FPSLREB Decisions

Reasons for Decision

Introduction

1 Jean-Jacques Raymond, the complainant, alleges that the Chief Statistician of Canada, the respondent, abused its authority in selecting him for lay-off. The complainant worked as a warehouse clerk (CR-04) in the Information Management Division in Ottawa. According to him, the respondent based its decision to lay him off on inadequate material. He believes that this constitutes a significant omission and a serious error, tantamount to an abuse of authority.

2 The respondent submits that it conducted a thorough, fair and transparent process to determine who would be laid off and who would be retained in their positions. According to the respondent, the qualifications of interpersonal skills, reliability and thoroughness that apply to CR-04 work were assessed in an impartial and open-minded fashion.

3 The Public Service Commission (PSC) participated in the hearing by providing written submissions describing its policies and guidelines on selecting employees for retention or lay-off (SERLO).

4 For the reasons set out below, the complaint is substantiated. The Public Service Staffing Tribunal (the Tribunal) finds that the evidence shows that the respondent based its decision on inadequate and inaccurate material and that it failed to take certain information into consideration when it selected the complainant for lay-off. The Tribunal finds that these constitute serious errors, which constitute an abuse of authority.

Background

5 In 2012, the budgets and the workforce throughout the federal government were affected by significant cuts. Staff reductions were announced. A large number (1,688) of Statistics Canada employees were affected when 25 SERLO processes were launched. As a result of these processes, Statistics Canada reduced its staff by 660 positions.

6 In particular, Statistics Canada launched a SERLO process involving the CR‑04 group and level on May 28, 2012. The complainant participated in this process. The process included the 212 employees at the CR-04 group and level working in Ottawa.

7 Two documents were used to assess the participants: (1) the employees’ track records, in which the employees had to show how they met each of the three essential merit criteria established for the SERLO process; and (2) the validation by the employees’ directors. The respondent established an inverse order of merit and a cut‑off point. Candidates whose overall score was below the cut-off point were selected for lay‑off.

8 The complainant prepared and submitted his track record, which was subsequently validated by his director. The evaluation review board read the complainant’s answers and the comments made by his director when validating the answers and the pre-established assessment criteria and gave him a mark for each qualification. The complainant received an overall score below the cut-off point established and was consequently selected for lay-off.

9 On July 11, 2012, the complainant was informed in writing of the results of the SERLO process and of the fact that he had been selected for lay-off. The lay-off notice mentioned that the candidate had 15 days following receipt of the notice to exercise his right to recourse to the PSST. On July 26, 2012, the complainant submitted a complaint to the Tribunal alleging that the respondent had abused its authority in selecting him for lay-off.

Issues

10 The Tribunal must decide the following issues:

1. Did the respondent base its decision to select the complainant for lay-off on inadequate or inaccurate material?
2. Did the respondent fail to take into account in its assessment the fact that the complainant had described his typical, regular and ongoing duties?

Abuse of authority and burden of proof

11 This complaint was made under s. 65(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA), which states that an employee selected for lay-off may make a complaint to the Tribunal that his or her selection constituted an abuse of authority.

12 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.”

13 There is nothing in the PSEA to indicate that a complaint of abuse of authority under s. 65(1) should be interpreted differently from a complaint filed under s. 77. See Tran v. the Commissioner of the Royal Canadian Mounted Police, 2012 PSST 0033. In many decisions regarding complaints filed under s. 77, including Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 56 to 74, the Tribunal examined what constitutes abuse of authority under the PSEA and gave it a broad meaning that includes serious errors even if there is no bad faith or intent. Therefore, a finding of abuse of authority can be made when a delegate acts on inadequate material (particularly without considering relevant matters), when the result is unfair or when unreasonable action is taken.

