FPSLREB Decisions
Decision Information
The complainant did not attend the scheduled hearing into his complaint even though a Notice of Hearing had previously been sent to all parties. In the 22 months since the complaint was filed, the complainant had not attended pre-hearing conferences as directed nor did he comply with other Tribunal directions despite numerous extensions being given to him at his request. The day before the hearing, the complainant sent an email to the Tribunal stating that he would not attend. The commencement of the hearing was briefly delayed to allow the complainant to connect by teleconference if he wished. When he did not join the hearing, the respondent made a motion to dismiss the complaint. Decision The Tribunal pointed out that according to s. 29 of the Public Service Staffing Tribunal Regulations, when a party fails to appear at a hearing, and the Tribunal is satisfied that the Notice of Hearing was sent to that party, the Tribunal may proceed with the hearing and dispose of the complaint without further notice. The complainant bears the burden of proving, on a balance of probabilities, the allegations of abuse of authority he raises. He cannot merely make allegations of abuse of authority without supporting them with evidence from witnesses, facts and/or documents. The complainant failed to present any evidence in support of his allegations. As a result, he did not discharge his burden of proof. Complaint dismissed.
Decision Content
- File:
- 2011-0398
- Issued at:
- Ottawa, March 8, 2013
KRISHAN KUMAR
Complainant
AND
THE SECRETARY OF THE TREASURY BOARD OF CANADA
Respondent
AND
OTHER PARTIES
- Matter:
- Complaint of abuse of authority pursuant to section 77(1)(b) of the Public Service Employment Act
- Decision:
- Complaint is dismissed
- Decision rendered by:
- Joanne B. Archibald, Member
- Language of Decision:
- English
- Indexed:
- Kumar v. the Secretary of the Treasury Board of Canada
- Neutral Citation:
- 2013 PSST 0008
Reasons for Decision
Introduction
1 Krishan Kumar (the complainant) brought a complaint of abuse of authority against the Secretary of the Treasury Board of Canada (the respondent) concerning the choice of a non-advertised appointment process for an appointment to the EC-07 position of Manager, Office of the Chief Human Resources Officer. In allegations that were submitted prior to the hearing, the complainant stated his concern about personal favouritism, fairness, access, transparency, and merit.
2 The respondent denied that an abuse of authority occurred and stated that the appointed person was chosen as he had qualified in an appointment process for a similar position. He was assessed against the merit criteria for the EC-07 position and found qualified.
3 The Public Service Commission (PSC) did not appear at the hearing, and presented a written submission in which it discussed relevant PSC policies and guidelines. It took no position on the merits of the complaint.
4 For the reasons that follow, the complaint is dismissed. The complainant did not appear at the hearing. No evidence was presented to support the allegations. The Public Service Staffing Tribunal (the Tribunal) therefore finds that the allegations have not been proven.
Background
5 A review of the chronology of pertinent events preceding the hearing follows:
| 2011 | |
|---|---|
| May 10 | Complaint filed with the Tribunal pursuant to s. 77(1)(b) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13. |
| September 27 | Tribunal issues Notice of Hearing scheduled for February 21-22, 2012. |
| November 10 | Tribunal issues Notice of Pre-hearing Conference (PHC) scheduled for January 13, 2012. |
| 2012 | |
| January 13 | Complainant does not appear at PHC. Respondent and PSC are present. |
| January 18 | Tribunal receives email indicating that complainant was not available for PHC and requesting a postponement of hearing until after April 16, 2012. |
| January 19 | Tribunal notifies parties that PHC will be rescheduled. |
| January 30 | Tribunal issues Notice of Hearing rescheduled to May 2-3, 2012. |
| January 31 | Tribunal issues Notice of PHC rescheduled to March 20, 2012. |
| February 9 | Complainant requests postponement of PHC. |
| March 12 | Tribunal notifies parties that PHC will be postponed and issues Notice rescheduling it to April 16, 2012. |
| April 16 | Complainant does not appear at PHC. Respondent and PSC are present. Tribunal issues directions to parties. |
| April 17 | Complainant replies that he is on leave and will not be able to comply with directions. |
| April 25 | Complainant requests postponement of the hearing until at least July 25, 2012. |
| April 26 | Tribunal notifies parties that PHC and hearing will be postponed. |
| April 27 | Tribunal issues Notice of Hearing rescheduled to October 2-3, 2012. |
| June 20 | Canadian Association of Professional Employees (CAPE) advises that it no longer represents the complainant. |
| August 21 | Tribunal issues notice of PHC rescheduled to August 28, 2012. |
| August 26 | Complainant states that he is no longer represented by CAPE and requests rescheduling of PHC and hearing, stating that for medical reasons he will not be available until January 2013. |
| August 28 | Tribunal advises parties that PHC and hearing will be postponed. Parties are advised that hearing will take place March 5-6, 2013. |
| October 9 | Tribunal issues Notice of Hearing re-scheduled to March 5-6, 2013. |
| 2013 | |
| January 2 | Tribunal issues Notice of PHC re-scheduled to January 30, 2013. |
| January 8 | Complainant states that his CAPE representative is not available for the PHC and requests a postponement. CAPE subsequently clarifies that it is not representing complainant in this matter. |
| January 24 | Parties notified that complainant’s request for postponement of PHC and hearing is denied. |
| January 30 | Complainant does not appear at PHC. Respondent and PSC are present. Tribunal issues directions to parties for preparation for the hearing. Complainant is directed to comply by February 7, 2013. |
| February 14 | Tribunal issues directions to parties to confirm that hearing will proceed by teleconference on March 5, 2013, and notes that complainant has failed to comply with directions of February 7, 2013. |
| March 4 | At 4:27 p.m., the Tribunal receives an email from the complainant indicating that he will not attend the scheduled hearing and will not be able to proceed without the help and guidance of CAPE. |
| March 5 | Hearing is held by teleconference. Complainant is not in attendance. |
Preliminary matters
6 As indicated above, on October 9, 2012, the Tribunal issued a Notice of Hearing to the parties, scheduling the hearing for March 5-6, 2013, in Ottawa, Ontario. This notice was subsequently amended, but only for the purpose of reducing the length of the hearing to one day and indicating that it would proceed by teleconference.
