FPSLREB Decisions

Reasons for Decision

Introduction

1 Lucy Richard, the complainant, participated in an internal advertised appointment process to staff for an indeterminate period various positions at the AS-02 group and level in different garrisons of the Department of National Defence (DND), including a position as administrative officer. Her application was rejected because the assessment board determined that she did not meet two of the essential qualifications established for the position.

2 The complainant alleges that the Deputy Minister of National Defence, the respondent, abused its authority in the choice of appointment process. According to the complainant, the respondent should have appointed her to the position through a non‑advertised appointment process since she had already occupied the position on an acting basis. She also submits that the respondent abused its authority in the application of merit, more specifically, in its choice of assessment board members, in the establishment of merit criteria and in the assessment of her qualifications.

3 The respondent denies having abused its authority in this appointment process. It submits that it had the right to choose an advertised process to staff the position, that the assessment board was composed of competent individuals, that the merit criteria reflected the duties to be performed and that the complainant’s qualifications were properly assessed.

4 The Public Service Commission (PSC) was not represented at the hearing, but it provided the Public Service Staffing Tribunal (the Tribunal) with written submissions describing its relevant appointment policies and guides. The PSC did not take a position on the merits of the complaint.

5 For the reasons set out below, the Tribunal finds that the complainant did not establish that the respondent abused its authority in this appointment process.

Background

6 On September 2, 2009, the respondent posted a Job Opportunity Advertisement on Publiservice, the federal government’s website, to staff different indeterminate positions at the AS-02 group and level at various garrisons. The process was also going to be used to create a pool of qualified candidates for staffing similar positions for different terms in various garrisons.

7 The candidates had to indicate on their employment applications the positions for which they wanted to apply and the complainant chose to apply for the administrative officer position at the Valcartier garrison for an indeterminate period, a position that she already occupied on an acting basis.

8 The assessment board was chaired by Marc Tremblay, Human Resources (HR) advisor. Captain (Capt) Karla Lyster, food services officer, and Claude Samson, HR advisor, were also on the board. Marie‑Ève Gamache was the HR advisor in this appointment process, but she was not on the assessment board.

9 The complainant was eliminated from the appointment process because she did not meet two of the essential qualifications established for the position: initiative and ability to promote programs to a wide range of stakeholders.

10 On May 10, 2011, the respondent posted the Notification of Appointment or Proposal of Appointment for the appointment of a person to the administrative officer position for an indeterminate period.

11 On May 16, 2011, the complainant filed a complaint of abuse of authority with the Tribunal pursuant to s. 77(1)(a) and (b) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA).

Issues

12 In order to determine whether the respondent abused its authority in this appointment process, the Tribunal must decide the following issues:

1. Did the respondent abuse its authority by staffing the position using an advertised appointment process?
2. Did the respondent abuse its authority in its choice of assessment board members?
3. Did the respondent abuse its authority in establishing the merit criteria?
4. Did the respondent abuse its authority in its assessment of the complainant’s qualifications?

Analysis

13 Section 77(1) of the PSEA states that a person in the area of recourse may make a complaint 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 appointment process. Abuse of authority is not defined in the PSEA, but s. 2(4) states that “[f]or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism”.

14 As has been established in the Tribunal’s case law, this wording indicates that abuse of authority must be interpreted broadly and is not limited to bad faith and personal favouritism. In Kane v. Canada (Attorney General), 2011 FCA 19, the Federal Court of Appeal upheld the Tribunal’s interpretation that an error can also constitute an abuse of authority (para. 64). (The Court of Appeal’s decision was set aside on a different ground by the Supreme Court of Canada in Canada (Attorney General) v. Kane, 2012 SCC 64.)

15 However, as is clear from the preamble and the scheme of the PSEA, minor errors generally do not constitute an abuse of authority. Whether or not an error constitutes an abuse of authority will depend on the nature and seriousness of the error. Abuse of authority can also include an omission or improper conduct. The scope of the omission or the degree to which the conduct is improper will determine whether or not they constitute abuse of authority. See, for example, Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008.

