FPSLREB Decisions
Decision Information
The complainant was included in a pool of six qualified candidates in an advertised indeterminate appointment process. Four of the candidates were appointed. The complainant alleged in his complaints that the respondent discriminated against him on the basis of his race and national/ethnic origin, and that the respondent retaliated against him after filing his complaints. Decision Applying the Shakes and Israeli tests, the complainant's evidence, if believed and in the absence of an answer from the respondent, would establish a prima facie case of discrimination. The respondent, however, persuasively rebutted the allegations upon which the complainant based his prima facie case. The respondent demonstrated that it had decided to appoint persons who had one of the asset qualifications set out in the Statement of Merit Criteria. The evidence showed that the appointees possessed the asset qualification being sought. The complainant, on the other hand, had failed to provide in his application any information about whether he possessed the asset qualifications. Although the Job Opportunity Advertisement had indicated in the «organizational needs» section that the respondent may give preference to Aboriginal or visible minority persons, the respondent provided a reasonable explanation for not applying this need to these appointments. In addition, the Tribunal found that although some employment data suggested an underrepresentation of visible minorities in the department, the evidence was inconclusive and not of assistance in determining whether discrimination was a factor in the decision not to appoint the complainant. The Tribunal also found that the complainant had failed to demonstrate that the respondent retaliated against him for having filed his complaints with the Tribunal. Complaints dismissed.
Decision Content
- Files:
- 2010-0778 and 2011-0144
- Issued at:
- Ottawa, March 6, 2013
PAUL ABI-MANSOUR
Complainant
AND
THE DEPUTY MINISTER OF ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT CANADA
Respondent
AND
OTHER PARTIES
- Matter:
- Complaint of abuse of authority pursuant to section 77(1)(a) of the Public Service Employment Act
- Decision:
- Complaints are dismissed
- Decision rendered by:
- Kenneth J. Gibson, Member
- Language of Decision:
- English
- Indexed:
- Abi-Mansour v. the Deputy Minister of Aboriginal Affairs and Northern Development Canada
- Neutral Citation:
- 2013 PSST 6
Reasons for Decision
Introduction
1 The complainant, Paul Abi-Mansour, applied for a Human Resources Business Analyst position at the AS-04 group and level in the Department of Aboriginal Affairs and Northern Development Canada (AANDC). Although he met the essential qualifications for this position and was placed in a pool of qualified persons (pool), he was not appointed to a position. The complainant alleges that the respondent abused its authority by discriminating against him on the basis of race and national or ethnic origin, as demonstrated by the respondent’s use of improper assessment methods and the appointment of persons who are unqualified or less qualified than him. He also alleges that the respondent retaliated against him for filing his complaints.
2 The respondent, the Deputy Minister, Aboriginal Affairs and Northern Development Canada, denies the allegations. It contends that the complainant did not demonstrate that he possessed the asset qualifications that were considered in making the appointments at issue.
3 The Public Service Commission (PSC) did not attend the hearing but made written submissions.
4 For the reasons set out below, the Public Service Staffing Tribunal (the Tribunal) finds that the complainant has failed to establish that the respondent abused its authority in this appointment process.
Background
5 On June 23, 2010, the respondent initiated an appointment process (2010‑IAN‑AO-NCR-HR-103777) to fill one position and to establish a pool of qualified candidates for future Human Resource Business Analyst positions. The assessment process consisted of a review of candidate applications, an interview and reference checks.
6 There were 26 applicants to the appointment process. Eleven persons were screened into the process after the review of candidate applications. Following the interviews and reference checks, six persons, including the complainant, were found to meet the essential qualifications and included in the pool.
7 Mr. S, an Aboriginal person, was the first person appointed to an AS-04 position from the pool. There was no complaint concerning this appointment.
8 On December 17, 2010, the respondent issued a Notification of Appointment or Proposal of Appointment (NAPA) for the appointments of Irena Privalova and Danielle Morin from the pool to AS-04 positions in the Human Resources and Workplace Services Branch (HRWSB) of the department.
9 On March 14, 2011, the respondent issued a NAPA for the appointment of Natacha Verner from the pool to an AS-04 position in HRWSB.
10 Following these appointments, the complainant and Josée Chauret remained in the pool of qualified candidates.
11 The complainant filed two complaints of abuse of authority under s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (PSEA). The first complaint related to the appointments of Ms. Privalova and Ms. Morin was received on December 23, 2010, and the second complaint related to the appointment of Ms. Verner was received on March 21, 2011. The two complaints were consolidated for the purposes of these proceedings, in accordance with s. 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116.
12 The complainant notified the Canadian Human Rights Commission (CHRC), pursuant to s. 78 of the PSEA, that his complaints raised an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). The CHRC informed the Tribunal that it did not intend to make submissions in these complaints.
13 Two other persons were subsequently placed in AS-04 positions in HRWSB. Ms. V was deployed from another position. Mr. B was appointed from a different appointment process. Neither of these persons participated in the appointment process that is the subject of these complaints. The complainant alleges the respondent placed these persons from outside the appointment process at issue to avoid appointing him to a position.
Parties of Record
- Tribunal Files:
- 2010-0778 and 2011-0144
- Style of Cause:
- Paul Abi-Mansour and the Deputy Minister of Aboriginal Affairs and Northern Development Canada
- Hearing:
- September 26-28, 2012 and
October 15, 2012
Ottawa, Ontario - Date of Reasons:
- March 6, 2013
APPEARANCES:
- For the complainant:
- Paul Abi-Mansour
- For the respondent:
- Christine Langill
- For the Public
Service Commission: - Kimberley J. Lewis
(written submissions)