the evidence before it, the Tribunal will make findings of fact as to whether positions are similar and/or employees at the same occupational group and level are performing similar duties.

32 None of the parties to this complaint made submissions regarding the difference between similar positions and similar duties. However, since s. 21 of the PSER uses both terms, the Tribunal concludes that they have different meanings.

33 The work descriptions, classification evaluations, and Statements of Merit Criteria (SMC) for both positions were entered as evidence. As well, the Tribunal heard testimony from the complainant, Mr. Boucher and Michael Smith, a former Senior Policy Advisor on EX Classification with the Office of the Chief Human Resources Officer (OCHRO) in the TBS.

34 The positions in this case are both EX-01 Director positions reporting to the Deputy Chief Information Officer (DCIO) in the Chief Information Officer Branch (CIOB). As stated previously, the complainant occupied the position of Director, Committees, Administration and Planning (CAP position). The other EX-01 position at issue is the Director, Strategic Policy and Planning (SPP position). While there are some similarities between the two positions, based on the evidence presented and for the reasons that follow, the Tribunal concludes that they are significantly different; they are not similar positions nor do they have similar duties.

(i) Are the duties of the two EX-01 positions similar?

35 The complainant asserts that part of her role in the CAP position was the coordination and alignment of policies. She submits that those duties were removed from the CAP position and that the SPP position was created, in essence, based on those duties. She testified that she passed her files on to the incumbent of the SPP position when he was appointed, and she referred specifically to her role as coordinator for the Policy Oversight Committee (POC). When questioned further, the complainant acknowledged that the extent of her work for the POC was contacting presenters, preparing binders and briefing the DCIO.

36 When the CAP work description was written in 2005, it included responsibility for secretariat support for several senior interdepartmental committees and for expert briefings on policy and planning issues. However, Mr. Boucher explained that Ms. Charette had been reviewing the EX structure since joining the CIOB in early 2009. He testified that, by March 2010, they had decided that internal operations and coordination of government-wide policy were not a good fit within one position. Although the CAP work description was not changed, Mr. Boucher testified that when he conducted the appointment process from which the complainant was appointed to the CAP position in June 2010, the assessment was focussed on corporate administration of internal operations. With respect to the POC, Mr. Boucher stated that, in 2010, the incumbent of the CAP position was expected to coordinate the documents and brief him, but was not expected to provide policy advice.

37 Mr. Boucher explained that the TBS establishes and oversees government-wide policies on behalf of the Treasury Board, which is a committee of Ministers. The CIOB is responsible for Information Management and Information Technology (IM/IT) policies. This is not a new role for the CIOB; however, as a result of the Administrative Services Review and the federal budget in 2010, significant changes were going to be made affecting the delivery of IM/IT services in the public service. Consequently, a complete review of IM/IT policies would be needed.

38 Mr. Boucher testified that, when the complainant was appointed to the CAP position, the new SPP position was already being developed to coordinate and develop strategies for CIOB policies.

39 On August 30, 2010, Ms. Charette presented a new proposed CIOB organization structure to the TBS Senior Human Resources Committee (SHRC), which included the new SPP position. The SHRC was concerned that there may be overlap between the new proposed SPP position and two other EX-01 positions in the CIOB, including the CAP position. The SHRC decided that the SPP would be established as a one-year  term position, pending a review of the three positions.

40 Mr. Boucher explained that the SHRC's perception of an overlap was based only on the position titles, not a full description of the duties of the positions. Nevertheless, Mr. Boucher testified that he believed there was a risk that the CAP position would not retain its EX-01 level and that he spoke with the complainant after the SHRC meeting to inform her that her position would be reviewed.

41 If a review of the three positions was done, it was not entered into evidence during this hearing. The SPP position was written, classified and staffed by October 2010. In June 2011, Ms. Charette returned to the SHRC seeking approval to convert the SPP position to indeterminate and eliminate the CAP position and one other vacant EX-01 position.

42As stated, Michael Smith is a former Senior Policy Advisor on EX Classification with the OCHRO in the TBS. Mr. Smith has worked in classification since 1977. In 1980,he was among the first to be trained in the use of the Hay Plan, which is used to evaluate EX positions. He was on the classification committee that converted senior public service positions to the EX group. Mr. Smith is currently in a pre-retirement assignment supporting classification program projects in the OCHRO. The respondent tendered Mr. Smith as an expert witness in EX classification. The complainant's counsel did not challenge Mr. Smith's expertise, but asked that the Tribunal consider his employment relationship with the TBS when weighing his evidence.

