FPSLREB Decisions

Reasons for Decision

Introduction

1 Martin Gaudreau, the complainant, applied for a position as Boatswain, Group and Level SC-DED-05, at the Canadian Coast Guard, Fisheries and Oceans Canada. He argues that the respondent, the Deputy Minister of Fisheries and Oceans, abused its authority in establishing the essential qualifications for the position and in finding that he was not qualified for the position. According to the complainant, the respondent abused its authority by using reference checks as a method of assessment and by finding, based on the references, that the complainant did not have some of the essential qualifications for the position. He further argues that the reference checks were not properly conducted and that the score he received from the assessment board is not reliable because it is based on an inaccurate summary of what the referees said. Finally, the complainant argues that the respondent was biased against him during the appointment process.

2 The respondent denies abusing its authority in conducting the appointment process and when assessing the complainant’s qualifications. According to the respondent, the complainant failed to demonstrate two essential qualifications: leadership and interpersonal relationships. The respondent argues that it did not have to consider other information, such as favourable performance appraisals from the complainant’s supervisors. The respondent also denies bias against the complainant.

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

Background

4 On August 13, 2010, the respondent initiated an advertised internal appointment process to staff two SC‑DED-05 Boatswain positions in the Canadian Coast Guard, Fleet Directorate, in Trois-Rivières, Québec.

5 The appointment process sought to create a pool of qualified candidates with a view to making indeterminate appointments, term appointments or acting appointments as needed. The complainant was a candidate in the advertised process.

6 The candidates had to provide information to the assessment board to show that they had the necessary certification and the required level of experience. Other information was to be obtained through reference checks.

7 The assessment board found that the complainant did not have two essential qualifications for the position, namely leadership and good interpersonal relationships. He was therefore eliminated from further consideration.

8 On July 25, 2011, the respondent sent the complainant a letter stating the names of those being proposed for appointment under the above-mentioned process.

9 On August 12, 2011, the complainant submitted a complaint of abuse of authority to the Public Service Staffing Tribunal (the Tribunal), under section 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA).

Issues

10 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in establishing the essential qualifications for the position?
2. Did the respondent abuse its authority by using reference checks as a method of assessment and by finding, on the basis of the references, that the complainant did not meet the leadership and interpersonal relationships qualifications?
3. Was the staffing process tainted by bias against the complainant?

Analysis

11 Section 77(1)(a) 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 by reason of an abuse of authority by the PSC or the deputy head in the exercise of its or his or her authority under s.30(2) of the PSEA, which deals with the assessment of merit.

12 Broad discretion is given to managers under s.30(2) of the PSEA to establish the necessary qualifications for the position they want to staff and to choose the person who not only meets the essential qualifications but is also the “right fit”. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at para. 63. However, this authority is not absolute and managers must not abuse it.

13 The expression "abuse of authority" is not defined in the PSEA. However, s.2(4) states that it includes "bad faith and personal favouritism." In Tibbs, the Tribunal held that it is clear from the PSEA that abuse of authority is more than mere errors and omissions.

14 The Tribunal has stated in many decisions that the onus is on the complainant to prove, on a balance of probabilities, that there was abuse of authority in an appointment process (see, for example, Tibbs at para. 49).

Issue I: Did the respondent abuse its authority in establishing the essential qualifications for the position?

15 The complainant argues that the respondent abused its authority in establishing the essential qualification for the position, specifically by identifying certain personal suitability qualifications with an asterisk to indicate that good performance with respect to these aspects could be used for appointment purposes.

16 Lise Richard, Superintendent, Marine, and a member of the assessment board, explained that the respondent decided to require leadership and interpersonal relationships as personal suitability qualifications because they are necessary for work in an environment where the duties include handling heavy equipment, mooring, stowing, towing, search and rescue, and so on. Such an environment can be dangerous and the incumbent must spend long periods of time in close proximity with other crew members. Respect for crew members and an ability to mobilize them are important on board ship, according to this witness, as are having a positive attitude and positive behaviour toward subordinates and colleagues.

17 Ms. Richard stated that asterisks were added to certain personal suitability qualifications in the Job Opportunity Advertisement and that their purpose was to indicate that “[p]erformance with respect to the qualities under Essential Qualifications marked with an asterisk may be used for appointment purposes.” She said that the Department wanted to be transparent and that the respondent was therefore stating, right from the start, that judgment, reliability and leadership (the qualifications identified by an asterisk) were not only essential qualifications but could also be used for the purpose of appointing the candidate who was the “right fit”.

