FPSLREB Decisions

Reasons for Decision

Introduction

1 These complaints concern allegations that the respondent, the Deputy Minister of National Defence, abused its authority in two appointment processes to fill Technical Services Supervisor, Contract Development Team Leader and Project Leader positions at the SR-MGT(C)-01 group and level. Complainant Michael Burke alleges that the respondent abused its authority when it screened him out of the first appointment process for failing to demonstrate that he met the essential education/certification qualifications. Complainant Raymond Payne alleges that the respondent abused its authority when it screened him out of both appointment processes for failing to meet the essential education/certification qualifications.

2 The respondent replies that it did not abuse its authority. It contends that Mr. Burke was screened out because he failed to prove that he met the essential education/certification qualifications set out in the Job Opportunity Advertisement (JOA). It also contends that Mr. Payne was screened out because his trade certifications did not satisfy the essential education/certification requirements set out in the JOA.

3 The Public Service Commission (PSC) did not attend the hearing but made written submissions, and provided a number of PSC policies and documents that it believed would be useful to the Tribunal in resolving the complaints.

4 For the reasons set out below, the Tribunal finds that the complaints are substantiated.

Background

5 On December 17, 2010, the respondent initiated an internal advertised appointment process (10-DND-IA-HALFX-347018) to establish a pool of candidates to fill SR-MGT(C)-01 positions at the Department of National Defence (DND) Fleet Maintenance Facility (FMF) Cape Scott at Halifax, Nova Scotia. The SR‑MGT(C)‑01 level includes Technical Service Supervisor (TSS) positions, such as those being sought by the complainants through this appointment process.

6 The appointment process was open to DND employees occupying a position with Maritime Atlantic (MARLANT) and to members of the Canadian Forces with a home posting in the Halifax/Dartmouth area who were working with MARLANT.

7 Mr. Burke was an applicant in the appointment process. On March 10, 2011, he was notified that he had been eliminated from the process because he had failed to prove that he met the essential education/certification qualifications in the JOA.

8 Mr. Payne was initially screened into the appointment process. However, on April 14, 2011, he was informed that the decision to screen him in had been made in error and that he was being eliminated from the appointment process because he had failed to meet the essential education/certification qualifications in the JOA.

9 A Notification of Appointment or Proposal of Appointment (NAPA) was posted on August 30, 2011, announcing three appointments. On September 13, 2011, both complainants filed 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).

10 On July 5, 2011, the respondent initiated a second appointment process (11‑DND-IA-HALFX-355475) using an identical JOA to fill SR-MGT(C)-01 positions. It undertook the second process because there were insufficient qualified candidates from the earlier process to fill all of the vacant positions.

11 Both complainants applied to the second appointment process. Mr. Burke was screened into this process, but was eliminated at a later stage. Mr. Payne was informed on September 21, 2011, that he had been eliminated from this process for the same reasons that he had been eliminated from the earlier appointment process.

12 A NAPA was posted on December 28, 2011, announcing an appointment from the second appointment process. Mr. Payne submitted his second complaint on that date.

13 The 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.

Issues

14 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority when it eliminated Mr. Burke from the first appointment process?
2. Did the respondent abuse its authority when it eliminated Mr. Payne from both appointment processes?

Analysis

Issue I:  Did the respondent abuse its authority when it eliminated Mr. Burke from the first appointment process?

15 Mr. Burke testified that he is an Electronics Systems Specialist at the SR‑EEW‑11 group and level. After graduating from vocational school in electronics in 1977, he was hired by DND as an apprentice in its Electronics Apprenticeship Program. In 1980, following a three-year apprenticeship, DND certified him to work in electronics. The certification qualification is awarded by DND and is not provincially recognized. He was not issued a formal electronic system trade certificate at the time and he claims that DND does not provide a formal certificate to this day. Mr. Burke reports to a TSS and works with four other persons certified in electronics by DND and with three or four electricians who are provincially certified. His work unit also includes a number of mechanics. To the best of his knowledge, everyone in his work unit is a qualified tradesperson.

16 Ian Mitchell was called to testify by the respondent. At the time of these appointment processes, he was the Technical Service Manager (TSM) in the Weapons Division at FMF, Cape Scott. He was responsible for nine TSSs who reported to him. He explained that each TSS manages approximately 15 employees.

17 On March 10, 2011, Mr. Burke received a letter from Human Resources informing him that he was eliminated from the appointment process because he failed to “prove” in his application that he met the essential trade requirements.