7 On March 5, 2013, the hearing began. The complainant was not present or represented. The commencement of the hearing was briefly delayed to allow additional time in the event the complainant still wished to connect to the teleconference. When he did not join after the delay, the respondent presented a motion to the Tribunal to dismiss the complaint.
Analysis
8 The Tribunal is satisfied that proper notice for the hearing of March 5, 2013, was sent to the complainant. A review of the record confirms that the Notice of Hearing was sent to the parties on October 9, 2012 and an amended Notice of Hearing was sent on February 14, 2013. There is no record of returned email and the Tribunal finds no other suggestion in the record that service of either of the notices was ineffective.
9 Section 29 of the Public Service Staffing Tribunal Regulations, SOR/2006‑6 (the Regulations), as amended by SOR/2011-116, states that:
If a party, an intervenor or the Canadian Human Rights Commission, if it is a participant, does not appear at the hearing of a complaint or at any continuance of the hearing and the Tribunal is satisfied that notice of the hearing was sent to that party, intervenor or participant, the Tribunal may proceed with the hearing and dispose of the complaint without further notice.
10 The Tribunal interpreted s. 29 of the Regulations in Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020:
[24] … the words “dispose of the complaint without further notice” in section 29 of the PSST Regulations indicate that it refers to the portion of the complaint process where the Tribunal will make a decision on the complaint.
[…]
[33] Since the complainant provided allegations, the wording of section 29 of the PSST Regulations applies and clearly specifies that the Tribunal may proceed with the hearing without further notice and dispose of the complaint.
11 In the amended Notice of Hearing sent February 14, 2013, the parties were reminded that pursuant to s. 29 of the Regulations the Tribunal may proceed with the hearing notwithstanding the absence of any party.
12 On this basis, the Tribunal proceeded in the absence of the complainant.
13 The chronology of events in this matter indicates that in the 22 months since the complaint was filed, the complainant has not attended PHCs as directed nor has he complied with the directions issued by the Tribunal. On many occasions, he has been granted postponements to allow him reasonable opportunities to prepare and to appear before the Tribunal, but little, if any, progress has been made toward the resolution of the complaint.
14 In his email of March 4, 2013, the complainant stated that he would not participate in the hearing on the following day. He further indicated that he hoped soon to discuss the complaint again with CAPE. However, the Tribunal’s record contains the unequivocal statement by CAPE that it is not representing the complainant.
15 With respect to the merits of the complaint, in Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal determined that it is the complainant who bears the burden of proof in hearings before the Tribunal. See paras. 49, 50 and 55. For a complainant to meet this burden, he must present sufficient evidence for the Tribunal to determine, on a balance of probabilities, whether a finding of abuse of authority is warranted.
16 A complainant cannot merely rely on the statements made in a complaint or allegations to establish abuse of authority. These contentions must be supported with evidence from witnesses, facts or documents. See Broughton at para. 50.
17 In the present case, the complainant tendered no evidence to support his case. He has not discharged the burden of proof that is placed upon him. Accordingly, the Tribunal finds that the evidence before it does not demonstrate an abuse of authority in the choice of a non-advertised appointment process.
Decision
18 For these reasons, the complaint is dismissed.
Joanne B. Archibald
Member
Parties of Record
- Tribunal File:
- 2011-0398
- Style of Cause:
- Krishan Kumar and the Secretary of the Treasury Board of Canada
- Hearing:
- March 5, 2013,
by teleconference - Date of Reasons:
- March 8, 2013
APPEARANCES:
- For the complainant:
- Krishan Kumar
- For the respondent:
- Sybille Rohatgi
- For the Public
Service Commission: - Trish Heffernan
(written submission)