18 The Tribunal finds that the complainant has failed to demonstrate that the respondent exercised the authority granted it under s.30(2) of the PSEA in an unreasonable and inappropriate manner. In establishing the essential qualifications of the position, the respondent was entitled to require the above-mentioned personal suitability qualifications and to state that good performance with respect to the asterisked qualifications could be used for appointment purposes. The incumbent did so because it wished to be transparent. Finally, the complainant has not submitted any evidence that calls into question the respondent’s position that these qualifications are necessary to carry out the work.

Issue II:  Did the respondent abuse its authority by using reference checks as a method of assessment and by finding, on the basis of the references, that the complainant did not meet the leadership and interpersonal relationships qualifications?

19 The respondent assessed the personal suitability of the candidates solely through reference checking. In the complainant’s case, three former supervisors identified by the respondent provided information about him: Alain Lacerte, Martin Chouinard and Jean-Luc Dugal (the referees).

20 Firstly, the complainant submits that the respondent’s assessment of his personal suitability qualifications should not have been limited to a reference check since certain statements made by the referees contradict comments made by his supervisors in previous performance appraisals. In other words, he argues that the respondent should not have assessed his personal suitability on the sole basis of the comments of the referees, because their comments do not provide a complete picture of his performance. Instead, in his view, the respondent should have considered other information, such as the favourable performance appraisals made by his supervisors who, in past years, have stated that he has the necessary knowledge and skills to occupy an indeterminate Boatswain position. It should be noted that at the time of the appointment process, the complainant had held repeated acting appointments as Boatswain almost without interruption for 17 years.

21 Several of the complainant’s performance appraisals, prepared by various supervisors since 1993, were filed as exhibits. They are favourable to him. The comments indicate that he showed, through exemplary behaviour, technical knowledge and experience, that he is fit to occupy a Boatswain position on Coast Guard vessels on a permanent basis. One of his supervisors noted in one assessment that when the complainant is the boatswain, the results are a vessel that is well maintained and has a good working atmosphere on board.

22 Lucie Lefrançois, a Coast Guard navigating officer, who worked with the complainant starting in April 2011, also affirmed in an affidavit that the complainant is reliable, that he is sure of himself, and that he is very authoritarian and controlling toward the seamen but is always striving to improve on this point.

23 Section 36 of the PSEA provides considerable discretion to those with staffing authority to choose and use those assessment methods that will enable them to determine whether the person meets the essential qualifications.

24 This section thus gives managers discretion to determine the way in which the essential qualifications will be assessed. However, as the PSC notes in its written submissions, the methods must be such as to assess the essential qualifications and other merit criteria effectively and fairly.

25 In Jolin v. Deputy Head of Service Canada, 2007 PSST 0011, at para. 77, it was established that for the Tribunal to find that there was abuse of authority in the selection of assessment methods, the complainant must show that the result is unfair and that the assessment methods are unreasonable and do not assess the qualifications contained in the Statement of Merit Criteria.

26 The Tribunal finds that the evidence adduced at the hearing fails to demonstrate that the method selected, namely reference checking, did not allow for a satisfactory assessment of the qualifications in question. In other words, the complainant has not established that reference checks were an unreasonable method of assessment that could not assess the qualifications in question, or that the result was unfair.

27 It was up to the assessment board to select the method of assessing candidates’ personal suitability qualifications. The board decided to use reference checking rather than performance appraisals. The PSC guide Checking References – A Window into the Past states that a reference check is one of the most useful sources of information on a candidate’s achievements or previous performance.

28 This choice of assessment method falls fully within the discretion that is given to the respondent under s.36 of the PSEA. The respondent was not obliged to consider the complainant’s performance appraisals when assessing his qualifications. The Tribunal therefore finds that the complainant failed to demonstrate that the respondent abused its authority when it decided to assess personal suitability through reference checking.

29 The complainant further submits that the reference check was done incorrectly and that the score he was given by the assessment board is not reliable because it is based on an inaccurate summary of what the referees said.

30 The respondent argues that the reference check was carried out correctly and that the score given to the complainant by the assessment board is reliable and is based on a satisfactory summary of what the referees said.

31 For the reasons that follow, the Tribunal concludes that the evidence adduced at the hearing does not demonstrate that the reference check led to an inappropriate assessment.