43 The Tribunal qualified Mr. Smith as an expert in EX classification.

44 Mr. Smith has been employed at the TBS in various roles, all within the OCHRO. He explained that EX positions in the TBS are classified by employees in a division of Human Resources that provides human resources services internally to the TBS and does not report to the OCHRO. The OCHRO provides human resources policy guidance and advice to all core public service departments, including Human Resources at the TBS.

45 Mr. Smith had reviewed the CAP and SPP work descriptions prior to testifying at the hearing. He stated that, from a classification perspective, there is no similarity between the two work descriptions. In his opinion the CAP position is responsible for a variety of internal activities, and manages several subordinate positions and a budget of $2M. The SPP position is responsible for policy-related strategies and tools, and manages a small team and a budget of $700,000. In Mr. Smith's opinion, there is no overlap between the duties of the two positions.

46 Mr. Smith explained that, under the Hay Plan, a classification specialist examines the work of a position against three factors, namely, know-how, problem solving, and accountability. There is a chart for each factor that defines the different dimensions and degrees of the factor. Know-how measures how much knowledge is needed for how many things and how complex each thing is, the requirement to manage activities directly or functionally, and the nature of relationships that must be established and maintained. Problem solving measures how much guidance or assistance is available and how complex and time-sensitive issues are. Accountability measures the degree of independence to make decisions, the size of the budget controlled, and the degree to which decisions affect results. The individual charts also have points corresponding to each degree. A work description is evaluated by comparing it to the definitions in the chart. The points are added to arrive at the level within the EX group.

47 Mr. Smith was questioned about the fact that the CAP and SPP positions have been evaluated at the same degree for both dimensions of one factor and at the same degree for some dimensions of the other factors. According to Mr. Smith's uncontested testimony, that is not unusual and it does not reveal the specific nature of the duties performed.

48 Mr. Smith testified that the classification evaluations and the point ratings for the CAP and SPP positions reflect the same differences between the duties as the work descriptions do.

49 Mr. Smith acknowledged that he was unable to provide his opinion on any changes that have occurred since the work descriptions were written. Nevertheless, his testimony supports the respondent's contention that the duties of the CAP and SPP positions were different when the SPP position was created.

50 Also, the Tribunal finds that the complainant has failed to show that the lower point rating demonstrates that the SPP position consists of a portion of the CAP position's duties.

51 There is no question that policy-related duties were removed from the CAP position and put into the SPP position; however, they do not reflect the complete set of duties of the SPP position. The Tribunal finds that policy is the focus of the SPP position. The policy role of the SPP position is deeper and much more complex than the policy role in the CAP work description. The Tribunal also finds that the complainant has not demonstrated that she performed, or was expected to perform, the policy role required in the SPP position.

52 The complainant testified that, eventually, most of the work that her employees had performed under her direction as the Director, CAP, was moved to the SPP position. She enumerated which functions had moved to the SPP position using a list of CAP responsibilities from a presentation she had prepared in July 2010. She stated that only human resources operations, and possibly human resources planning had not moved to the SPP position.

53 The Tribunal notes that the presentation the complainant used was one that she prepared one month after her appointment to the CAP position in the summer of 2010. More importantly, she confirmed in her testimony that she was out of the workplace and was monitoring changes in the reporting structure through email. She did not produce any emails in support of her claims about the organizational changes that were made.

54 The respondent produced an organization chart showing the organization structure as it was under the CAP position. The chart shows two AS-07 positions reporting directly to the CAP position and several positions reporting to each AS-07. Mr. Boucher testified that, when the CAP position was eliminated in November 2011, the two AS-07 positions initially reported directly to him. He stated that he had since moved one of the AS-07 positions to report to the SPP position. A second organization chart dated May 10, 2012, confirms Mr. Boucher's testimony.

55 The Tribunal finds that all of the corporate administrative functions formerly under the CAP position, which include finance, contracting and procurement, and facilities management as well as human resources, now report directly to Mr. Boucher. The work that was moved to the SPP position involves committee and event coordination, and one position responsible for web content and communications.

56 A deputy head may eliminate an entire function or program and all the associated positions. In this case, however, the Tribunal concludes that the respondent did not eliminate the entire function; it determined that the work performed under the CAP position would continue, but that the work no longer needed to be overseen by a dedicated director. The work being performed under the CAP position had to be moved. The fact that some of the work was moved to the SPP position does not change the Tribunal's finding that the CAP and SPP positions had different duties, particularly in light of the nature of the work that was moved to report to the SPP position.