14 The Federal Court of Appeal (FCA) (majority and dissenting members) similarly ruled in Kane v. Canada (Attorney General), 2011 FCA 19, that the Tribunal cannot be limited by a definition of abuse of authority that requires intent. However, the majority of the FCA members allowed the appeal on other grounds and returned the decision to the Tribunal. The FCA’s decision was appealed to the Supreme Court, which upheld the Tribunal’s decision and set aside the decision of the FCA majority for four reasons. None of those reasons dealt with the FCA’s conclusion that abuse of authority does not require an element of intent. The Supreme Court simply did not deal with the issue of interpretation of abuse of authority. Consequently, the Tribunal finds that it is bound by the FCA’s conclusion that abuse of authority does not require an element of intent.

15 In Canada (Attorney General) v. Lahlali, 2012 FC 601, the Federal Court also confirmed, in paras. 21 and 38, that the definition of abuse of authority in s. 2(4) of the PSEA includes other forms of inappropriate conduct in addition to bad faith and personal favouritism. The Court noted that “the Tribunal’s case law does not state that an error or omission can amount to abuse of authority only if there has been serious carelessness or recklessness to the point where bad faith can be presumed” [emphasis added]. In that case, the Court confirmed that it is unreasonable for an assessment board not to take into account relevant material and that this constitutes an abuse of authority.

16 In order to determine whether there was abuse of authority in this case, the Tribunal will examine the respondent’s decision to select the complainant for lay-off in order to determine whether a serious error was committed or whether this was an unreasonable decision. The complainant must prove, on a balance of probabilities, that the respondent abused its authority (see Tran, at para. 14).

17 Sections 64 and 65 of the PSEA are relevant to the complaint in this case. Section 64(2) of the PSEA applies. The respondent determined that some, but not all, of Statistics Canada employees would be laid off. Therefore, the respondent had to select the employees that would be laid off in accordance with the Public Service Employment Regulations, SOR/2005-334 (PSER).

18 Section 21(1) of the PSER states that, when employees in a part of an organization where lay-offs will occur are employed in similar positions or perform similar duties in the same occupational group and level, the employees must be assessed and those who are to be retained and those who are to be laid off must be identified in accordance with merit.

Issue I:  Did the respondent base its decision to select the complainant for lay-off on inadequate or inaccurate material?

The SERLO process

19 The respondent decided to assess the employees included in the SERLO process on the basis of merit in order to identify those who would be retained and those who would be laid off. Gabrielle Beaudoin, Director General of Communications at Statistics Canada, described the strategy used by the respondent to implement the SERLO process. It was decided that the SERLO assessments would be based on employee track records in which the employees would provide recent, concrete, work‑related examples showing that they met specific qualifications. A subsequent validation process would ensure that the employees had accurately described how they met each of the qualifications.

20 Teams of directors were created to determine what qualifications would be assessed in each SERLO process. Each team of directors presented the qualifications chosen for each group of positions and explained why those qualifications were chosen to the Planning Committee of the Human Resources Management Framework for approval. The results were then presented to and approved by the Human Resources Committee.

21 The affected employees, which included 212 in CR-04 positions, had to complete and submit their track records. The qualifications that were assessed for the CR‑04s were interpersonal skills, reliability and thoroughness.

22 At the end of the SERLO process in which the complainant participated, he was told that he had not been selected for retention and that his services would no longer be required after the option period. The respondent also informed the complainant that it would not be able to guarantee him a reasonable job offer in the current public service climate.

23 At the hearing, it was established that, for the CR-04 SERLO process, employees who obtained a score of 26 or more out of 60 were retained and those who obtained a score of 25 or less were laid off. The complainant obtained an overall score of 22.

