FPSLREB Decisions

Reasons for Decision

Introduction

1 Martin Rosenthal, the complainant, filed two complaints of abuse of authority under s. 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (PSEA). The complaints concern appointments with the Federal Economic Development Agency for Southern Ontario (FedDev) in Kitchener, Ontario, to the positions of AS-02 Administrative Services Officer and CR-04 Administrative Services Clerk. Both appointments were made from the pool of qualified candidates in advertised appointment process 2010-ESO-FIN-IA-0110 for the AS-02 position of Administrative Services Officer (the AS-02 appointment process).

2 It is the complainant's view that the President of FedDev, the respondent, abused its authority in the application of merit as the assessment board for the AS-02 appointment process was biased against him. Secondly, he asserts that there were irregularities in the assessment process. Lastly, he believes that the respondent wrongly made a CR-04 appointment from the AS-02 pool of qualified candidates.

3 The respondent denies that any abuse of authority occurred. It states that the complainant failed to meet the essential qualifications established for the AS-02 appointment process. It maintains that the assessment process was based on merit. Finally, as the CR-04 position was similar to the AS-02 position, the respondent appropriately relied on the results of the AS-02 appointment process to appoint a qualified candidate to the CR-04 position.

4 The Public Service Commission (PSC) did not appear at the hearing, and presented a written submission in which it discussed relevant PSC policies and guidelines. It took no position on the merits of the complaints.

5 Prior to the hearing of these complaints, the complainant provided notice in accordance with s. 78 of the PSEA to the Canadian Human Rights Commission, indicating that he intended to raise an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. However, at the outset of the hearing, he advised the Tribunal that he was withdrawing his allegation of discrimination. Accordingly, the Tribunal did not consider it further.

6 For the reasons that follow, the complaints are dismissed. It has not been established that the assessment board was biased against the complainant or that the assessment process was not based on merit. Further, it has been shown that the Job Opportunity Advertisement (JOA) for the AS-02 appointment process expressed the intention to create a pool of qualified candidates that could be used for appointment to similar positions. It has not been shown that the CR-04 appointment was inconsistent with the terms of the JOA.

Issues

7 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority by demonstrating bias against the complainantin the AS-02 assessment process?
2. Did the respondent abuse its authority in the assessment of candidates?
3. Did the respondent abuse its authority by making the CR-04 appointment from the AS-02 pool of qualified candidates?

Analysis

Issue I:  Did the respondent abuse its authority by demonstrating bias against the complainant in the AS-02 assessment process?

8 Linda Cousineau, Chief Financial Officer of FedDev, was the delegated manager for the AS-02 and CR-04 appointments. She testified that when she arrived at FedDev in March 2010, it was a new federal agency and she initially focussed on hiring a management team and filling key positions. The AS-02 position was critical to providing administrative services as the agency grew. Accordingly, Ms. Cousineau prepared a work description and initiated the appointment process. She assigned Chris Bates and David Schwindt to the assessment board and they were joined by Karen Falat, A/Human Resources Advisor.

9 The complainant was a candidate in the AS-02 process. After his application was screened in and he successfully completed a written examination, he was invited to an interview (the AS-02 interview) scheduled for January 13,7nbsp;2011. On January 8, 2011, he requested the names of the assessment board members and on January 10, 2011, Ms. Falat provided him with their names. The complainant testified that he expressed no concern about the composition of the assessment board at that time.

10 At the AS-02 interview, the complainant recognized Ms. Bates and Mr. Schwindt as they had interviewed him for a deployment opportunity with FedDev (the deployment interview) several months earlier. He believes that Ms. Bates exhibited hostility toward him during the deployment interview by questioning whether he could lift 25 pounds and whether he had been able to find a job anywhere else. Nonetheless, when he recognized Ms. Bates and Mr. Schwindt at the AS-02 interview, he elected to continue and did not comment on their presence or object to proceeding. He explained in his testimony that he felt that it was their duty to recuse themselves based on their participation in the earlier deployment interview and not his responsibility to speak up. Moreover, he thought that if he had wished to express a concern, he would have had to direct it to Ms. Bates, as he understood that she was the hiring manager.

11 In the complainant's opinion, he excelled during the AS-02 interview. The presence of Ms. Bates and Mr. Schwindt did not influence his performance. He noted the body language and affirming nods that he received from the assessment board members.