57 An examination of the two work descriptions, together with the evidence presented concerning the organizational changes within CIOB, leads the Tribunal to find as a fact that the CAP position is responsible for the internal operational functions and plans of the CIOB - the branch corporate administration, whereas the SPP position is responsible for analyzing the requirement for new or updated CIOB policies, based on the changing IM/IT environment, creating and implementing strategies for the development and delivery of CIOB policies, and ensuring that CIOB policies are integrated and aligned with other Treasury Board policies.

58 Thus, in summary, the work descriptions and the testimony of witnesses with respect to the organizational changes within CIOB support a finding that the CAP and SPP positions have different roles, and that the incumbents of the positions were not performing similar duties. In light of Mr. Smith's employment history with the TBS, the Tribunal has not relied exclusively on his evidence. Nevertheless, Mr. Smith's expert testimony, which was not challenged, provides additional support for the findings with respect to the duties of the two positions.

(ii) Are the two EX-01 positions similar?

59 As noted earlier in these reasons, it is quite common for job opportunity advertisements for positions in the public service to state that the appointment process will be used to make appointments to similar positions.

60 In accordance with s. 30(2) of the PSEA, appointments must be based on merit. Having considered many appointment-related complaints, the Tribunal has established that the SMC lists, among other things, the qualifications that are essential for the work to be performed. Candidates in an advertised appointment process, for instance, are all assessed against the essential qualifications.

61 Similarly, when an assessment for selection for lay-off must be done, s. 21 of the PSER stipulates that it must be based on merit. It follows then that employees involved in such a selection process must all be assessed against the qualifications that are essential for the work that is remaining.

62 The two SMC's in this case are contemporaneous. The CAP SMC was established in or about March 2010, for the appointment process from which the complainant was appointed. The SPP position was established effective August 2010, and was filled by October 2010. Accordingly, the Tribunal concludes that the SPP SMC was established in the fall of 2010.

63 The Tribunal heard testimony from the complainant and Mr. Boucher about the qualifications that were assessed during the appointment process for the CAP position. However, in considering whether the CAP position and the SPP position are similar, for the purpose of determining whether a merit-based assessment was required, the Tribunal finds that the SMCs for the two positions contain the most relevant and reliable information.

64 There are similarities between the SMC for the CAP position and the one for the SPP position. As the complainant points out, all EX positions have the same set of competencies. For the purpose of determining whether an assessment is required, however, it would be improper to examine similarity based solely on competencies, without considering the other essential qualifications that the deputy head has established for each of the positions.

65 The Tribunal finds that there are significant differences between the essential education, experience and knowledge qualifications that were established for the two positions at issue here. For example, the CAP position requires experience in “managing operations, a program or a service offering (internal)”, whereas the SPP position requires “extensive experience in the development and management of government-wide policies and programs.” Also, the CAP position requires knowledge of “Government of Canada's Management policies,” while the SPP position requires knowledge of “associated Treasury Board Secretariat policies, directives and regulations as they relate to IM/IT, Security, Access to Information and Privacy.” At a very basic level, the CAP position requires a secondary school diploma and the SPP position requires a university degree.

66 The complainant argues that she is qualified to perform the duties of the SPP position and there is no evidence to suggest otherwise. That, however, is not the issue here. Section 21 of the PSER stipulates that an assessment for selection for lay-off is required when there are similar positions or similar duties being performed. It is only then that employees' qualifications are relevant.

67 An examination of the respective SMCs for the two positions supports a finding of fact that the CAP position and the SPP position are not similar for the purpose of conducting a merit-based assessment.

68 The Tribunal, therefore, has examined the facts presented in this case and finds that the CAP and SPP positions are not similar and the incumbents of the two positions are not performing similar duties. Accordingly, the Tribunal concludes that the respondent was not required to conduct a merit-based assessment in order to select the complainant for lay-off.

Allegation of discrimination

69 Section 65(7) of the PSEA grants the Tribunal the authority to interpret and apply the Canadian Human Rights Act, R.S.C., 1985 c. H-6 (CHRA), in considering whether a lay-off complaint is substantiated.

70 The complainant did not allege discrimination in her complaint, which she filed on December 1, 2011. When she filed her written allegations in this case, on January 23, 2012, she stated that she had previously raised an issue of discrimination in the workplace, based on a perceived disability and she reserved the right to make an allegation of discrimination on the prohibited ground of disability in this case. On April 27, 2012, the complainant notified the Canadian Human Rights Commission (CHRC) of this complaint under s. 65(1) of the PSEA, in accordance with s. 65(5) of the PSEA and s. 20 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 as amended by SOR/2011-116.