Track record

24 The complainant completed his track record and submitted it to the respondent. In the example that he gave to show that he met the qualification of reliability at work, he explained that, following the dismissal of a co-worker in his unit in September 2010 and before the arrival of the co-worker’s replacement, Patrick Leonard, he was alone for a week during which he had to do the work of two positions, namely, his CR position and the GS position that was vacant. He tried to show that he was reliable through the fact that he worked very hard to ensure that the services normally offered to clients by his unit continued to be offered. He named the tasks that he performed in addition to his normal duties. His intention was to show that he had demonstrated resourcefulness, that he had adapted quickly to the situation and that, because of his experience and ability to multi-task, he was able to meet the challenge. He also wrote: “This kind of action gives me the opportunity to replace my supervisor during his absences and holidays because he knows that I am reliable and can perform various tasks” [translation]. In short, he said that he worked longer days that week and did the best that he could in the circumstances. He did not subsequently hear of any complaints from clients as a result of the employee shortage. He concluded that he had worked well and that this demonstrated his reliability.

25 In the example that the complainant gave to show that he met the qualification of thoroughness at work, he explained that, on one occasion, he received an urgent request from the Finance Division. His client, a Statistics Canada manager, told him that her section was undergoing an internal audit. She asked him to send her approximately 60 boxes because she was not certain which ones contained the information she needed. The complainant explained the steps that he took to perform this task, given the urgency of the request and the number of boxes that he had to provide. His example was intended to show that he had performed this task successfully and he summarized the positive feedback that he received from the manager client. The complainant indicated in his testimony that a student had started the work but had to ask for the complainant’s services because of the scope and complexity of the task. The complainant also submitted that, in reality, he had done the work needed to obtain and deliver some 100 boxes to the manager client. However, out of modesty, he had considered it preferable to keep his example to about 60 boxes for fear that his example would be considered to be exaggerated.

Director validation

26 Once the complainant had submitted his track record, his director validated it.

27 A training document entitled Director Validation of Employee Track Record, dated May 2012, was used to inform the directors of how the track records should be validated. The directors were given the following instructions:

Validating employee track records

• Confirm the accuracy of the example.

...

• If necessary, comment on examples where employees have “over/under sold” themselves...

28 In another document, entitled Frequently asked questions – SERLO process [translation], the respondent also specified the following with respect to a question commonly asked about the validation:

18. Can the director write comments on an employee’s track record or provide additional information?

The director will be asked to confirm whether the information provided in the employee’s track record is accurate and complete. If, in the director’s opinion, the employee exaggerated or was too modest in describing his or her achievements, the director will write a comment to this effect in the record.

(Italics added, bolding in the original)

[translation]

29 The document entitled Director Validation of Employee Track Record also included the following guide:

Track Record Validation Guide

Do:
...
Consult with the employee’s chief or above, if required...

30 In the document entitled Frequently asked questions – SERLO process [translation], the respondent also included that protective measure (that is, consult the chief or supervisor if necessary). This document stated the following:

15. My director is not really aware of my day-to-day work. How can he validate my example?

The director can contact your chief, your immediate supervisor or clients to obtain the information needed to validate your example. He or she will have final responsibility for validating your track record.

[translation]

31 In this case, the director who was to validate the complainant’s track record did not know him. Therefore, the director asked Vicky Ross, the Chief of the Information Management Division, for information. Ms. Ross, in turn, did not know a great deal about the complainant so she consulted Jacques Scott, the complainant’s supervisor, for information. Based on the comments Mr. Scott provided regarding the complainant, Ms. Ross wrote the following in the document entitled Director Validation regarding the examples of reliability and thoroughness given by the complainant in his track record:

Qualification 2 [reliability]	No one recalls the situation described in the example. He does not replace his supervisor during absences, as stated. Overall reliability is good but not excellent.
Qualification 3 [thoroughness]	Example provided is exaggerated. Rather than 60 boxes, there was (sic) actually 10-15 boxes. Overall thoroughness is good but not excellent.

Philip Giles, the complainant’s director, then signed the director validation.

Assessment by the evaluation review board

32 An evaluation review board then examined the complainant’s examples and the comments in the director validation and based on the pre-established assessment criteria, assigned him a mark for each qualification.