32 The complainant called the three referees as witnesses at the hearing. They said that Commanding Officer Dany Boudreault, the chair of the assessment board, met with them individually and took down their answers on a reference form. According to these witnesses, he summarized what they said about the complainant or the examples they gave. They reviewed their answers as recorded by Mr. Boudreault, and then confirmed that the answers reflected the essence of their comments.

33 Chief Officer Chouinard said that he did not use such blunt, curt language as sometimes appears in the notes taken by Mr. Boudreault. He did not however deny raising the issues noted by Mr. Boudreault. Mr. Chouinard said that the notes do summarize his comments even though, in his view, the complainant should be seen as a good candidate. Indeed, in his 2008-09 appraisal of the complainant, Mr. Chouinard wrote these same general positive comments about the complainant but added that he should control his mood swings when confusing situations arise.

34 Mr. Lacerte, who is a ship’s Commanding Officer, stated that the notes taken by Mr. Boudreault are a broad outline of what he said about the complainant. Mr. Dugal, who is a Navigation Officer, also stated that the reference form summarizes his answers to the questions he was asked about the complainant.

35 Thus, the notes taken by Mr. Boudreault do reflect, in substance, the comments made by the referees. They are not “inaccurate”, as suggested by the complainant, even though they are brief and sometimes use blunt language. There is therefore no evidence that the notes fail to reflect what the referees said.

36 After Mr. Boudreault met with all the referees, he and Ms. Richard reviewed and consolidated the referees’ answers. They then assigned the candidates scores for each of the essential qualifications based on a pre-established answer key. The complainant is challenging the scores he was given for two of the essential qualifications.

37 The role of the Tribunal is not to re-assess the candidates but to determine whether there was an abuse of authority during the appointment process. See Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020, at para. 54. For the reasons that follow, the Tribunal finds that there is no evidence that the scores given to the complainant were unreasonable.

38 The assessment board gave the complainant a score of 50% for interpersonal relationships and 50% for leadership. The pass mark for these qualifications was 60%. According to the answer key used by the board, a score of 50% is between “good” and “poor” performance.

39 In the Tribunal’s view there is a satisfactory explanation for the scores given to the complainant on interpersonal relationships and leadership. He was given scores of 50% because the referees mentioned several serious shortcomings in his behaviour, which the board had to take into consideration. For example, they mentioned certain problems in the complainant’s attitude toward colleagues and subordinates and they indicated that the complainant imposed his leadership. That is in part why the board gave the complainant scores of 50% for these qualifications. There is thus a satisfactory, reasonable explanation for these scores.

40 That said, according to the responses to question 2.1 of the questionnaire, which reads as follows: “[translation] Does [the candidate] work for a common goal or does he pursue his own interests?”, the Tribunal notes that none of the referees replied that the complainant works for his own personal goals. However, the first sentence of the summary prepared by Mr. Boudreault to document the scores which the board gave the complainant reads as follows: “[translation] Mr. Gaudreau works for his personal goals”. That sentence is thus erroneous.

41 Boudreault was unable to explain why he wrote this. He was also unable to explain why he inserted ellipsis marks (...) and sequences of exclamation marks here and there on the reference forms while he was summarizing the referees’ comments. He was uncooperative on this point and limited himself to saying that he could no longer remember.

42 The Tribunal concludes that Mr. Boudreault erred when he wrote that the complainant works for his personal goals. However this was an isolated error; the remainder of the summary he prepared is supported by the referees’ answers.

43 As explained in Tibbs, at para. 73, “abuse of authority is more than mere errors and omissions”. Since the remainder of the summary is supported by the referees’ answers, the Tribunal finds that the scores given to the complainant by the assessment board are reasonable. The board was in a position to assign scores of 50% for interpersonal relationships and leadership because of the shortcomings in his behaviour that were mentioned by the referees. For these reasons, the Tribunal concludes that the complainant has failed to establish that there was abuse of authority in relation to the reference check.

44 The complainant further argues that the score given to him by the board is not reliable because it is not identical to the score given to him by the referees. On the form containing the questions and the referees’ answers, a score was often suggested by the referees (with or without the assistance of those responsible for the assessment) for each of the personal suitability qualifications. However, Ms. Richard and Mr. Boudreault explained that the board did not rely on the referees’ suggested scores to decide what score to give the candidates.