18 At Mr. Burke’s request, an informal discussion was held on March 17, 2011, to discuss this decision. Two assessment board members, Dan Dugie and Ward Bullerwell, participated in the informal discussion. The board members maintained that he had not proven that he had the required trade qualification. They informed him that in the absence of a formal trade certificate, he could have provided other evidence of his trade qualifications such as a pay stub showing that he was classified at the SR‑EEW–11 level, a level that requires this qualification. Mr. Burke claimed that all of the information the board needed to recognize that he had a DND trade qualification was in his application. In particular, he pointed out that he had set out in his application training courses that he had attended that require the essential electronic trade qualification. The Tribunal notes that he had also indicated his classification group and level on the first page of his application.

19 According to Mr. Burke, the board members informed him that they were prohibited from screening him back into the appointment process because he was required to provide the proof before the application deadline and it was too late to provide the required information at the informal discussion stage. The board members stated public service staffing regulations prohibited any flexibility.

20 Mr. Burke acknowledged that page 4 of the JOA specifies in three places that candidates must provide proof of their education qualifications, including journeyman certification or documents that attest to successful completion of required courses. He did not understand that this was required from him since he had been certified by DND.

21 Mr. Burke testified that Mr. Mitchell, the third member of the assessment board, was aware that he met the certification qualifications. The TSS who supervises Mr. Burke reports to Mr. Mitchell. Mr. Mitchell reviews the annual performance appraisals of tradespersons with each TSS. Mr. Mitchell also authorizes TSS acting assignments. Mr. Burke has occasionally acted in TSS positions.

22 Mr. Mitchell confirmed that Mr. Burke was eliminated from the appointment process because he failed to provide proof of his trade qualifications as required in the JOA. He testified that he had personal knowledge that Mr. Burke met the trade qualification by virtue of Mr. Burke’s position as an SR-EEW-11; however, the assessment board had decided not to use the personal knowledge of board members in screening candidates. The board felt that to do so would be unfair since the appointment process was open to candidates from outside of the FMF and some of those candidates might not be known to board members. He testified that if he had not been on the assessment board, no one would have known about Mr. Burke’s qualifications.

23 Mr. Mitchell acknowledged that Mr. Burke’s application stated that he is employed at the SR-EEW-11 level and that Mr. Mitchell knew this to be true. He also accepted that an employee at the SR-EEW-11 level would meet the education/certification requirements of the JOA because the required certification is necessary to work at that level. He further recognized that DND would not send apprentices to some of the courses attended by Mr. Burke and set out in his application. However, he asserted that the JOA required “proof” that a candidate met the trade qualification. He stated that what a candidate writes in a résumé does not constitute proof. He also pointed out that the JOA clearly states that this information must be provided prior to the application deadline.

24 According to Mr. Mitchell, there were 90 applications to the process and approximately 10 were screened out for failing to meet the education/certification qualifications. However, Mr. Mitchell did not specify in his testimony whether the 10 who were screened out simply did not meet the education/certification qualifications or, like Mr. Burke, may have met them but failed to provide proof satisfactory to the board.

25 Mr. Mitchell specified a number of documents, such as a letter of offer or a performance appraisal, which Mr. Burke could have submitted to prove his trade qualifications. These documents would not directly show that Mr. Burke has a trade certification but would demonstrate that his position classification requires certification. He acknowledged that the opportunity to use these documents as proof of the education/certification qualifications was not mentioned in the JOA.

26 Mr. Burke noted that the appointment process was restricted to certain DND employees and members of the Canadian Forces but candidates were not required to prove their employment status in their application to demonstrate that they had a right to apply.

27 Mr. Mitchell testified that he did not attend the informal discussion but he explained the board’s expectations to Mr. Burke when they met to exchange information following the complaint to the Tribunal. He informed Mr. Burke that the JOA required him to submit some official document to prove that he met the essential trade qualification. He said that Mr. Burke replied that he may not have noticed this requirement. Mr. Burke acknowledged that this conversation may have taken place.

28 Mr. Mitchell pointed out that when Mr. Burke applied in the second SR‑MGT(C)‑01 appointment process, he included with his application a copy of one of his performance reviews and a document related to an acting assignment, both signed by Mr. Mitchell, showing that he was classified at the SR-EEW-11 level. Mr. Burke was screened into that process.