33 As indicated in a document entitled Training Session for Evaluation Review Boards, the first step in the correction was to determine whether the examples given in the track record were overstated, accurate or understated. The second step was to assign a mark to the track records based on a scoring grid. The scoring grid suggested marks between 0 and 20 for each qualification. At the top of the scale, the marks suggested were from 18 to 20 when the example demonstrated most of the criteria and little or no deficiencies were found in the example. At the bottom of the scale, the marks suggested were from 0 to 4 when the example demonstrated little or no criteria and several deficiencies were found in the example.

34 In fact, the document entitled Training Session for Evaluation Review Boards describes a hypothetical situation in which a fictional employee, to show his reliability, describes his day-to-day work during which he must take into account a number of tasks with competing deadlines. The reference document suggests that the candidate be given a different mark depending on whether the director indicated that the example was overstated, accurate or understated. The recommended marks in this hypothetical situation are 8/20 if the director indicated that the example was overstated, 18/20 if the director indicated that it was accurate and 12/20 if the director indicated that it was understated.

35 It was also pointed out at the hearing that the evaluation review boards had only the employee track records and the director validations in hand during the assessments. The evaluation review boards did not know most of the employees participating in the process. The boards relied solely on those documents to do the evaluation reviews.

36 The evaluation review board that examined the complainant’s track record and his director’s validation documented its decisions. As shown in the Final Score Sheet, the board gave the complainant the following marks: 13/20 for “interpersonal skills” (this mark was not disputed), 4/20 for “reliability” and 5/20 for “thoroughness”. The board included the following comments to justify the last two marks:

Reliability	Comments/Commentaires
...	Almost no criteria were demonstrated. [translation] The score reflects the comments provided in the director’s validation as well. Score/Note: 4/20
Thoroughness	Comments/Commentaires
...	The example provided only contains a few details pertinent to thoroughness. The description provided is more that of a process rather than details on what the employee initiated with regards to thoroughness. The score reflects the comments provided in the management validation as well. Score/Note: 5/20

37 The mark of 13/20 given for “interpersonal skills” was not disputed. However, the evaluation review board’s comments included the following note: “director said [translation] “gen. strong” (in absence of this, I’d have given 10 or 11).”

Analysis

38 According to the complainant, the respondent based its decision to select him for lay-off on inadequate material. He submits that this is tantamount to abuse of authority. He submits that the decision in Tibbs supports his argument.  In para. 73 of Tibbs, the Tribunal determined that abuse of authority is more than simply errors and omissions. However, the Tribunal notes that acting on inadequate material may constitute such a serious error or important omission that it amounts to abuse of authority. The Tribunal must therefore determine whether the respondent acted on inadequate or inaccurate material to select the complainant for lay-off.

39 Mr. Scott, Johanne Denis and Josée Bégin explained in greater detail what the complainant’s evaluation entailed. Ms. Ross was not asked to testify.

Mr. Scott’s testimony

40 Mr. Scott and Ms. Ross were the ones who completed the director validation form. From January 2010 to January 2013, Mr. Scott was supervisor of the Preservation, Retention and Disposition Unit of the Document Management Centre at Statistics Canada. In 2010, he supervised four employees, three in the GS group and one in the CR group. He explained that, in 2012, there remained only one permanent GS, Mr. Leonard, and one CR-04, the complainant. Mr. Scott explained that one GS was dismissed in 2010, another left in 2011, and a third left before Mr. Leonard arrived.

41 Ms. Ross is Mr. Scott’s immediate supervisor. She inserted the comments in the director validation document when she consulted her subordinate, Mr. Scott.

42 With respect to validation of the complainant’s track record, Mr. Scott explained that Ms. Ross called him and they looked at the complainant’s track record together. The purpose was to verify the accuracy of the examples given by the complainant and to comment on them.

