FPSLREB Decisions

Reasons for Decision

Introduction

1 Vincent Huang, the complainant, applied in an internal advertised appointment process for a Safety Programs Promotion Officer position at the PM-03 group and level with the Department of Transport, Infrastructure and Communities (TIC). The complainant alleges that the respondent, the Deputy Minister, TIC, abused its authority in two ways: first, in assessing his interview answers and reference check replies and, second, by showing preferential treatment towards the appointee by awarding overly generous marks to his written examination answers.

2 The respondent denies these allegations and states that the complainant was eliminated from the appointment process because he failed to meet two essential qualifications that were assessed using the interview and the reference check.

3 The Public Service Commission (PSC) did not appear in this matter, but presented a written submission on PSC policies and guidelines relating to the issues in this case.

4 For the reasons set out below, the Public Service Staffing Tribunal (the Tribunal) finds that the complainant has not established that the respondent abused its authority in the assessment of his qualifications in the appointment process. In addition, the complainant failed to establish that the respondent gave preferential treatment to the appointee during the assessment process.

Background

5 In August 2011, TIC conducted an internal advertised appointment process to fill a position at the PM-03 group and level and to create a pool of qualified candidates to staff similar positions with different tenures at the same group and level within TIC.

6 Candidates were assessed by way of an initial screening of applications, a written exam, an interview and a reference check. The complainant was successful until the interview and reference check phase of the process. On January 11, 2012, the Senior Human Resources Advisor, Natasha Shahani, (Senior HR Advisor) informed him by email that he had been eliminated from further consideration in the appointment process because he did not obtain a pass mark for two essential qualifications assessed by interview and reference check, namely: engagement and excellence through results.

7 On February 24, 2012, the complainant filed a complaint of abuse of authority with the Tribunal under
s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss.12, 13 (the PSEA).

Issues

8 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in its assessment of the complainant?
2. Did the respondent abuse its authority in its assessment of the appointee?

Summary of relevant evidence

9 The complainant was one of 19 candidates who applied for the position. He was one of seven applicants who passed the initial screening and was in the final group of three who were interviewed for the position.

10 The assessment board for this appointment process was headed by Board Chair, Mark Miller, Manager, Rail Safety Systems, Ontario Region. The other members of the board were: Natalie Lalonde, Issues Manager, Surface Section, and Mike McNeilly, Manager of Equipment and Operations. The complainant stated that the appointee had previously worked with Ms. Lalonde.

11 On November 7, 2011, the complainant arrived for his scheduled 1:00 p.m. interview on the fourth floor of the building where he worked. The complainant testified that the integrity of the appointment process at the interview stage was compromised when the respondent chose not to receive candidates on a neutral floor, but scheduled the meeting on the same floor on which he worked. He stated that his fellow employees observed that he was “dressed up in a full suit” waiting in the reception area of his own department. He added that he was distracted by fellow employees when the respondent placed him in a room in which he was clearly visible to passersby. Consequently, his co-workers interrupted him by waving and speaking to him while he was preparing for his interview. The complainant stated that the respondent failed to put up a sign indicating that testing was in progress and thus ensure that he was uninterrupted while preparing for his interview.

12 The complainant also stated that he was misled by Ms. Shahani during their conversation just before he reviewed the interview questions. Candidates had been asked to prepare a five to seven minute presentation for their interview. The complainant asserted that Ms. Shahani had told him that the length of the presentation did not matter. As a result, the complainant did not adhere to the strict time limit and his presentation exceeded the time limit. The complainant felt that although he passed this part of the interview, his mark suffered because his presentation was too long.

13 The complainant also testified that the appointee received preferential treatment because he had worked in the Surface Section for one member of the assessment board, Ms. Lalonde, and had previously worked in the Human Resources Section. The complainant stated that from time to time he had observed the appointee having lunch with Ms. Shahani in the cafeteria.

14 On January 11, 2012, Ms. Shahani notified the complainant by email that he had been eliminated from further consideration because he did not meet two qualifications of the position, namely: engagement and excellence through results. These qualifications had been assessed by questions posed to the candidates during the interview and by questions posed to their references. The assessment board assessed the responses from both sources in determining the final mark.

15 Upon receiving the email, the complainant scheduled an informal discussion with Mr. Miller and learned that responses that he had successfully used on previous interviews did not receive a passing mark for this interview. When this was pointed out to Mr. Miller, the latter reportedly said that other managers must have used a different scoring criteria.