29 The respondent cited a number of Tribunal decisions holding that candidates are responsible to comply with instructions and conform to the requirements of a JOA in demonstrating that they meet the essential qualifications in an appointment process. It asserts that the assessment board has no obligation to follow up with candidates or raise inferences when a candidate has been clearly told that they must demonstrate their qualifications in their applications. See Abi-Mansour v. Deputy Minister of Foreign Affairs and International Trade Canada, 2012 PSST 0008, at para. 50; Edwards v. Deputy Minister of Indian and Northern Affairs Canada, 2011 PSST 0010 at para. 33; and Henry v. Deputy Head of Service Canada, 2008 PSST 0010, at paras. 53‑56.

30 The respondent submits that the assessment board had no obligation to apply personal knowledge in assessing Mr. Burke’s qualifications. There were 90 candidates in the appointment process and the board determined it would be unfair to candidates they did not know to use personal knowledge to screen-in Mr. Burke.

31 The respondent argues that it was Mr. Burke’s lack of diligence that resulted in the decision to screen him out of the appointment process. It noted that the requirement to provide proof of educational qualifications is mentioned three times in the JOA. It claims that there were a number of documents that Mr. Burke could have used to prove that he met the educational qualifications but that he did not submit any proof.

32 In analyzing the evidence, the Tribunal must determine if the respondent abused its authority when it refused to rely on its personal knowledge of the complainant and to consider at the informal discussion whether the information in the JOA was deficient.

33 The Tribunal finds that the cases cited by the respondent can be distinguished from the facts in this case. In those decisions, the complainants argued that the assessment boards should have made inferences or followed up with the complainants regarding their qualifications. Mr. Mitchell confirmed that he had absolute knowledge that Mr. Burke met the trade qualification. Despite this knowledge, the assessment board denied itself the opportunity to use this information because it had made a procedural decision not to consider personal knowledge of candidates known to them, believing this might be unfair to other candidates who were not known to them.

34 It is clear that the JOA in this case required candidates to provide proof of their educational qualifications. With respect to Mr. Burke, this meant providing proof as a “Journeyperson or Red Seal in a Ship Repair Trade.” However, Mr. Burke obtained his electronic trade qualification through an internal apprenticeship with DND. Based on the evidence, there is nothing comparable to a provincial trade certificate to go along with the completion of this apprenticeship program.

35 Mr. Burke assumed that the respondent was aware of this situation and that consequently it could not have expected him to produce a certificate that did not exist. He further assumed that based on the information in his application, the assessment board would be satisfied that he was working in a position that required the designated trade qualification. In his application, Mr. Burke stated his classification level, which requires certification as a journeyperson; noted that he had participated in DND’s Electronic Apprenticeship Program; listed courses he had taken that were designed for electronics journeypersons; and stated that he had recruited, interviewed and set up training schedules for apprentices.

36 The board knew that electronic specialists such as Mr. Burke did not have the trade certificate requested in the JOA. However, the board still expected proof of his educational qualifications. The board was prepared to accept other documentation as proof of the trade qualification, such as performance appraisals and letters of offer. These documents would serve as proxies for the trade certification. However, the possibility to present these other documents as proof of the trade qualifications was not mentioned in the JOA, directly contributing to Mr. Burke’s assumptions on how to proceed. Certainly, Mr. Burke could have raised this issue with the Human Resources Assistant before the application deadline to determine how he should address this situation. However, he was satisfied that the assessment board would know or ought to know from the work that he was doing in Mr. Mitchell’s division that he met the trade certification. Indeed, it would not have been possible to perform the duties of an SR‑EEW-11 without these required qualifications. Considering that Mr. Burke had no official trade certification document proving he was certified and having provided information on his classification level and courses attended in his application, Mr. Burke’s assumption was reasonable.

37 Mr. Mitchell claimed that it was only through good fortune that he was a member of the assessment board and, therefore, familiar with Mr. Burke’s qualifications. However, even if he had not been on the board the issue of whether or not the JOA was clear and sufficient regarding the education/certification qualifications was drawn to the board’s attention by Mr. Burke at the informal discussion. It was only at this meeting that Mr. Burke came to fully understand the reasons for his elimination from the appointment process.

38 Mr. Burke takes issue with the respondent’s statement at the informal discussion meeting that it would be contrary to unspecified public service staffing regulations to provide any relief for his situation. The respondent, relying on the decision in Lirette v. Deputy Minister of National Defence, 2011 PSST 0042 at para. 35, argues that an informal discussion provides an opportunity to correct errors in the assessment process but it is not an opportunity to request a reassessment of a candidate’s qualifications. The respondent maintains that no errors occurred in this assessment process.

39 Pursuant to s. 16 of the PSEA, deputy heads are subject to PSC policies. The PSC Assessment Policy provides that assessment processes and methods are to effectively assess the essential qualifications and are to be administered fairly. It says that effective processes and methods are those that result in the identification of persons who meet the qualifications used in making the appointment decision and provide a sound basis for making appointments according to merit.