Example of reliability

43 First of all, in the case of the example given by the complainant to demonstrate his reliability, Mr. Scott told Ms. Ross, after reading the example summarizing the extra work done by the complainant after one of his co-workers in the GS group was dismissed in 2010, that he did not remember that one of his employees in the GS group had been dismissed in 2010 and that he was not on holidays at that time. He also pointed out to Ms. Ross that the complainant does not replace him on an acting basis when he is on holidays. According to him, this is not necessary since the complainant already takes the calls and can, if necessary, consult his chief, Ms. Ross. Ms. Ross agreed with this. That is why she wrote the previously mentioned comments in the director validation.

44 Mr. Scott admitted during cross-examination that he had not made the effort to verify whether the complainant had been performing two functions for a week in September 2010. Mr. Scott admitted that he had not taken the time to refresh his memory on the subject. However, he maintained that the complainant does not replace him on an acting basis when he is on holidays. However, he admitted that his two employees work a little harder during that time in order to respond to the various requests from clients.

45 The complainant also explained why he mentioned in his example that he occasionally replaces his supervisor. He explained that, when his supervisor is on holidays, he does not replace him on an acting basis but, given that he is there and his office is near his supervisor’s office, he is the one who answers enquiries from clients and who does any necessary special searches in the search software, a task that Mr. Scott normally performs.

Example of thoroughness at work

46 Mr. Scott and Ms. Ross also looked at the complainant’s example of thoroughness together. Once again, the purpose was to verify the accuracy of the example given and to comment on it.

47 In the case of this example that summarized the handling of some 60 boxes for a manager client, Mr. Scott told Ms. Ross that the complainant handled only 10 to 15 boxes and not 60.

48 In his testimony, the complainant submitted that he clearly remembers the work that he did for the manager client and that he described in his example. He specifically remembers that he actually brought her well over 60 boxes. There were about 100 of them. The manager client was supposed to testify to this effect at the hearing, but it was not necessary since the respondent conceded that it would not dispute the fact that the manager client had indeed requested and received some 100 boxes from the complainant in order to find the information that she was looking for.

49 Mr. Scott admitted that he had not made the effort to verify whether the complainant had handled some 60 boxes as indicated in his example. When he was informed that the manager client was ready to testify that the complainant had in fact handled some 100 boxes at her request, he said that he had answered to the best of his knowledge and conceded that he had made a mistake.

50 In order to dig deeper into whether Mr. Scott intended to tell Ms. Ross that the complainant’s examples were accurate or inaccurate, the complainant filed in evidence his latest performance evaluations. A few months before the SERLO process began, the complainant received a very positive performance evaluation from Mr. Scott, his supervisor. That evaluation covered the period from April 1, 2011, to March 31, 2012. In it, Mr. Scott made the following comments about the complainant’s performance:

Achievements for 2011-2012, including learning activities
...
Ensures smooth operation of the RPD Unit in the supervisor’s absence.

Summary:
You are reliable and I can count on you for distribution of the SRM requests. You are well-organized and you are not afraid to help anyone. You have good team spirit. You make a great many corrections in the RPDU system. You communicate with clients and you are able to solve a good many of their problems. You have a good relationship with our internal clients and our external partners. You are an asset here and you are well‑respected by everyone.

[translation]

51 Mr. Scott was questioned about the performance evaluation that he had completed for the complainant approximately three months before his meeting with Ms. Ross. He confirmed that he had written that evaluation. He submitted that the complainant is a very good employee with whom he has always had a very good relationship. He repeated that the complainant did good work and that was why, in addition to making the previously mentioned comments to Ms. Ross, he tried to tell Ms. Ross that the complainant was reliable and thorough in his work and that his examples confirmed this. To demonstrate this, he indicated that it was because of his positive comments regarding the complainant’s examples that Ms. Ross wrote a note stating that the complainant’s reliability and thoroughness are good overall, but not excellent.

52 The Tribunal notes that, although Mr. Scott wanted to convey to Ms. Ross that the complainant’s examples reflected his great reliability and thoroughness, he did not make the effort to verify the facts in the examples. Instead, he minimized the importance and the accuracy of the facts in the examples, thereby undermining the complainant’s credibility.