12 On January 20, 2011, FedDev notified the complainant that his candidacy would not be given further consideration as he did not receive a pass mark for the essential qualification of judgment. On January 25, 2011, the complainant requested informal discussion and it took place on January 26, 2011, with Ms. Falat. During informal discussion and in an email sent that day to Ms. Falat, the complainant stated his view that he could not have received a fair assessment from Ms. Bates and Mr. Schwindt.

He wrote that:

In light of the fact that they had knowledge of my previous meeting with them, I would have expected them to recuse themselves. I don't feel that I was able to get an unbiased and impartial evaluation by your board.

13 Ms. Falat testified that the complainant told her of his concern about Ms. Bates and Mr. Schwindt on January 26, 2011, during informal discussion and in the email, but he provided no more detail to her other than his concern that he had been interviewed by them once before. Ms. Falat stated that FedDev was a small agency and, as a result, it was common for managers to serve repeatedly on assessment boards. When the complainant expressed unease on the basis that Ms. Bates and Mr. Schwindt had participated in the earlier deployment interview, she did not view this as a ground on which they should have withdrawn from the interview.

14 Ms. Bates testified that she was an Industry Canada employee who had been providing service part-time to FedDev during its early stages. She recalled that she first met the complainant at the deployment interview where they discussed a CR-04 mailroom position. She confirmed that when they met for the AS-02 interview, the complainant expressed no concern about her presence or the composition of the assessment board. She asserted that, in her view, the earlier deployment interview had no impact on her assessment of the complainant for the AS-02 position.

15 Mr. Schwindt also testified concerning the deployment interview. He acknowledged that he had participated in the deployment interview and the decision not to offer a position to the complainant at that time.

16 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal determined that it is the complainant who bears the ultimate burden of proof in s. 77 complaints (see paras. 49, 50 and 55). In order for the complainant to meet this burden, it is necessary for him to present sufficient evidence for the Tribunal to determine, on a balance of probabilities, whether a finding of abuse of authority is warranted.

17 The Tribunal finds no evidence of actual bias on the part of the assessment board. The Tribunal must, therefore, determine whether the evidence is sufficient to support an allegation of reasonable apprehension of bias.

18 In Denny v. Deputy Minister of National Defence, 2009 PSST 0029, at para. 125, the Tribunal referred to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 (QL), which sets out the test for reasonable apprehension of bias at p. 394 (S.C.R.):

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ...[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.

19 The Tribunal in Denny also referred to the more recent articulation of the test set out in Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities, [1992] 1 S.C.R. 623, [1992] S.C.J. No. 21 (QL), at para. 22 (QL), and applied it to the circumstances of that complaint. Based on the jurisprudence, the test for reasonable apprehension of bias in a staffing complaint can be formulated as follows: Would a reasonably informed bystander looking at the process reasonably perceive bias on the part of one or more of the persons involved in the assessment of the complainant?

20 Applying the test to the circumstances of the present case, the Tribunal finds that a reasonably informed bystander would not perceive bias on the part of Ms. Bates and Mr. Schwindt against the complainant. The fact that he was not chosen for the previous deployment does not establish by itself an appearance of bias, even when considered with the complainant's assertion that Ms. Bates adopted an aggressive tone in the deployment interview. Moreover, if the complainant believed that their presence hindered his opportunity to be properly assessed at the interview, he might have raised the issue in a timely way, that is to say when he first learned their names or before he underwent the interview. He admits he did not take steps when he learned their names or when he attended the interview. He delayed until the results of the AS-02 interview were known and only then did he object to the presence of Ms. Bates and Mr. Schwindt on the sole basis that they had conducted the deployment interview. At no time did he suggest to the respondent that they were hostile toward him. On the contrary, before the Tribunal he spoke of his excellent performance and the feedback he perceived from the assessment board during the interview. If the complainant felt that he could not be treated fairly, he had the opportunity to address this concern before proceeding with the interview. While he indicated that he was reluctant to speak to Ms. Bates about his concern because of the deployment interview, he was not limited to speaking with Ms. Bates, whether or not she was the hiring manager. For example, the JOA provided contact details for human resources.