40 Both the PSEA and the PSC Appointment Policy identify fairness as a guiding value in managerial decision-making in an appointment process. Fairness is defined by the PSC to mean that appointment decisions reflect the just treatment of persons.

41 Taking the value of fairness into consideration, it is clear that the purpose of an assessment process is to determine whether candidates meet the legitimate requirements for a position. While consistency and procedural rules are important, they should be administered in a reasonable way and should not overshadow the main purpose of the assessment process.

42 The PSC policy regarding Advertising in the Appointment Process requires, amongst other things, that JOAs provide sufficient information regarding the criteria to be used in screening persons in the area of selection. It states that sufficient information in an advertisement must include the merit criteria to be used in screening to allow persons the opportunity to prepare and submit relevant information in order for them to be considered further in the process. As the Tribunal noted in Neil v. Deputy Minister of Environment Canada, 2008 PSST 0004 at para.50:

[...] while it is not mandatory to inform candidates of complete details of how a particular qualification will be assessed, it is in everyone’s interest to be as clear and transparent as possible in an appointment process. This will ensure that all those who do, in fact, meet a qualification can demonstrate this and proceed to the next step of the process.

43 In this case, there was not sufficient information in the JOA for Mr. Burke to clearly understand what proof of his education/certification qualifications that he should provide. When he understood what was required in the second appointment process, he readily complied. The Tribunal is not persuaded that in the present instance the JOA was clear and transparent given that it requested a certification document that does not exist with respect to persons in Mr. Burke’s situation, and failed to identify any of the alternative documentation that would have been acceptable to the assessment board.

44 PSC guidelines are not mandatory but they flow from and are designed to be consistent with PSC policies and provide insight into their application. In a document entitled Guidance Series – Assessment, Selection and Appointment, at section 1.6, the PSC advises: “The assessment board should use all of the information at its disposal, as long as it is factual. This includes the direct, personal knowledge that persons responsible for assessment may have about an applicant.”

45 Furthermore, the PSC’s Guide to implementing the Informal Discussion Policy, states the following in section VI:

This policy requirement reinforces the flexibility of Informal Discussion. Errors and oversights made during the appointment process can be corrected as soon as they are identified, so that better decisions may be made. For example, if a person was incorrectly screened out and should be assessed further, the situation can be easily rectified.

It must be noted and taken into consideration that a correction made in regard to one person may have an impact on other persons in the appointment process. For example, to ensure fairness, it may be necessary to reassess other persons if it is determined that an assessment tool is flawed.

46 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at para. 70, the Tribunal referred to five categories that may lead to a finding of abuse of authority. Two of these are relevant to this case:

1. When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters), and

2. Where a delegate refuses to exercise his/her/its discretion by adopting a policy which fetters the ability to consider individual cases with an open mind.

47 In this case, the board adopted a guideline not to consider personal knowledge in assessing candidates. However, it applied this guideline rigidly and mechanically by ignoring the relevant facts that it knew Mr. Burke met the certification qualifications. By doing so, it failed to consider relevant information and fettered its discretion to consider the individual case of Mr. Burke.

48 The rationale for this guideline was to be fair to candidates that it did not know. In refusing to consider Mr. Burke’s concerns at the informal discussion, it appears that the respondent confused consistency with fairness. Consistency may be a component of fairness but it is not the same thing. In contrast, the Tribunal finds it noteworthy that the assessment board found no inconsistency in its decision to consult Mr. Payne’s supervisor, Charles Hawker, to access his personal knowledge of Mr. Payne’s education/certification qualifications. Presumably, if Mr. Hawker had confirmed that Mr. Payne’s qualifications met those required in the JOA, Mr. Payne would have been screened into the appointment process based on Mr. Hawker’s personal knowledge. Mr. Payne’s situation will be dealt with in more detail later on in the reasons for this decision.

49 If the assessment board had considered the totality of Mr. Burke’s situation and concluded it was unfair to screen him out of the appointment process, it would have been appropriate to review the cases of the other persons who had been screened out for failure to meet the educational qualifications to determine if their situations were similar to Mr. Burke’s. This situation is contemplated in the second paragraph of the above-noted Guide to Implementing the Informal Discussion Policy and addresses the board’s concerns about being fair to all candidates. Mr. Mitchell testified that approximately 10 persons had been screened out for failing to meet the educational qualifications. It would not have imposed a significant burden on the assessment board to review those 10 cases.