53 In short, the Tribunal finds that, in the case of the example showing reliability, the validation comments are not credible because no one made the effort to verify whether the events described in the example actually occurred. As for the example given for thoroughness, the validation comments are clearly inaccurate because they mistakenly identify the complainant’s example as overstated. Mr. Scott’s vague and inaccurate comments were transcribed by Ms. Ross and subsequently accepted by the director. As will be shown, this had consequences.

Testimony of Ms. Bégin and Ms. Denis

54 Ms. Bégin and Ms. Denis were on the evaluation review boards that corrected the complainant’s track record. They explained that the evaluation review boards were made up of directors who were mandated to work in teams of three to evaluate the track records of employees affected by the SERLO process. All the directors received specific training to this end in May 2012.

55 Ms. Denis has been Director of Demographics at Statistics Canada since 2008. As part of the SERLO process for the CR-04 group and level, her team evaluated the “reliability” qualification for the 212 employees affected. Ms. Denis explained that her team of three directors had one director do an initial assessment of the file, another director do a second assessment and the third director re-assess everything if the first two directors did not agree.

56 In the case of the example given by the complainant to show his reliability, Ms. Denis submitted that the example was not worth more than 4/20 because the complainant described a one-time situation, that is, something that occurred over a very short time period, and he described the work of a GS rather than a CR. She submitted that it was therefore difficult to evaluate his behaviour on a more regular basis and to match it to the reliability criteria, which were as follows:

• Performs duties with minimal supervision and within the required deadlines.
• Is able to manage assigned workloads and asks for help when necessary.
• Is willing to take on extra work when required.
• Makes well-thought-out and ethical decisions.
• Pays attention to details.
• Is punctual and reliable at work.
• Has consistent and dependable work attendance.
• Other acceptable answer.

57 Ms. Denis submitted that even if the validation comments made by the director were unreliable, this did not change her opinion that the example was worth only 4/20. She said that she in fact remembers that, after reading the example, she decided not to reduce the mark from the 4/20 that she had given the complainant because of the director’s negative validation since the mark was already very low.

58  Ms. Denis also explained that her evaluation review group’s work method was to separate the track records into three piles. In the first pile were examples that were considered to be overstated; in the second pile were examples that were considered to be accurate; and in the third pile were examples that were considered to be understated.

59 The Tribunal finds that it is more likely than not that the complainant’s track record was placed in the exaggerated or overstated pile. In fact, Ms. Denis’s evaluation review group wrote the following comment on the final score sheet to document its decision to give the complainant 4/20 for reliability: “The score reflects the comments provided in the director’s validation as well”.

60 Finally, Ms. Denis conceded that, for all the records, when the examples were considered “understated”, the initial mark was increased by a few points so that a mark of four, for example, would go from the 0-4 level to the 5-9 level on the scoring grid. She also conceded that when examples were considered “overstated,” a few points were subtracted from the initial mark. Therefore, an initial mark of five, for example, would go down a few points and would end up at a lower level.

61 In 2012, Ms. Bégin was Director of the Tourism and Centre for Education Statistics Division. Her team corrected the “thoroughness” qualification for the 212 employees affected by the SERLO process for the CR-04 group and level. Ms. Bégin explained that her team of three directors had one director give a mark and a second director write the comments if he or she agreed with the mark suggested by the first director. The third director was consulted if the first two directors disagreed on the mark.

62 As for the example given by the complainant to demonstrate his thoroughness at work, Ms. Bégin submitted that the example was not worth more than 5/20 because the complainant simply described a process in place that did not demonstrate his thoroughness. According to her, it was difficult to find in his example the criteria for thoroughness that they were looking for. These criteria were as follows:

• Ensures work is done correctly and fully.
• Achieves high-quality results in his/her work.
• Ensures proper documentation of all relevant information related to his/her tasks.
• Does the work with precision and pays attention to detail.
• Works effectively, efficiently and economically.
• Completes all elements of an assigned task on time.
• Other acceptable answer.