71 In her notice to the CHRC, the complainant stated that she had developed a medical condition over the course of 2011 and that the respondent had failed to address her accommodation needs. She also stated that the respondent's decision to lay her off was based, at least in part, on her disability.

72 At the beginning of this hearing, the complainant's counsel confirmed that there is no allegation regarding a perception of a disability in this case. He stated that he would proceed based on an allegation that the respondent had failed to accommodate the complainant's disability.

73 In the course of presenting the complainant's evidence, her counsel stated that the allegation before the Tribunal is that the respondent decided not to assess the complainant for possible retention based, at least in part, on her disability.

74 The respondent submits that the complainant has failed to demonstrate that she suffers from a disability. It submits that since the complainant has not established that she was subject to discriminatory treatment based on a prohibited ground, the respondent had no duty to accommodate her.

75 For the Tribunal to substantiate the allegation of discrimination, the complainant must first establish her disability. For the following reasons, the Tribunal finds that the complainant did not demonstrate that she had a disability within the meaning of the CHRA when the respondent informed her that she would be laid off.

76 The complainant testified that she had asked to be removed from the CIOB several times, including for medical reasons. She entered into evidence email correspondence between her and Mr. Boucher dated May 30 and June 1, 2011, in which she wrote that her current work assignment was increasingly jeopardizing her health and that she and her medical professional were considering whether she required extended sick leave. She also stated in that email that the work was a “very, very poor fit” to her interests and abilities.

77 Another email the complainant tendered as evidence was one she sent to Mary McLaren, Executive Director of Human Resources, on August 31, 2011, in which the complainant stated that she had taken sick leave to avoid the project work she had been forced to do, on the advice of her doctor. She went on in that email to say that she could not “justify wasting Health Canada resources to say it is not healthy for someone to spend 10 months in career limbo, performing useless work they dislike in a Branch where they are in conflict and litigation against their senior management.”

78 The complainant attended an Independent Medical Examination (IME) on December 14, 2011. She testified that the independent medical examiner had assessed her as fit to work full-time in a position similar to the CAP position and had recommended that she work in a different department.

79 A careful review of the IME report reveals that the physician, who is a general practitioner, evaluated the complainant as insightful, intelligent and articulate, with “no pressure of speech, no flight of ideas and no evidence of any intrusive thoughts”. He explains the complainant's absence from the workplace by describing the complainant's views, feelings and understanding of what was happening in the workplace. He states that the complainant was fit to work and had the mental and physical ability to fulfil the duties described by the respondent, and he states that the complainant considers the CIOB environment to be toxic to her.

80 With respect to her return to work, the physician states that the complainant was “willing to return to work in a work situation in which she would not feel psychologically or emotionally threatened” and that “it would seem that her return to work with her current senior-level management personnel would be difficult for her”. In concluding, he states that the complainant is “willing and able to return to work, and, hopefully a similar position in a different department would be available for her in the future”.

81 The Tribunal finds that the medical examiner did not conclude that the complainant suffered from a medical condition or a disability. The extent of the complainant's testimony on this subject is her statement that she had developed a medical condition.

82 The Tribunal finds that the complainant's evidence is insufficient to establish that she suffered from a disability. The complainant's allegation that the respondent decided not to assess her based, in part, on discrimination is not substantiated.

83 The evidence demonstrates that the respondent was not required to assess the complainant for possible retention because her CAP position was not similar to the SPP position and the duties she was performing were not similar to those performed by the incumbent of the SPP position.

The context in which the complainant's lay-off occurred

84 The complainant submits that the respondent's decision not to assess her for possible retention lacks objectivity, given the problems that existed between her and senior management in the CIOB.

85 The complainant entered documents into evidence related to her deployment out of the CAP position in November, 2010, a harassment complaint she filed against Mr. Boucher, complaints she made to the CHRC and the Public Sector Integrity Commissioner, and three complaints of harassment made against her. As well, the Tribunal heard testimony from the complainant, Mr. Boucher, Ms. McLaren and Serge Jetté, Manager, Conflict Management Services for the TBS.