50 Given the situation that Mr. Burke brought to the board at the informal discussion, the board should have considered whether it had provided enough information in the JOA for tradespersons with internal DND trade qualifications to submit a complete application. This could have included information on what documentation candidates should present to prove a DND certification. It could also have informed candidates that personal knowledge would not be considered.

51 An assessment board is not required to consider personal knowledge in assessing candidates. However, it should not take a rigid and inflexible approach where it constrains itself by its own procedural decision not to consider such knowledge. As in the present case, there may be circumstances where it is appropriate to reconsider such an approach. Similarly, a board should not consider itself bound by a requirement in the JOA for candidates to provide proof of a trade certification even where direct proof of such certification does not exist for internally qualified candidates.

52 The respondent argues that an informal discussion is not an opportunity for a candidate to be reassessed. However, that is not the issue here. In this case, the question is whether the board erred in failing to consider whether Mr. Burke reasonably made his assumptions about the education/certification qualifications and, consequently, whether the board should have provided more information in the JOA. Given the circumstances, the Tribunal finds that the board should have used its discretion to at least consider this question, but the evidence suggests it declined to do so, relying on unnamed public service staffing regulations and its earlier decision not to consider personal knowledge of candidates.

53 In Poirier v. Deputy Minister of Veterans Affairs, 2011 PSST 0003, the Tribunal held that in some circumstances, a respondent may be expected to show some discretion when presented with important information during the informal discussion. In that case, the complainant was screened out of an appointment process because the respondent determined that he had not submitted his application in the required format. The Tribunal found that the complainant’s application was consistent with his different but reasonable interpretation of the instructions in the JOA. At the informal discussion, the respondent nonetheless informed the complainant that it could not accept any new information from the complainant. The Tribunal found that the respondent had abused its authority by fettering its discretion to accept or consider that the instructions in the JOA were flawed and to consider measures to alleviate the impact that this error had on the complainant’s application.

54 An additional factor in Poirier was that the board dealt with candidates in an inconsistent manner. The board claimed that it could not consider Mr. Poirier’s application because it was not submitted in the required format, but it exercised its discretion to screen in other candidates whose applications were also not in the required format. In this case, despite its decision that it would not consider personal knowledge of Mr. Burke, Mr. Hawker’s personal knowledge of Mr. Payne was sought out and relied upon by the board. The board acted in an inconsistent and unfair manner by refusing to consider Mr. Mitchell’s personal knowledge of Mr. Burke, while relying on Mr. Hawker’s personal knowledge in its decision to screen out Mr. Payne.

55 As the Tribunal has held in other instances, the board in the present case fettered its discretion by applying rigidly and without flexibility its guideline in its assessment of Mr. Burke’s application. See Ostermann v. Deputy Minister of Human Resources and Skills Development Canada, 2012 PSST 0028; Poirier; Bowman v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 0012.

56 The PSEA provides assessment boards with broad flexibility in the assessment of candidates. However, that flexibility is not without limits. Boards must exercise it in a reasonable manner consistent with the values and objectives of the PSEA.

57 In conclusion, the Tribunal finds that the respondent abused its authority by ignoring relevant facts and fettering its discretion to consider Mr. Burke’s technical qualifications. In so doing, it failed to consider relevant information when it screened him out of the appointment process.

Issue II:  Did the respondent abuse its authority when it eliminated Mr. Payne from both appointment processes?

58 Mr. Payne testified that he has been with DND since 1986. He is currently a bridge crane operator and industrial forklift operator at the SR-MDO-05 level at FMF Cape Scott. He reports to a TSS in the Production Support Division. At the time of these appointment processes, the TSS reported directly to Mr. Hawker, the TSM responsible for the Production Support Division.

59 Mr. Payne obtained a Trade Test Certificate as “Fork Lift Operator” from DND in 2001 and a Certificate of Qualification as an Overhead Travelling Crane Operator (to operate a bridge crane) from the Province of Nova Scotia in 2007.

60 Mr. Payne applied in the first SR-MGT(C)-01 appointment process and was initially screened in. Following a review of his application, he was screened out for failing to meet the essential education/certification qualifications. He also applied in the second SR-MGT(C)-01 appointment process and was screened out for the same reasons.

61 At the hearing, Mr. Payne alleged that he met the trade certification qualifications and should have been screened in to these appointment processes. In the alternative, he alleges that the trade certification qualifications were too limiting and excluded bridge crane and/or forklift operators from these appointment processes for reasons not related to the needs of the positions being staffed.