63 Ms. Bégin submitted that even if the complainant’s director’s validation comments were inaccurate, that did not change her opinion that the example was not worth more than 5/20. She explained that the director validation did not have much impact on her evaluation review group.

64 However, it was brought to her attention that her evaluation review group had specifically written on the final score sheet that the 5/20 score given to the complainant also reflected the negative comments provided in the management validation. She then conceded that it was another member of the evaluation review board that had written that.

65 When it was brought to Ms. Bégin’s attention that the instructions given to the evaluation review boards included the obligation to take into account the director’s opinion as to whether the examples were overstated, accurate or understated, Ms. Bégin conceded that that was true. She therefore agreed that a few more points would generally have been given to employees whose examples were not considered overstated.

Significant omissions that constitute serious errors

66 Managers must comply with the PSEA values of equity and transparency in the SERLO process. It was important in this case for Mr. Giles, the complainant’s director, to obtain accurate information about the complainant from his supervisors since he was not personally aware of the complainant’s day-to-day work.

67 Mr. Giles consulted the complainant’s chief and she, in turn, consulted the complainant’s supervisor. However, the information that Mr. Giles received from Mr. Scott and Ms. Ross proved to be unreliable and untrue.

68 First, the complainant showed that, in the case of his example for reliability, no one made the effort to verify whether the events described in his example actually occurred. In short, the validation comments for that example were not reliable.

69 Similarly, in the case of his example for thoroughness at work, the complainant showed that the validation comments were in fact inaccurate—they erroneously identified his example as overstated. In short, the validation comments were untrue and erroneous for that example.

70 The evidence shows that these unreliable and erroneous validation comments were used to assess the complainant. These negative comments influenced the marks of 4/20 and 5/20 that were given for the complainant’s examples for reliability and thoroughness. The evaluation review board based its decision in part on these unreliable and untrue comments, leading to an overall score of 22 out of 60.

71 The Tribunal therefore finds that the complainant has demonstrated that the respondent based its decision on inadequate and inaccurate material to select him for lay-off and that this was a serious error that constituted an abuse of authority.

Issue II:  Did the respondent fail to take into account in its assessment the fact that the complainant had described his typical, regular and ongoing duties?

72 The respondent indicated that the two examples given by the complainant were not representative of his regular CR-04 work and that he therefore did not comply with the instructions given. His score in the SERLO process was reduced accordingly.

73 In the instructions sent to employees who had to complete a track record, the respondent told them to provide examples that reflected their “performance that was representative of their day-to-day work” [translation]. Similarly, during the information session given to employees affected by the SERLO process, the respondent instructed the employees included in the process to give examples that reflected their “regular and ongoing work” [translation]. The form that was given to employees who had to complete a track record also required them to give an example “representative of your regular work” [translation].

74 The complainant submits that the examples that he gave include references to GS-04 tasks (handling of boxes) because he regularly performs such tasks in addition to his CR-04 duties. His example of reliability describes the additional work of handling boxes that he did during a week following the departure of one of his co-workers. His example for thoroughness at work describes the work of handling boxes that he did for a manager client. He submits that he regularly and repetitively does this kind of work (handling boxes) and that he should not have been penalized in the process for referring to this kind of work.

75 At the hearing, the complainant explained that he occupies a position as a warehouse clerk (CR-04) in the Information Management Division, that he mainly does office work, but that he regularly has to provide help to his co-worker, Mr. Leonard, who occupies a GS-04 position in the same division. The complainant specified that, in general, as a CR-04, his work consisted of taking calls, answering emails, meeting with clients, entering data, preparing labels for storing documents and looking after the forms to be completed for the storage. He is the first line of communication for the Preservation, Retention and Disposition Unit of the Document Management Centre. Mr. Leonard, his co‑worker, is the one who mainly looks after handling boxes. He gets the boxes from the warehouse, delivers them to the client, takes them back and places them in storage. He also periodically does an inventory of the boxes in the warehouse, which numbers approximately 26,000.