45 The PSC guide Checking References – A Window into the Past states that it is up to those responsible for the assessment and not up to the referees to assess qualification-related information. The respondent was thus right not to use the scores suggested by the referees when deciding what score to give the candidates. The Tribunal observes that the respondent wisely relied on the answer key to determine the score to give candidates for each of the qualifications.

46 Finally, the complainant argues that the appointment process was tainted by irregularities because, for example, a letter was sent to him on June 3, 2011, in which he was informed that he could have an informal discussion with the assessment board, but on that day he had not yet been informed that he had been screened out of the appointment process.

47 He stated that it was not until June 13, 2011, that he received a letter informing him officially that he had been screened out because he did not meet two of the essential qualifications.

48 The respondent stated that a letter dated May 30, 2011, should have been sent to the complainant but it had not in fact been sent due to an administrative error.

49 The evidence shows that a letter should have been sent to the complainant on May 30, 2011, but the complainant did not receive the letter. However this error had no significant impact on the complainant. More particularly, it did not affect the outcome of the appointment process and it did not prevent him from making a complaint to the Tribunal. Thus the Tribunal finds that this was a simple error or omission, which does not constitute abuse of authority.

50 In conclusion, the Tribunal finds that the complainant has not shown, on a balance of probabilities, that the respondent abused its authority (1) by selecting reference checking as a method of assessment, or (2) by concluding, on the basis of the referees’ statements, that the complainant was not qualified with respect to leadership and interpersonal relationships.

51 Finally, the respondent acknowledged during the hearing that over the 17 years preceding this appointment process, the complainant had occupied a Boatswain position almost without interruption in the form of repeated acting appointments. The respondent said that while it had concluded that the complainant did not have the leadership and interpersonal relationships qualifications for this appointment process, it did not mean he had not shown leadership or maintained good interpersonal relationships with his peers over the course of his career. In any event, with respect to this appointment process, it was reasonable for the respondent to find that the complainant had not achieved the passing mark for two of the essential qualifications.

Issue III:  Was the staffing process tainted by bias against the complainant?

52 In Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010 at paras. 60-74, the Tribunal determined that bias, including reasonable apprehension of bias, can constitute abuse of authority in relation to assessment and appointment decisions made under the PSEA. The Tribunal adopted the objective test of reasonable apprehension of bias described in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p. 394, a decision of the Supreme Court of Canada.

53 The test, paraphrased for the purpose of this complaint, is whether a reasonably informed bystander could reasonably perceive bias on the part of one or more members of the assessment board. The board was made up of Boatswain Yves Richard, Ms. Richard and Mr. Boudreault.

54 The complainant’s argument that there was bias or a reasonable apprehension of bias against him is based on the fact that some of the actions, comments and events that occurred before or during the appointment process create a reasonable apprehension of bias.

55 The respondent denies bias during the appointment process: the complainant was screened out of the process because he did not meet the essential qualifications for the position.

56 Members of boards assessing candidates in appointment processes have a duty to conduct their assessments fairly and in a manner that does not give rise to a reasonable apprehension of bias. If a reasonably informed bystander looking at the process could reasonably perceive bias on the part of one or more of the assessment board members, then the requirement to act fairly has not been met. See Pellicore v. President of the Canada Border Services Agency, 2010 PSST 0023, at para. 46. If it is established that there is a reasonable apprehension of bias, the Tribunal may find that there has been abuse of authority.

57 For the following reasons, the Tribunal finds that the complainant has not shown that the respondent’s actions or comments in relation to the staffing process, taken separately or together, create a reasonable apprehension of bias against the complainant.

58 The complainant’s first argument is that the assessment board reassessed another candidate who had been screened out of the process but did not reassess him. According to the evidence adduced by the complainant, the other screened out candidate was invited to an informal discussion after filing a complaint to the Tribunal. During this discussion, he requested a review of his candidacy, and the request was granted.

59 The evidence shows that the assessment board agreed to reassess this other candidate because the difference between his score and the passing mark for the essential qualification he did not meet was very small. Ms. Richard stated that he was just one mark short of the mark he needed to be added to the pool of qualified candidates. After consultation with two referees, the board determined that he was qualified and he was added to the pool of qualified candidates.