16 As the Tribunal has established in many decisions, the complainant bears the burden of proving, on a balance of probabilities, that the respondent abused its authority in the appointment process (Tibbs, at paras. 49 and 55).

Issue I:  Did the respondent abuse its authority by staffing the position using an advertised appointment process?

17 The complainant submits that the respondent abused its authority by choosing an advertised appointment process for staffing the administrative officer position. According to her, the respondent should have appointed her to the position through a non‑advertised appointment process because she had already been successfully filling the position on an acting basis.

18 The complainant’s substantive position at the time of the appointment process was administrative assistant at the CR-03 group and level. In March 2009, Capt Alfa Diakité, Chief of Staff, Office of the Commander, 5 Canadian Mechanized Brigade Group (5 CMBG), asked her to fill the position of administrative officer on an acting basis. The complainant acted in this position until July 2011.

19 Aurélie Delaurière is an HR advisor. She did not participate in the appointment process, but her responsibilities include the brigade in which the position to be staffed is located, that is, 5 CMBG. She explained that the complainant held the position of acting administrative officer for more than two years because the process for staffing the position for an indeterminate period took longer than expected.

20 The complainant stated that Capt Diakité wanted to appoint her to the position of administrative officer for an indeterminate period through a non-advertised process because she had been successfully filling the position, which showed that she was qualified to do it.

21 Ms. Delaurière pointed out that Capt Diakité did not have the delegated authority in this appointment process.

22 Lieutenant-Colonel (LCol) Paul Chamberland had the rank of major during the appointment process. He stated that he had the delegated authority to staff the position in question. He chose to staff it for an indeterminate period using an advertised appointment process in order to make the process as accessible as possible. This is also what HR services recommended.

23 The Tribunal finds that the complainant failed to establish that the respondent abused its authority by choosing to staff the position for an indeterminate period by using an advertised process. Section 33 of the PSEA clearly states that the PSC (or the delegated manager) may use an advertised or non-advertised process to make an appointment. Therefore, the PSEA provides broad discretion in the choice of appointment process. The respondent chose to staff the position by using an advertised appointment process because it wanted to make the position more accessible. Appointing a person to an acting position does not obligate the delegated manager to later appoint that person to the position for an indeterminate period by using a non‑advertised process.

24 The Tribunal also concludes that the fact that, according to the complainant, Capt Diakité would have liked that she be appointed to the position on this basis is of no consequence. Capt Diakité did not have the delegated authority to staff this position and did not play any role in the appointment process. His wishes are therefore not relevant.

Issue II:  Did the respondent abuse its authority in its choice of assessment board members?

25 The complainant submits that there is a perception of bias in the appointment process since Capt Lyster was in a conflict-of-interest situation because she reported to the complainant’s spouse.

26 The Tribunal dealt with the issue of the composition of an assessment board in paragraph 53 of the decision in Sampert v. Deputy Minister of National Defence, 2008 PSST 0009:

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.

27 The complainant said that she was surprised to see Capt Lyster when she went to the interview. She did not think that Capt Lyster’s presence was appropriate since she reported to the complainant’s spouse. The complainant had met her once at her spouse’s office. She had never had any altercation with her. However, she did not tell the assessment board members that she was surprised to see Capt Lyster.

28 Yvon Richard is the complainant’s spouse. He was not involved in the appointment process at issue. He is currently a housekeeping services officer for 5 Area Support Group (5 ASG), and he is also assistant to Denis Pageau, a personnel services officer for 5 ASG, who asked him to assume some of his duties. He stated that he was Capt Lyster’s supervisor. In an email dated August 18, 2005, Mr. Pageau informed his staff that Mr. Richard would be a personnel services assistant/officer for 5 ASG. As such, he would be responsible for ensuring the smooth operation of the section and for coordinating various files to be sent to senior levels. The email stated that Mr. Richard would become the immediate supervisor of two people named in the email (this did not include Capt Lyster). Mr. Pageau added that Mr. Richard would replace him during his absences.