16 The complainant also learned that Mr. Miller had contacted his references even though he had failed two interview questions relating to engagement and excellence through results. The complainant queried why the assessment board continued to check his references if he had failed those interview questions. In addition, the complainant stated that the Board Chair had asked him whether the position was a good fit for his career aspirations.

17 The complainant also documented eleven instances in which he alleged that the assessment board either assigned overly generous marks to the appointee’s exam answers or asserted that the appointee’s examination answers had been altered. Further, the complainant questioned the manner in which the assessment board arrived at the appointee’s score for some questions and suggested that this indicated that the appointee received “special treatment”.

18 Mr. Miller testified about the assessment criteria and how candidates were assessed. He stated that the Safety Programs Promotion Officer position was a new position responsible for identifying the rail safety partners in the field. The incumbent in the new position was also to develop and present safety materials to the public and partners such as school boards in order to promote safety.

19 Mr. Miller stated that the essential qualifications were developed in relation to the duties and responsibilities of the position. He added that competencies were evaluated using tools such as written exams, interviews, sample memos and a reference check. With regard to the qualifications of engagement and excellence through results, he stated that the former was the ability to work effectively with people. The latter related to best possible practices whether working singly or as a member of a team. These qualifications were assessed by combining the scores of candidate’s interview answers and the answers from their references to questions dealing with the same qualifications.

20 Mr. Miller testified that the same tools were used to assess all candidates. He prepared and developed a written exam and answer key, as well as interview questions and answer key. These assessment materials were reviewed with Human Resources before they were used.

21 Only three of the seven people who wrote the exam were called for an interview. Mr. Miller explained, generally, how he assessed the answers to the written exam and then provided a detailed explanation of how he assessed each of the challenged answers of the appointee’s examination against the answer sheet. He stated that he compared the candidate’s answer to the answer in the answer key. He focused on key words in situations where a candidate provided a description.

22 Mr. Miller also explained that the circles he had placed on the appointee’s examination paper indicated spelling errors. He also testified that he did not add any information to the answer sheet provided by the appointee. He noted that the entire board assessed the draft letter that the appointee composed during the written test and placed the mark directly on the scoring grid.

23 Further, Mr. Miller testified that the complainant was successful on the interview portion that tested his ability to design and deliver a presentation. He also explained that four competencies including engagement and excellence through results were evaluated by interview and by references supplied by the candidates. The board assigned a preliminary mark at the interview stage and finalized the mark after reviewing the references’ answers to questions dealing with those competencies.

24 Mr. Miller also explained why the complainant was unsuccessful at the interview stage in his response to questions involving engagement and excellence through results. He had compared the complainant’s answers to the criteria the board had established for those qualifications. The board then assessed the responses from the complainant’s references and combined those results with the complainant’s interview scores to determine the final mark for those qualifications.

25 Mr. Miller stated that two of the three interviewees passed the interview portion of the appointment process. At the beginning of the appointment process the board identified five criteria which were pre-determined to be the “right fit” for the position. These included knowledge of the Railway Safety Act, knowledge of Transport Canada’s safety partners, the ability to design and deliver presentations, and excellence through results. The appointee was the candidate who achieved the highest mark in each of the right fit criteria.

26 Mr. Miller also stated that although he knew of the appointee he did not have a relationship with that individual. He said that he was aware that the appointee had worked in the section of one board member, Ms. Lalonde. However, he was unaware of any relationship between them other than a professional relationship. He also testified that he did not have a relationship with the complainant.

27 Following the appointment, Mr. Miller had a two-hour informal discussion with the complainant to discuss the complainant’s exam and interview results.

28 Ms. Shahani testified about her role in the appointment process and her contacts with the complainant and the appointee. Ms. Shahani, a six-year employee of the HR section, stated that she occupied the same position during the appointment process. She stated that her duties included assisting the manager in drafting the Statement of Merit Criteria (SMC), providing advice in developing the job opportunity advertisement and assessment tools, and inviting candidates for testing and interviewing.

29 Ms. Shahani confirmed that she had invited the complainant to his interview and presentation and explained that all candidates were greeted on the fourth floor because it was an area where they could meet. In addition, she stated that she wanted to use an appropriate boardroom for candidates to prepare for their interview. After she had escorted the complainant to that boardroom, she testified that the complainant asked her “what if my presentation is too long?” She replied “don’t worry about it – we are here to review the interview questions.”