60 There is no evidence that the complainant asked the board to reassess his candidacy. The Tribunal also notes that the difference between the complainant’s score and the passing mark for the two essential qualifications at issue was not minor but rather quite large. Under the circumstances, the Tribunal finds that the complainant has not shown that the assessment board’s decision to reassess another person’s candidacy but not his was unreasonable and that this decision created a reasonable apprehension of bias.

61 The complainant’s second argument is that before the appointments were announced, he had heard someone say that one individual was going to be very surprised by the results. He was unable to identify the speaker but he felt that he was the subject of this remark because he was expecting to be appointed to the position. He found the rumour worrisome and he was afraid that the assessment board was biased against him and would reject his candidacy.

62 The Tribunal notes that this is a matter of hearsay, and it does not in itself create a reasonable apprehension of bias against the complainant.

63 The complainant’s third argument is that the respondent has enjoyed his services as an acting boatswain for almost 17 years, until as recently as June 23, 2011, but refuses to give him a permanent boatswain position. According to the complainant, this shows that the respondent is biased against him; the respondent could have drawn on its direct knowledge about his performance to appoint him to the position but failed to do so.

64 In her testimony, Ms. Richard acknowledged that the respondent had often called on the complainant to serve as boatswain on an acting basis. She also confirmed that she was familiar with the positive performance appraisals of the complainant in the past. She explained however that for this particular appointment process, the assessment board based itself not on performance appraisals but on reference checking, so as to obtain information from people who worked most closely with the candidates.

65 It has been established that this method of assessment, namely reference checking, was acceptable and that the decision of the assessment board to rely on information provided by people who had recently worked closely with the complainant was reasonable. Under the circumstances, the Tribunal finds that the complainant has not shown that this decision gave rise to a reasonable apprehension of bias.

66 The complainant’s fourth argument is that the appointment process was unfair because one of the individuals appointed, Pierre Gilot, is the husband of an employee of Ms. Richard, and because two of the people on the board, Yves Richard and Lise Richard, are brother and sister. The complainant maintains that there was most likely bias in the assessment of candidates.

67 Ms. Richard, who is the delegated authority in this process, stated that her subordinate, Mr. Gilot’s wife, supervises the heads of Bridge, Engine Room and Logistics work. She said that her subordinate’s role was limited to submitting the request to initiate the appointment process. She also stated that the employees of her subordinate played no significant role in the process. One of these employees simply helped Mr. Boudreault identify the recent supervisors of the candidates.

68 The Tribunal concludes with respect to the issue of reasonable apprehension of bias that a reasonable, informed observer would not think that the complainant was assessed differently from the appointees, including Mr. Gilot. The assessment board prepared and used a structured reference check process to gather information about the candidates. In an effort to ensure a consistent approach, each of the referees contacted was asked the same questions. The assessment board then determined whether the information provided by the referees demonstrated that the candidate possessed the essential qualifications being assessed through the reference checks. The Tribunal finds that the complainant has not proven that he was treated differently from the other candidates in the process or that there was a reasonable apprehension of bias in the assessment of the candidates.

69 Finally, the Tribunal considered the matter of the composition of an assessment board in Sampert v. Deputy Minister of National Defence, 2008 PSST 0009, at para. 53:

There is no provision in the PSEA which requires a deputy head to establish an assessment board or that it have a certain composition (for example, to have a human resources officer on the board). Whether an assessment board is improperly constituted is a question of fact which depends on the specific complaint and the evidence presented at the hearing.

70 In this case, the evidence does not show that the process was unfair to the complainant because Yves and Lise Richard are brother and sister. With respect to the question of reasonable apprehension of bias, a reasonable, informed observer would not think, by all appearances, that Mr. Richard or Ms. Richard had anything to lose or gain from this appointment process if the complainant were appointed or not appointed. In other words, there is no evidence to show that they were unable to make a fair decision.

71 Having reviewed the evidence, the Tribunal concludes that a well-informed person who considers all the facts would not be able to conclude that there is reasonable apprehension of bias by the board against the complainant.

Decision

72 For these reasons, the complaint is dismissed.

Nathalie Daigle
Member

Parties of Record

Tribunal File:

2011-0675

Style of Cause:

Martin Gaudreau and the Deputy Minister of Fisheries and Oceans

Hearing:

February 19-20, 2013
Quebec, QC

Date of Reasons:

June 13, 2013

APPEARANCES:

For the complainant:

Michel Cordeau

For the respondent:

Pierre-Marc Champagne

For the Public
Service Commission:

Marc Séguin
(written submission)