86 The Tribunal notes that the respondent conceded and the PSLRB found that the complainant was improperly deployed without her consent in November, 2010. The complainant's harassment complaint against Mr. Boucher was investigated and deemed unfounded in December 2011. The CHRC and the Public Sector Integrity Commissioner declined to investigate the complaints submitted to them and, as of the date of this hearing, the harassment complaints against the complainant were unresolved.

87 The complainant also raised concerns that she was denied benefits associated with her surplus priority status. However, the evidence shows that the complainant was removed from the PSC's system for priority referral to appointment opportunities when, on March 8, 2012, she accepted an offer of deployment to an EX-01 position within the CIOB. She was not put back into the priority system because she subsequently declined the deployment in writing on March 28, 2012.

88 Mr. Boucher testified that he was involved in other lay-off situations in the CIOB; some required assessment for retention or lay-off and some did not. He also testified that there was no discussion within the CIOB or in the TBS about whether an assessment was needed in this case because everyone involved knew that the CAP position was not similar to another position in the CIOB. Mr. Boucher was thoroughly examined on the subject of the decision not to assess the complainant and he maintained that it was really not a decision, given that the circumstances did not require an assessment.

89 The evidence clearly shows that there was conflict in the CIOB. However, the evidence also clearly demonstrates that there was no requirement for the respondent to assess the complainant in the context of this lay-off.

90 The Tribunal finds that the evidence is insufficient to support a finding that conflict between the complainant and senior management in the CIOB was a factor in the decision not to assess the complainant for lay-off.

Final Matter

91 While not necessary for the purposes of this decision, the Tribunal will address the PSC's submission regarding abuse of authority.

92 Abuse of authority is not defined in the PSEA; however, s. 2(4) provides the following:“For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism”.

93 Accordingly, the Tribunal agrees with the PSC to the extent that abuse of authority has the same meaning in relation to complaints made under s. 65(1) of the PSEA as it does for those made under s. 77 of the PSEA.

94 The Tribunal's first decision on abuse of authority was Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008. At paras. 56 to 74 of Tibbs, the Tribunal provided a comprehensive analysis of abuse of authority under the PSEA. The Tribunal concluded that “[t]o require that a finding of abuse of authority be linked to intent would lead to situations that clearly run contrary to the legislative purpose of the PSEA”.

95 Nevertheless, the PSC has consistently argued that for the Tribunal to make a finding of abuse of authority, except where discrimination is found, it must be demonstrated that there was a deliberate improper use of authority. The PSC makes the same argument in this case.

96 In support of its argument, the PSC relies on the decision of the Federal Court in Lavigne v. Canada (Deputy Minister of Justice), 2009 FC 684, specifically paras. 61 and 62, which read as follows:

[61] Therefore, a complaint of abuse of authority will be deemed founded where bad faith or personal favouritism was established. The principle of bad faith requires an element of intent.

[62] Abuse of authority requires more than error or omission, or even improper conduct.

97 The PSC is relying on jurisprudence from the Federal Court, which engaged in a cursory analysis, although the Federal Court of Appeal subsequently provided a comprehensive analysis of abuse of authority, including whether the limited class rule confines abuse of authority to only findings of bad faith or personal favouritism, a comparison of the English and French versions of the relevant provisions in the PSEA, and the relationship of abuse of authority to the concepts of errors, omissions and improper conduct. Based on its analysis, the Federal Court of Appeal, in Kane v. Canada (Attorney General), 2011 FCA 19, rejected the narrow meaning of abuse of authority that had been advanced – the same one that is argued by the PSC here. The Federal Court of Appeal in Kane determined, among other things, that it is unreasonable to conclude that Parliament intended that a finding that a respondent had made an irrational or arbitrary decision would not be an abuse of authority.

98 While the Supreme Court of Canada has granted leave to appeal in Kane, the Federal Court of Appeal's decision remains the current state of the law with respect to abuse of authority, as also confirmed recently by the Federal Court in Canada (Procureur général) c. Lahlahi, 2012 CF 601, at paras. 31 to 41.

Decision

99 For all these reasons, the complaint is dismissed.

Merri Beattie
Member

Parties of Record

Tribunal File:

2011-1178

Style of Cause:

Lise Maclean and the Secretary of the Treasury Board of Canada Secretariat

Hearing:

May 9, 10 and 11, 2012
Ottawa, ON

Date of Reasons:

August 22, 2012

APPEARANCES:

For the complainant:

James Cameron, Solicitor
Raven, Cameron, Ballantyne and Yazbek

For the respondent:

Lesa Brown
Counsel, Department of Justice

For the Public
Service Commission:

Marc Séguin
Counsel, Department of Justice