30 She testified that before the start of the complainant’s interview she had posted a sign on the door to the room to indicate that testing was in progress. She also placed a clock in the room, and had equipped herself with a stopwatch. In response to concerns the complainant raised about the interview, Ms. Shahani stated that the complainant was concerned that his laptop would not be compatible with the equipment in the presentation boardroom. She responded by providing him with a USB key on which he copied his presentation. She testified that the complainant did not voice any other concerns at that time. Further, she was not aware that the complainant had been interrupted.

31 Ms. Shahani testified that she knew the appointee because they had worked in the same department previously; she worked in the general section and he worked in the corporate section. She testified that occasionally she met him as part of a group for lunch. She stated that her relationship with the appointee did not go beyond the workplace.

Analysis

32 Section 77(1) of the PSEA provides that a person in the area of recourse may make a complaint to the Tribunal that he or she was not appointed or proposed for appointment because the PSC or the deputy head abused its authority in the appointment process.

33 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.”

34 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal established that abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority. Abuse of authority can also include errors. Whether an error constitutes an abuse of authority will depend on the nature and seriousness of the error in question.

35 The Tribunal's jurisprudence has established that the complainant has the burden to prove, on a balance of probabilities, that there was an abuse of authority in relation to an internal appointment process under s. 77 of the PSEA. See, for example, Tibbs at paras. 49 to 55.

Issue I: Did the respondent abuse its authority in its assessment of the complainant?

36 Section 36 of the PSEA provides delegated managers with broad discretion in choosing and using assessment methods to determine whether an individual possesses the required qualifications. This authority is not absolute. Thus, the Tribunal may find that there is abuse of authority if, for example, it is established that the assessment method has a fundamental flaw. Assessment methods that do not assess qualifications or are unreasonable, discriminatory or produce a result that is unfair can constitute an abuse of authority. See Ouellet v. President of the Canadian International Development Agency, 2009 PSST 0026.

37  Written examinations and reference checks can be useful tools for assessing whether a candidate meets the qualifications for a position to be staffed. The PSC’s Assessment Policy indicates that to ensure an effective assessment, there should be a direct link between the assessment methods, processes and tools used and the qualifications for the position. Further, the assessment methodology and tools should be able to ensure that the qualifications that have been established for the position are properly evaluated. In addition, the PSC’s Assessment Policy requires that those conducting the assessment are not in a conflict of interest position and are able to carry out their roles, responsibilities and duties in a fair and just manner.

38 As noted in Ammirante v. Deputy Minister of Citizenship and Immigration, 2010 PSST 0003, the Tribunal’s role is to examine whether or not there was any impropriety in the assessment process. A review of the relevant evidence in this case leads the Tribunal to conclude that the complainant has not established, on a balance of probabilities, that there was abuse of authority in the assessment process.

39 In relation to the complainant’s allegation that the integrity of the appointment process was compromised by the respondent’s use of the fourth floor reception and boardroom facilities, the Tribunal finds that there is no merit to that allegation. The evidence established that the same facilities were used for all candidates. Moreover, the location of the interview was provided to the candidates well in advance of the event. The complainant did not voice any concerns about the location when he received the invitation for the interview. As well, he did not express any concerns about the location of the interview or any alleged distractions during his preparation for the interview at his informal discussion, which took place approximately two months after his interview. Ms. Shahani’s testimony that the complainant did not raise any of these concerns with her at the time of the interview process was not disputed. The concerns were first raised when he filed this complaint to the Tribunal.

40 The Tribunal finds that the complainant has failed to establish any link between the respondent’s choice and use of the pre-interview and interview facilities and his performance during the interview process. The location for the pre-interview preparation and the interview did not, as alleged, compromise the integrity of the appointment process.

41 The Tribunal considered the complainant’s allegation that he was misled by Ms. Shahani’s remarks concerning the time he was allowed for his presentation at the interview. Although he submits that he may have lost marks for going over the allotted five to seven minute time limit, there was no evidence that occurred. In any event, the remarks had no effect on the decision to eliminate him from the appointment process since the complainant passed the presentation phase of the interview.

42 The complainant alleges that the respondent wrongfully exercised its discretion in eliminating him from the process. The complainant failed two questions. He testified that on one of the questions he failed, he had previously used a similar answer, successfully, on another appointment process. The complainant raised this point during his informal discussion and Mr. Miller addressed it at that time and during the hearing.