29 Mr. Richard stated that, as Mr. Pageau’s assistant, he assigned tasks to Capt Lyster. For example, he asked Capt Lyster and the other section heads for HR statistical reports. Mr. Richard stated that, although he was technically Capt Lyster’s colleague, he was “slightly superior to her” [translation]. Mr. Richard stated that he did not have the authority to approve Capt Lyster’s leave requests and he did not prepare her annual performance evaluations. He added that he had a good working relationship with her.

30 Capt Lyster joined the Canadian Armed Forces in 2000 and attained the rank of captain in 2008. She has been managing the kitchens in Valcartier and the Québec region since 2009. She stated that Mr. Richard is a peer; he is not her supervisor. Mr. Pageau is her supervisor. He is the one who approves her leave requests and prepares her performance reviews.

31 Capt Lyster stated that she does not remember having met the complainant before the interview and that she did not know at the time of the interview that the complainant was Mr. Richard’s spouse. She found out one week after the interview. She added that she had never had any problems with Mr. Richard whom she had known for six years.

32 Mr. Tremblay stated that Capt Lyster told him the complainant’s spouse worked in her unit, but he does not remember exactly whether she gave him this information before or after the interview.

33 The Tribunal finds that the complainant has failed to establish that there was a reasonable apprehension of bias in the appointment process because of a conflict of interest. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL), the Supreme Court of Canada described the test for a reasonable apprehension of bias as follows at paragraph 22 (QL): “The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.” The objective tests set out by the Supreme Court also apply to members of assessment boards in an appointment process under the PSEA. See, for example, Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010 at paras. 64-71.

34 The Tribunal finds that Mr. Richard is not Capt Lyster’s supervisor. Mr. Richard replaces Mr. Pageau when necessary, but he does not prepare Capt Lyster’s performance evaluations and does not approve her leave. Therefore, there is no reporting relationship between Mr. Richard and Capt Lyster. Mr. Pageau is Capt Lyster’s supervisor since he is the one who performs the above-mentioned tasks.

35 Even if the evidence had established that Mr. Richard was Capt Lyster’s supervisor, this would not have established a conflict of interest or a reasonable apprehension of bias against the complainant. Not appointing Mr. Richard’s spouse could not in any way benefit Capt Lyster. The opposite could have been different. If Mr. Richard had been Capt Lyster’s supervisor (which the complainant failed to establish), and the assessment board had decided in favour of the complainant, a candidate who had been eliminated from the process could have argued that Capt Lyster had decided in favour of the complainant to please her supervisor. However, the opposite happened. The assessment board, including Capt Lyster, decided that the complainant did not have the necessary qualifications for the position.

36 There is no evidence either that Capt Lyster had any negative feelings toward Mr. Richard that would have prompted her to assess his spouse’s qualifications negatively. Capt Lyster said in her testimony that she had never had any problem with Mr. Richard and he confirmed that he had a good relationship with her. Furthermore, Capt Lyster could not have been influenced by the marital relationship between Mr. Richard and the complainant because she did not know at the time of the interview that the complainant was Mr. Richard’s spouse. Mr. Tremblay stated in his testimony that he had discussed the marital relationship between Mr. Richard and the complainant, but he was not certain whether this discussion had taken place before or after the interview. The Tribunal accepts Capt Lyster’s testimony on the subject because she is certain that she did not know during the interview that Mr. Richard and the complainant were married, whereas Mr. Tremblay is uncertain. Therefore, the Tribunal finds that the respondent did not abuse its authority in its choice of assessment board members.

Issue III:  Did the respondent abuse its authority in establishing the merit criteria?

37 The complainant submits that the merit criteria did not reflect the duties of the position because they were too general. She also submits that the respondent should have included experience with the department’s administrative processes in the Statement of Merit Criteria (SMC).