62 Mr. Mitchell described the key activities set out in a TSS work description that was entered into evidence. These activities include:

• planning, organizing and coordinating the work of the shop(s) and multidisciplinary teams;
• controlling work to ensure compliance with specifications, schedules, financial limits and quality standards;
• directing staff; ensuring compliance with safety/environmental regulations and practices; and
• performing general administration such as chairing meetings and writing/reviewing reports.

63 Mr. Mitchell acknowledged that a TSS does not perform the work of a tradesperson, but management felt trade qualifications were necessary to supervise the work of tradespersons.

64 Mr. Mitchell explained that prior to the first appointment process, the TSMs met to discuss the education/certification qualifications that would be required of the candidates. The purpose of the education/certification section in the JOA was to set a standard of education for supervisory positions. At this meeting, he said that Mr. Hawker asked to expand the education/certification section because he thought it was too limiting and would exclude many of his staff who do not have journeyperson or red seal qualifications (Mr. Mitchell described a red seal qualification as a provincial trade qualification that is accepted in other provinces). Mr. Hawker confirmed this evidence in his testimony. As a result of Mr. Hawker’s intervention, a number of FMF supporting trades were added to the education/certification section. These trades are identified by the asterisk below.

65 The education/certification section of the JOA reads as follows:

Education/Certification

Certification as a Journeyperson or Red Seal in a Ship Repair Trade OR the necessary education, training and experience to have acquired comprehensive expertise in the FMF supporting trades* OR Provincial certification in a trade relevant to Ship Repair OR QL6 with Naval trade specialization, OR Technologist Diploma with relevant ship repair experience.

*Comprehensive skills in the supporting trades includes demonstration of skill in the full range of the following positions: Chemical Treatment Technician, Metal Finisher Technician, Marine Survival Technician; Marine Treatment Finishing Specialist, Marine Insulator, and Stationary Engineering Hoisting Plant Operator with provincial licenses for Jetty Crane or Mobile Crane.

66 Mr. Mitchell testified that the assessment board initially screened Mr. Payne into the appointment process believing that his crane operator’s licence met the certification requirements in the JOA. However, following a review of the staffing files, Human Resources staff questioned Mr. Payne’s educational qualifications and referred the issue back to the assessment board. According to Mr. Mitchell, Mr. Hawker was consulted and he said that Mr. Payne was not in a trade and that his crane operator’s licence was a level below the jetty or mobile crane operator qualifications he had included in the JOA.

67 Mr. Mitchell referred to a list of Designated Trades in Nova Scotia produced by the province. The only references to crane operators relate to mobile cranes and tower cranes. He also said that Mr. Payne’s Fork Lift Operator test certificate is not on the list of designated trades nor is it listed in the JOA.

68 Mr. Mitchell acknowledged that the list of designated trades was not considered in setting the education/certification qualifications for the appointment process. He also testified that he was not personally knowledgeable of what constitutes a trade or how the province establishes trades in Nova Scotia.

69 According to Mr. Mitchell, all ship repair trades are not equivalent in terms of skill and experience. He noted, for example, that electronic technicians have different skills and do different work from crane operators. They also require different types of training and apprenticeship periods.

70 Mr. Hawker testified that the positions being staffed required persons with journeyperson skills related to ships, submarines and the associated hazards of working in these environments. The ability to recognize safety hazards was a particular concern.

71 Mr. Mitchell explained that an overhead bridge crane operates inside building D 200. It lifts objects and moves them back and forth on a fixed overhead rail. Mobile cranes are operated from a truck that moves from one work location to another. Jetty cranes are located on a jetty where they move along the jetty on a rail line. Mobile and jetty cranes have booms or towers that rotate and move up and down. Bridge cranes do not have booms or towers.

72 Mr. Hawker testified that mobile and jetty crane operators are exposed to the complete work environment. They need to know the state of the ship they are working on and they work in all weather conditions. He said this provides them with an understanding of safety issues that would be important in a TSS position. By contrast, he said that bridge crane operators work inside in a controlled environment. Mr. Hawker acknowledged that it was not necessary to work in various types of weather to obtain a mobile or jetty crane certification.

73 According to Mr. Hawker, a jetty crane operator requires 4,000 hours of work experience under a qualified operator. The number of hours can be reduced by classroom training. A certified mobile crane operator can qualify on a jetty crane with approximately 50 hours of additional supervised work experience. Mobile or tower crane operators are journeypersons certified by the Province of Nova Scotia, which considers the certification equivalent to a red seal certificate. The Province does not consider a bridge crane operator a journeyperson.