21 The Tribunal finds that the evidence taken as a whole does not establish a reasonable apprehension of bias. There is no foundation for a finding that it is more likely than not that Ms. Bates and Mr. Schwindt, consciously or unconsciously, would not assess the complainant fairly in the AS-02 appointment process.

Issue II:  Did the respondent abuse its authority in the assessment of candidates?

22 The complainant is of the view that there were errors in the AS-02 assessment. He testified that he became aware during informal discussion of two alleged deficiencies. Firstly, he stated that there was no overall pass mark for the AS-02 interview and, secondly, there was no pre-determined correct response for the judgment question. It is his position that these are errors which constitute abuse of authority.

23 Mr. Schwindt referred to the rating guide in his testimony. The rating guide indicates that the interview assessed six separate merit criteria including judgment. For the judgment question, it lists thirteen assessment criteria rather than a single, correct response. Mr. Schwindt testified that the complainant failed to meet the required minimum for judgment as his answer provided a narrow approach to answering the question. He made judgments and indicated that he could not complete the tasks set out. Referring to the assessment criteria, Mr. Schwindt stated that the complainant's answer did not reflect the nature and scope of the problem or address the issues of prioritization, delegation and seeking assistance, as expected. Instead, the complainant's answer indicated that he was waiting for authorization before proceeding.

24 Ms. Bates also testified concerning the complainant's response to the judgment question. She stated that the assessment board was looking for a response that showed taking action by setting priorities, speaking to the people involved, and executing tasks. The complainant's answer, however, showed that he was waiting for approval before acting, and this was not what was required.

25 With respect to the answer for the judgment question, the Tribunal notes that the rating guide defined the assessment criteria to be applied to a candidate's response. It has not been shown that the assessment criteria were incorrect or improperly applied. Mr. Schwindt and Ms. Bates explained the deficiencies in the complainant's response, with reference to those criteria. Their evidence was not challenged.

26 The Tribunal also finds that the concerns raised by the complainant with regard to an overall pass mark do not establish an abuse of authority. As the Tribunal held in Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 0044, at para. 35,merit requires that an individual meet each of the merit criteria established by the Statement of Merit Criteria (SMC). In the present case, the interview assessed six different merit criteria. Therefore, in the circumstances of this case, if the assessment board had used one overall score for the interview, it would not have been able to determine whether or not a candidate attained a pass mark for the individual merit criteria. However, because a pass mark was established for each merit criterion, it could be shown whether a candidate in the AS-02 appointment process met the pass mark for each merit criterion before being found qualified. (See, for example, Rochon v. Deputy Minister of Fisheries and Oceans, 2011 PSST 0007, para. 62)

Issue III:  Did the respondent abuse its authority by making the CR-04 appointment from the AS-02 pool of qualified candidates?

27 The complainant takes the view that the CR-04 and AS-02 positions are not similar. Therefore, the SMC for the AS-02 appointment process cannot be used to establish merit for appointment to the CR-04 position. Further, the complainant argues that the appointee, Caroline Marion, was never formally subject to workforce adjustment and, as such, her appointment to the CR-04 position from the AS-02 pool was an abuse of authority.

28 The JOA for the AS-02 appointment process states that “(a) pool may be created to staff similar positions”. The complainant's view is that the CR-04 is a clerical position in a different occupational group and it cannot be considered similar to the AS-02 officer position. He relies on an unrelated JOA for an EN ENG-05 position which stipulated that the resulting pool of qualified candidates “may be used to staff similar positions at the same or lower level (EN ENG-04)” to support his view that similar positions must be within the same occupational group.

29 Lesley Hoffman, Senior Human Resources Advisor with FedDev, testified that she recommended the appointment of Caroline Marion to the CR-04 position to Ms. Cousineau. Ms. Hoffman knew that Ms. Marion occupied a CR-03 position that was slated to be eliminated from FedDev during an upcoming reorganization. Considering Ms. Marion's situation and the fact that she was a qualified candidate in the AS-02 pool, Ms. Hoffman recommended the appointment for several reasons: the AS-02 JOA stated that the pool could be used for similar positions, the two work descriptions contained the same type of functions, and, in her opinion, they required comparable qualifications.

30 Ms. Cousineau testified that when she became aware that the CR-04 position would shortly become vacant, she urgently needed to staff it because the CR-04 position provided mailroom services for FedDev. When Human Resources explained Ms. Marion's situation and the option of appointing her to the CR-04 position from the AS-02 pool, Ms. Cousineau considered that it reflected an efficient and cost-effective solution to staffing the position and avoiding a work force adjustment situation.