38 Mr. Richard stated that the position to be staffed was not in his section, but he was very familiar with the requirements of the position. He explained that there are different kinds of administrative officer positions. The position being staffed involved helping people who were working in a combat zone, which Mr. Richard called first-line positions. According to Mr. Richard, there are also administrative officers who look after less urgent business and who are not in contact with troops in combat. These are second-line positions. For example, they look after moving members from one base to another. They may also look after HR. There are also administrative officers who work at national headquarters in fields such as supply. According to Mr. Richard, the position being staffed is a position in the first category, that is, a position with duties to support members in combat zones. It is much more complex work than the work done by other administrative officers. According to him, the SMC that the respondent established for this appointment process was too general and was not adapted to the position of an administrative officer whose duties consist of helping troops in combat. It can be used to staff the other two categories of administrative officers described above.

39 The complainant also stated that the position being filled involved helping troops in combat. Usually, this position is filled by a Forces member, an adjutant. She was the first civilian employee to occupy the position. At the beginning, she took the training for adjutants. When she occupied the position on an acting basis, she looked after the administrative preparations for the deployment of troops. For example, in the case of soldiers deployed to Afghanistan, she informed families of the death of a soldier. For the disaster relief mission following the earthquake in Haiti, she had three days to ensure that the military members were ready to leave. This included obtaining the special passports needed for these members. Since the members who had served in Afghanistan could not accept another mission for a year, the complainant prepared a database that identified when the members could leave on another mission. This database was used by all the brigades.

40 The complainant submitted in evidence an email from Capt Diakité dated May 5, 2011, in which he wrote that the criteria in the SMC were not well suited to the position since the complainant had done exceptional work in the administrative officer position for two years and was unable to qualify for the position.

41 Ms. Delaurière stated that the administrative officer positions are not divided into categories such as Mr. Richard described and she had never heard of “first-line” or “second-line” positions.

42 The complainant pointed out that one of the essential qualifications for experience in the form used to initiate the appointment process is “experience with the various administrative processes in DND and/or the CF [Canadian Forces] (performance evaluations, grievances, awards and recognition, or other)” [translation]. The respondent dropped this experience requirement when preparing the SMC. The complainant submits that the respondent should have kept this qualification since it is necessary for performing the duties of the position, given its military nature.

43 LCol Chamberland stated that he had established the merit criteria. According to him, they are all related to the duties of the position. The criteria are general because the appointment process is a collective process used to create a pool for staffing various positions in three DND organizations.

44 LCol Chamberland did not include experience with departmental administrative processes in the SMC because a person could learn these administrative processes after being hired. DND has very detailed guidelines on these subjects and a person simply needs to follow them to do the work. Requiring this experience would just have created an unnecessary barrier for candidates who wanted to apply for this position and LCol Chamberland wanted to have an appointment process that was as accessible as possible.

45 The respondent pointed out that it had decided not to require this qualification well before the appointment process. In fact, it did not require this qualification when the complainant was appointed to this position on an acting basis, as can be seen from the notification of appointment for the acting appointment.

46 The Tribunal finds that the complainant failed to establish that the respondent abused its authority in establishing the merit criteria. Section 30(2) of the PSEA gives the deputy head and the manager to whom this authority is delegated broad discretion for establishing the qualifications of a position. This appointment process was a collective process to staff various positions. The SMC shows that the respondent had established six essential qualifications for all the positions, seven specific essential qualifications for the administrative officer position and 17 asset qualifications for all the positions. The respondent could reasonably establish general qualifications provided they were related to the position. The complainant did not identify which qualifications were not related to the administrative officer position. Given the broad discretion provided under the PSEA, the respondent did not have to establish more specific criteria that apply only to administrative officers who would be supporting troops in a combat zone, as the complainant wanted.

47 The Tribunal also finds that, given this discretion, the respondent did not have to include in the SMC experience with departmental administrative processes as the claimant wanted since employees can learn these administrative processes after they are hired and the respondent did not want to create an unnecessary barrier that would hinder access to the position. The respondent had not even required this qualification when it had appointed the complainant to the position on an acting basis. Therefore, this was not the first time that the respondent found it unnecessary for the candidate to have this experience at the time of appointment. Consequently, the Tribunal finds that the respondent did not abuse its authority in establishing the merit criteria.

Issue IV:  Did the respondent abuse its authority in its assessment of the complainant’s qualifications?