74 Mr. Hawker testified that a bridge crane operator requires 2,000 hours of qualifying work experience. He believes the extra hours required to qualify on a mobile or jetty crane reflect the additional knowledge that is required and the additional complexity involved in operating these cranes.

75 Mr. Hawker does not understand why a trade certificate is issued for the operation of a forklift. He said that a person can learn to operate a forklift with a few days training.

76 Mr. Hawker testified that he was approached by Human Resources staff for advice on whether Mr. Payne’s bridge crane certification met the education/certification requirements. He said Mr. Payne’s forklift certification was not discussed.

77 Mr. Hawker acknowledged that Mr. Payne’s job description provides that he trains and supervises employees on technical information and procedures for them to gain trade knowledge or trade certification as stationary engineers-hoisting plant and industrial lift truck operators. However, Mr. Hawker stated that Mr. Payne can only train up to his level not to the mobile or jetty crane level. He acknowledged that Mr. Payne’s job classification reflects a trade certification but he does not have a red seal trade.

78 Mr. Payne argues that he meets the education/certification requirements in the JOA. The first requirement is certification as a journeyperson or red seal in ship repair. He believes that his trade certificate as a forklift operator and his provincial certification as an overhead travelling crane operator meet this requirement.

79 He also believes that his provincial certification as a bridge crane operator and the fact that his job description identifies him as a person working in ship repair demonstrate that he meets the education/certification requirements for provincial certification in a trade relevant to ship repair.

80 Furthermore, Mr. Payne submits that the respondent has not led any real evidence that a mobile or jetty crane licence is necessary to perform the work of a TSS. He contends that these are administrative, supervisory positions and that incumbents do not perform any hands-on tradesperson work.

The setting of the education/certification qualifications

81 Mr. Payne cited the Federal Court decision in Lavigne v. Deputy Minister of Justice and the Public Service Commission, 2009 FC 684 at para. 68, to argue that definitions must be established before applications are assessed to avoid an appearance of unfairness. He argues that in this case, it was necessary to consult Mr. Hawker regarding his qualifications because clear definitions of the education/certification qualifications had not been established. He contends that instead of conducting a proper assessment, the assessment board effectively deferred to Mr. Hawker and allowed his interpretation to be determinative. As such, Mr. Payne contends that the respondent had not defined these qualifications before beginning the assessment of candidates. The Tribunal is not persuaded, however, that the mere fact the respondent consulted Mr. Hawker establishes this allegation.

The consultation with Mr. Hawker

82 The Tribunal finds it neither surprising nor a sign of improper conduct that Mr. Hawker was consulted on Mr. Payne’s qualifications.  The respondent was simply exercising due diligence when it consulted Mr. Hawker to determine if Mr. Payne met the education/certification qualifications for the assessment process. Mr. Hawker was the manager involved in drafting the portion of the education/certification section pertaining to trades in his division and he was the person most knowledgeable about the relevance of Mr. Payne’s qualifications.

Relevance of education/certification qualifications to the TSS position

83 The Tribunal noted in Trites v. Deputy Minister of Public Works and Government Services Canada, 2009 PSST 0016 at paras. 53 and 54, that s. 30(2) of the PSEA provides deputy heads and their delegates with broad discretion to establish the essential qualifications for the work to be performed. It is not the Tribunal’s role to establish the qualifications for a position or to substitute its assessment of a candidate’s qualifications for those of the manager or his or her subdelegates. The Tribunal can, however, determine whether or not abuse of authority has occurred in the assessment of a candidate.

84 Mr. Payne argues that the respondent has not provided sufficient evidence that these trade qualifications are necessary for a TSS position. Sections 30(2) and 31 of the PSEA provide the deputy head with the authority to establish qualifications. The respondent does not have to prove that these qualifications are necessary, provided the requirements of these sections are met. For instance, the qualifications must meet or exceed any applicable qualification standards set by the Treasury Board of Canada pursuant to s. 31(1) of the PSEA. See Brookfield v. Deputy Minister of Foreign Affairs and International Trade, 2011 PSST 0025 at para. 22. It is up to the complainant to prove that the respondent has abused its authority in setting the qualifications.

85 The evidence in this case indicates that the respondent gave considerable thought to the types of education and certification requirements needed for the positions being staffed. These requirements were considered at a meeting of TSMs and Mr. Hawker suggested changes to include more of his staff.

86 Subject to the Tribunal’s earlier findings regarding the clarity of the education/certification qualifications in the portion of this decision dealing with Mr. Burke’s complaint, the Tribunal finds that Mr. Payne has not established that the respondent acted improperly in setting the essential qualifications for these appointment processes.