31 Ms. Cousineau testified concerning the work descriptions for the AS-02 and CR-04 positions. She noted the similarity in client service results as they were defined in the work descriptions. This included the areas of accommodation, procurement, assets and materiel management, security, occupational health and safety. Both positions report directly to the Manager, Administrative Services. Ms. Cousineau stated that although the AS-02 position requires greater knowledge and depth than the CR-04 position, the experience required for both positions is very close and the incumbents work hand in hand.

32 Mr. Schwindt testified that he was also aware of the circumstances of Ms. Marion and the recommendation to appoint her to the CR-04 position. Mr. Schwindt stated that although the positions have different levels of responsibility, the qualifications for them are similar, if not identical. In his view, a candidate who qualified in the AS-02 appointment process was “undoubtedly” qualified for the CR-04 position.

33 Ms. Cousineau signed a Human Resources Action Request for the appointment of Ms. Marion to the CR-04 position. The rationale explains that Ms. Marion occupied a CR-03 position for which there was no further operational need. It notes that Ms. Marion was also a qualified candidate for the higher level AS-02 position, and that the JOA for the AS-02 appointment process indicated the intent to create a pool to staff similar positions. The rationale states that the CR-04 and AS-02 positions, although classified in different groups, are similar and that the SMC for the AS-02 process is appropriate for the appointment to the CR-04 position. It describes how the public service staffing values of merit, non-partisanship, transparency and fairness are addressed in the appointment, stating that the use of the AS-02 pool is efficient, cost-effective, and alleviates a potential workforce adjustment situation.

34 The Tribunal finds that the evidence does not establish an abuse of authority in the selection of a candidate from the AS-02 pool for appointment to the CR-04 position as the positions are similar. There is no definition of “similar” in either the PSEA or the Public Service Employment Regulations (SOR/2005-334), and it is uncontested that the CR-04 position is classified lower than the AS-02 position. The New Shorter Oxford English Dictionary (1993) defines “similar” as “having a resemblance or likeness; of the same nature or kind.” Following this definition, in many respects, the AS-02 and CR-04 positions are similar. Organizationally, the two positions are related: they are located in the same branch and report to the same manager. The client service results set out in the respective work descriptions are closely connected. The Tribunal accepts the uncontested evidence of witnesses who stated that the positions require the same qualifications to produce client results that significantly overlap, although the AS-02 position entails greater knowledge and depth.

35 The Tribunal is not persuaded by the complainant's assertion that clerical and officer positions are mutually exclusive or that similar positions must be within the same occupational group. In the circumstances of the present case, the Tribunal finds that the evidence concerning organizational structure, duties and qualifications provides a relevant measure of whether the positions are similar. It shows a “resemblance or likeness” that encompasses both positions. The CR-04 and AS-02 positions are indeed of the same nature or kind. A JOA for a different appointment process, which indicates that the pool of qualified candidates can be used for appointments to a lower level within the same occupational group, is not evidence of a limitation of general application to all appointment processes. Rather, it is a description of the use that may be made of the results in that process.

36 Finally, the Tribunal notes that the rationale for the CR-04 appointment clearly states that Ms. Marion's selection is based on her qualification in the AS-02 pool and not on a workforce adjustment situation. The elimination of her position is forecast in the rationale, indicating that it is one of the considerations supporting her appointment. The Tribunal finds no error in including this information.

37 The Tribunal finds no abuse of authority in making the CR-04 appointment from the AS-02 pool of candidates. The evidence shows that the appointment to the CR-04 position falls within the terms of the JOA.

Decision

38 For all of these reasons, the complaints are dismissed.

Joanne B. Archibald
Member

Parties of Record

Tribunal Files:

2011-0126, 2011-0129

Style of Cause:

Martin Rosenthal and the President of the Federal Economic Development Agency of Southern Ontario

Hearing:

July 19-20, 2012
Toronto, Ontario

Date of Reasons:

August 28, 2012

APPEARANCES:

For the complainant:

Louis Bisson

For the respondent:

Lesa Brown

For the Public
Service Commission:

Trish Heffernan (written submissions)