48 The complainant submits that the respondent abused its authority in assessing her qualifications.

49 Capt Lyster explained to the Tribunal how the assessment board assessed the qualifications during the interview. The assessment board members compared the candidates’ answers to the answers of other candidates and the expected answers. The board also gave points for good answers even if they were not on the list of expected responses. The marks were assigned by consensus, using a rating grid. The pass mark was 12 out of 20, that is, 60%.

50 In the case of the “initiative” qualification, the interview question that assessed this qualification asked the candidates to give examples showing that they possessed this qualification. Capt Lyster stated that the complainant described how she dealt with an incident where a member failed a drug test. The assessment board considered this to be a good answer since this was a concrete example that showed initiative. The complainant also mentioned various work documents that she had prepared well in advance of the deadline set for these documents. According to Capt Lyster, preparation of these documents was part of the complainant’s normal duties and this example did not show initiative. The complainant received nine points out of 20 for her answer to this question.

51 Mr. Tremblay also stated that the complainant had mentioned that she did administrative reports in advance. However, this was part of her normal duties even if she did them in advance. This did not show initiative.

52 As for “[a]bility to promote programs to a wide range of stakeholders”, the assessment board gave the candidates a brochure describing DND’s mentorship program before the interview. The candidate had to explain to the assessment board members what mentoring was, why it was useful and why the respondent should set up such a program. The complainant answered that mentoring is good for everyone, that it ensures continuity but that there needs to be a good relationship between the mentor and the person being mentored. The complainant said in her testimony that she was surprised by this question. Mentoring is not a subject usually dealt with during an appointment process.

53 Capt Lyster stated that the complainant was hesitant when answering this question. Her explanations were sometimes confused and complicated. The candidate was supposed to sell the program to the listeners, to convince them and to motivate them. The complainant was not convincing or persuasive enough. She received 10 points out of 20 for this question.

54 Mr. Tremblay also stated that the complainant’s presentation was not convincing. The assessment board was looking for a more persuasive presentation.

55 The Tribunal has stated in many decisions that its role is to determine whether there was an abuse of authority in the appointment process and not to reassess the candidates. See, for example, Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020. Therefore, after examining the two qualifications that the complainant failed, the Tribunal finds that the respondent did not abuse its authority in this assessment. The respondent could find that the complainant’s answers were not satisfactory for the reasons provided above, including the fact that her answer to the question concerning initiative was missing elements and her presentation on the subject of mentoring was not convincing.

56 The complainant stated that the assessment board did not transcribe her answers in full. For example, in response to the question about initiative, she also mentioned her role in preparing for the relief mission to Haiti. She said during the interview that she did not wait to be given the order to proceed with the preparations for this mission. She started the administrative work required as soon as the respondent announced the deployment of troops to that country. This part of her answer is not found in the notes made by members of the assessment board.

57 The respondent denies this allegation. It maintains that the complainant did not mention this element since none of the three members of the assessment board noted it.

58 The Tribunal finds that the complainant did not establish that the assessment board omitted elements of her answers. In the case of her involvement in the Haiti mission, if the complainant had mentioned this element, one of the assessment board members would most likely have noted it. However, none of them mentioned this element in their notes. It is true that their notes indicate that the complainant mentioned that she had received a commendation and that this commendation, which she filed in evidence, dealt with the Haiti mission and other subjects, but the assessment board’s notes do not show that the complainant told the members about the content of this commendation when answering the question regarding initiative. The notes taken by the assessment board members during the interview generally reflect the oral answers given during the interview more accurately than a description of the answer given long after the interview.

59 Another piece of evidence supports the respondent’s arguments. The assessment board gave the candidates the interview questions before they were interviewed. The candidates could make notes and refer to them during the interview. The complainant’s notes do not mention the Haiti mission in response to the initiative question.

60 The notes of all the assessment board members indicate that she mentioned the Haiti mission in her response to the previous interview question, which assessed the reliability and trustworthiness of a candidate. The evidence shows that the complainant thinks that she mentioned the Haiti mission in her response to the question that evaluated initiative, but that she in fact mentioned it in her answer to this other interview question.