Mr. Payne’s qualifications and the JOA

87 The next issue to be considered is whether the respondent properly assessed Mr. Payne against the education/certification qualifications listed in the JOA. The JOA sets out five types of education/certification qualifications that meet the screening requirements, only three of which are relevant to the case at hand.

88 The first type of possible certification listed is as a journeyperson or red seal in ship repair. From the testimony and documents submitted into evidence, Mr. Payne has not established that he meets this criterion.

89 Mr. Payne has a Certificate of Qualification as an Overhead Travelling Crane Operator. As confirmed by Mr. Hawker in his evidence, Mr. Payne is in a trade but not a red seal trade. As a member of the Ship Repair Group, Mr. Payne is engaged in ship repair. However, it is not clear from the evidence that by being a tradesperson, he is a journeyperson as well.

90 With respect to the second type of possible certification, involving expertise in the FMF supporting trades, no evidence was introduced calling into question the respondent’s determination that Mr. Payne does not meet this requirement. The qualifications that would satisfy this requirement are identified in the asterisked portion of the JOA. The only crane operators listed are those with provincial licences for jetty or mobile cranes, which Mr. Payne does not hold.

91 However, with respect to the final type of education/certification qualification (i.e. provincial certification in a trade relevant to ship repair), the respondent failed to provide an effective response to counter Mr. Payne’s submission that he possesses this certification. This criterion is defined broadly in the JOA and appears to encompass Mr. Payne’s provincial qualification as an Overhead Travelling Crane Operator. His position is classified in the Ship Repair occupational group and he operates his bridge crane at FMF Cape Scott, as do the mobile and jetty crane operators who are accepted FMF supporting trades.

92 While it may have been the respondent’s intent to exclude bridge crane operators from this appointment process by omitting this trade in the asterisked portion of the education/certification section, the remaining portions of the education/certification section cannot be ignored. If the respondent wished to exclude bridge crane operators, it should have more clearly established the certification qualifications. It may not have been the respondent’s intention to include bridge crane operators in this assessment process, but the wording of the JOA appears to effectively include them.

93 Accordingly, the Tribunal finds that the respondent erred in its assessment of Mr. Payne against the third education/certification qualification in the JOA. This error is serious as it resulted in Mr. Payne’s elimination from the process. In so doing, the Tribunal finds that the respondent abused its authority.

Decision

94 As stated earlier in this decision, the Tribunal finds that the respondent abused its authority in screening Mr. Burke out of the first appointment process. Mr. Burke pointed out that the pool of qualified candidates resulting from the first appointment process has expired. Therefore, as corrective action, he requested that Tribunal simply make a finding of abuse of authority.

95 The Tribunal therefore finds, pursuant to its authority under s. 81(1) of the PSEA, that the respondent abused its authority in screening Mr. Burke out of appointment process 10-DND-IA-HALFX-347018.

96 Mr. Payne requested that if his complaints were upheld, the Tribunal should revoke all appointments made from the two appointment processes subject to his complaints. He does not seek an opportunity to be reassessed because he does not feel that he will be successful in the written exam due in large part because he did not get any additional prior training, which he alleges the respondent had wrongly denied him.

97 Whether or not Mr. Payne’s requests for training should have been granted is not a matter for the Tribunal to consider in the context of these complaints. The Tribunal believes that in the present circumstances, a reassessment of Mr. Payne’s education/certification qualifications against the third criterion in the JOA would have been the appropriate corrective action. Given that Mr. Payne does not wish to continue in the appointment process and lacking any evidence that the appointees from these two appointment processes were not qualified, the Tribunal does not believe that revocation would be an appropriate corrective action in this case.

98 Therefore, while the Tribunal finds, pursuant to its authority under s. 81(1) of the PSEA, that the respondent abused its authority in screening Mr. Payne out of appointment processes 10-DND-IA-HALFX-347018 and 11-DND-IA-HALFX-355475, no corrective measures are ordered.

Kenneth J. Gibson
Member

Parties of Record

Tribunal Files:

2011-0695/1224/0700

Style of Cause:

Raymond Payne and Michael Burke and the Deputy Minister of National Defence

Hearing:

January 22-23, 2013
Halifax, NS

Date of Reasons:

May 23, 2013

APPEARANCES:

For the complainants:

Jillian K. Houlihan

For the respondent:

Adrian Bieniasiewicz

For the Public
Service Commission:

John Unrau
(written submissions)