43 During his testimony, Mr. Miller provided a detailed account of the rationale for the position, the tasks to be performed, the relationship between the qualifications that were developed and the tasks to be performed. He had a good understanding of the work to be performed and used that knowledge to develop qualifications that related to the work. He also developed appropriate tools to measure and assess those qualifications, and testified about how those tools were used consistently to assess each candidate. In particular, he provided the marking scheme that was used to assess all candidates and explained the basis for the marks the complainant received. His testimony on these points was not challenged. The answer key for the other appointment process referred to by the complainant was not produced at the hearing. The only evidence before the Tribunal is the complainant’s testimony that, during informal discussion, Mr. Miller reportedly said that other managers must have used different scoring criteria.

44 The Tribunal finds, therefore, that the complainant has not established that the respondent exercised its discretion improperly when it eliminated him from the process.

45 There was no evidence that the assessment methods chosen for the assessment of candidates were improper. The SMC was prepared before the appointment process. There was a clear link between the qualifications to be assessed and the tools that were chosen. The same assessment criteria, methodology and tools were used to assess all candidates. There was no evidence that any of the board members had any personal interest in the outcome.

46 The Tribunal concludes that the complainant has failed to prove that the respondent abused its authority in its assessment of his candidacy for the position.

Issue 2: Did the respondent abuse its authority in its assessment of the appointee?

47 The complainant alleges that the respondent abused its authority in its assessment of the appointee in two ways: first, the respondent gave preferential treatment to the appointee by awarding full marks for substandard answers and, second, that there was a personal relationship between the appointee and Ms. Shahani. The evidence does not support the complainant’s allegation.

48 Mr. Miller provided reasonable explanations for the marks assigned to each of the appointee’s answers challenged by the complainant. His testimony that he did not change the appointee’s answers was unchallenged. He explained that he circled three parts of the appointee’s writing exercise, which formed part of the written examination, to identify spelling errors made by the appointee. Throughout the assessment process, the board members consulted among themselves in determining the marks for that writing exercise. When the board concluded its marking of the appointee’s written exercise, the mark was placed directly on the scoring grid. The complainant did not challenge this explanation on cross-examination.

49 In relation to the other answers on the appointee’s examination paper, Mr. Miller reviewed the appointee’s answers and showed how those answers corresponded to the answer set that the board had developed at the beginning of the appointment process. His explanations were reasonable and were not challenged by the complainant during cross-examination at the hearing. The Tribunal finds that the complainant has not proven that the appointee was given preferential treatment in his assessment.

50  With respect to the allegation of personal favouritism, the complainant pointed to the fact that Ms. Shahani and the appointee were seen having lunch together while they were employees of the HR section. On a few occasions the complainant had observed the appointee having lunch with other HR employees including Ms. Shahani. This was the only evidence presented by the complainant of a personal relationship between them. The complainant admitted that he was unaware of any contacts between the appointee and Ms. Shahani outside of the office. Ms. Shahani explained that she knew the appointee only because he had worked in the corporate division of HR and would, on occasion, lunch together with a group of other employees of the section, including the appointee.

51 The Tribunal finds that the evidence of association between the appointee and Ms. Shahani does not support a finding of personal favouritism. On the evidence, the only finding that the Tribunal can make in this regard is that the appointee and Ms. Shahani had worked together in HR. Moreover, Ms. Shahani was not a member of the assessment board and played no part in the decision-making process. Her role was to assist the manager in drafting the SMC, providing advice in developing the job advertisement poster and assessment tools, and inviting candidates for testing and interviewing.

52 In addition, there was no allegation or evidence of anything but a professional relationship between the appointee and Ms. Lalonde, who was his supervisor in the Surface division.

53 The Tribunal finds that the complainant has failed to prove that the respondent abused its authority in its assessment of the appointee. Mr. Miller’s explanations of how he marked the appointee’s examination were reasonable and were unchallenged by the complainant. Also, there was insufficient evidence to support the allegation of personal favouritism.

54 The Tribunal concludes that the complainant has failed to prove that the respondent abused its authority in this case. The evidence supports a finding that the board developed and used tools that were appropriate to assess the qualifications set out in the SMC. The board also used the same methodology for all candidates. The complainant has failed to prove, on a balance of probabilities, that there was any impropriety in the assessment process, whether based on preferential treatment, personal favouritism or otherwise.

Decision

55 For all these reasons, the complaint is dismissed.

Eugene Williams
Member

Parties of Record

Tribunal Files:

2012-0071

Style of Cause:

Vincent Huang and the Deputy Minister of Transport, Infrastructure and Communities

Hearing:

November 20-21, 2012
Toronto, Ontario

Date of Reasons:

January 18, 2013

APPEARANCES:

For the complainant:

Larry Teslyk

For the respondent:

Magdalena Persoiu

For the Public
Service Commission:

Laurence St. Gelais
(written submissions)