61 The complainant submits that the respondent could not find that she was not qualified for the position since she had successfully acted in the position for over two years. As mentioned above, she received a commendation from the brigadier-general for her exemplary work in this position.

62 The Tribunal cannot accept this allegation. Successfully occupying a position on an acting basis does not guarantee success in a subsequent appointment process conducted to staff the same position for an indeterminate period. The qualifications required and the assessment methods used may be more stringent when a position is being staffed for an indeterminate period. It is important to understand that no one is claiming that the complainant is not competent to fill the position for an indeterminate period. The respondent simply submits that she was unable to show during the appointment process that she met the two above-mentioned essential qualifications. As the Tribunal pointed out in Charter v. Deputy Minister of National Defence, 2007 PSST 0048, at para. 37, “[i]n order for a candidate to be appointed to a position, he must demonstrate through the chosen assessment process, that he meets the essential qualifications for the position”. [emphasis added]

63 The complainant submits that the assessment board did not understand her answers. For example, she was very surprised when the assessment board members asked her what Operation Hestia was. This name referred to the Haiti mission and they should have known it.

64 The Tribunal finds that the fact that the assessment board members did not know the code name of a mission does not mean that they were not competent to assess a candidate’s qualifications. The complainant did not show how this lack of knowledge prevented the assessment board from evaluating her initiative and her ability to promote programs to a wide range of stakeholders.

65 The complainant alleges that the questions were asked too quickly during the interview. The Tribunal cannot accept this allegation since the complainant did not show that she had informed the assessment board of this fact or that she had asked the members to slow down when asking her the questions. Therefore, the complainant failed to establish that the respondent was at fault in this regard.

66 The complainant submits that the respondent did not answer her request for an informal discussion in a timely fashion. The informal discussion is covered in s. 47 of the PSEA. The purpose of an informal discussion is not to reassess the candidates but to explain why they were eliminated from the process. See Rozka v.  Deputy Minister of Citizenship and Immigration Canada, 2007 PSST 0046, at para. 76.

67 The complainant states that, on March 28, 2011, she asked to have an informal discussion regarding her elimination from the appointment process. Mr. Tremblay had an informal discussion with her by telephone on April 13, 2011. He told her that she had failed the appointment process and that she had lacked drive and professionalism. The complainant was very surprised by this answer since these two qualities are not among the qualifications in the SMC. At that point, the complainant hung up. This informal discussion lasted only 10 minutes.

68 The Tribunal finds that the respondent answered the complainant’s request in a timely fashion since it held an informal discussion with the complainant a little more than two weeks after her request.

69 The complainant submits that she was eliminated for the wrong reasons since “drive” and “professionalism” are not qualifications in the SMC. The Tribunal finds that the complainant failed to establish that the respondent considered “drive” and “professionalism” to be essential qualifications for the position. The SMC does not mention these qualifications and the interview questions did not mention them. All the documentary evidence indicates that the respondent never assessed these qualifications. It seems that there was a misunderstanding in this regard.

70 The complainant submits that the assessment board should have taken advantage of the informal discussion to correct its errors. The Tribunal notes that it is true that the respondent can correct errors that it discovers during the informal discussion. However, the complainant failed to clearly and precisely explain what the errors were and did not provide any evidence to support that there were errors.

71 Therefore, the Tribunal finds that the complainant failed to establish that the respondent abused its authority in its assessment of her qualifications.

Decision

72 For the above-mentioned reasons, the Tribunal concludes that the complainant failed to establish that the respondent abused its authority in the appointment process. Therefore, the complaint is dismissed.

John Mooney
Vice-Chairperson

Parties of Record

Tribunal File:

2011-0404

Style of Cause:

Lucy Richard and the Deputy Minister of National Defence

Hearing:

October 9 and 10, 2012, and
February 26, 2013
Quebec, QC

Date of Reasons:

June 25, 2013

APPEARANCES:

For the complainant:

Louis Bisson

For the respondent:

Anne-Marie Duquette

For the Public
Service Commission:

John Unrau
(written submissions)