76 Both the complainant and Mr. Leonard indicated in their testimony that, for the past two years, their section has consisted of just three people—their supervisor, Mr. Scott, and the two of them. The complainant and Mr. Leonard explained that quite frequently Mr. Leonard asks the complainant for help when he has a great many boxes to move in a short period of time. The complainant has a licence to drive a forklift and he uses the forklift regularly to help his colleague transport boxes. Mr. Scott, the complainant’s supervisor, confirmed this and the fact that the complainant does GS tasks on a regular basis. He said that this happens two or three times a week. This evidence was not disputed at the hearing.

77 The Tribunal finds that the respondent’s decision not to take into account the complainant’s experience handling boxes although it is regular and ongoing work for him is unreasonable. The complainant’s evidence and Mr. Scott’s testimony confirm, for the examples of both thoroughness and reliability, that the complainant has been handling boxes on a regular basis two or three times a week for years.

78 Given that the complainant described his regular and ongoing work (according to the instructions), it was inappropriate to penalize him for describing tasks that are not specifically those of a CR-04. Since the instructions given to employees were clear, the employees could not, when complying, foresee being penalized if they described work that differed from the normal duties of a CR-04.

79 Therefore, the Tribunal finds that the respondent abused its authority by failing to take into account the fact that the complainant described, in his track record, duties that he performed on a typical, regular and ongoing basis.

Other issue

80 After learning that he had been laid off, the complainant met with Mr. Scott, his supervisor, in his office and asked him if he had been consulted about validating the complainant’s examples. According to the evidence, Mr. Scott answered that he had not been consulted and that he was not aware of the situation. The complainant said that he asked again at least two more times during their discussion and got the same negative answer from Mr. Scott.

81 Mr. Leonard, whose office is near Mr. Scott’s office, confirmed that he heard the complainant ask Mr. Scott more than once whether he had had the opportunity to validate the complainant’s examples. He confirmed that Mr. Scott replied each time that he had not been consulted on the subject.

82 In the months prior to the announcement of the lay-off results, the respondent assured the employees participating in the process that their directors would be consulted on the validation of their examples. When a director did not know an employee, it was understood that the director would contact the employee’s chief or immediate supervisor. However, in the complainant’s case, although his director did not know him, it seemed to him that no one made the effort to consult Mr. Scott, his immediate supervisor, since Mr. Scott stated that he had not been consulted. According to the complainant, his lay-off seemed to have been completely unjust and unfounded.

83 Mr. Scott confirmed that, after the results were announced, the complainant asked him if he had been consulted regarding the complainant’s track record. Since Mr. Scott did not know whether he could talk about the meeting between him and Ms. Ross, he said that he had not been consulted. He submitted at the hearing that he had not received any training on the SERLO process and, out of caution, he considered it preferable to tell the complainant that he had not been contacted about the complainant’s track record. Mr. Scott said that, after his discussion with the complainant, he went to see Ms. Ross to ask her if he could tell the complainant that he had in fact been consulted about the complainant’s track record, and she told him not to say anything to the complainant.

84 The Tribunal notes that the Guide on the Selection of Employees for Retention or Lay-Off in effect at the time of the SERLO process specified that throughout the workforce adjustment process, it was important that all employees be informed of any important decisions concerning them. This process and everything it entails is generally very stressful for both employees and managers. These processes should be conducted with respect and sensitivity, and should reflect the guiding values described earlier.

85 The Tribunal finds that the complainant was misled about the SERLO process by his supervisor. His supervisor chose to keep the consultation concerning the complainant’s track record a secret out of loyalty to the employer. However, this was to the detriment of transparency, which is essential in such a process. This was a regrettable error in the process and showed a lack of transparency on the part of the respondent that went against the PSEA values of equity and transparency.

Conclusion

86 The Tribunal finds that, in this case, the respondent based its decision on inadequate and inaccurate material in selecting the complainant for lay-off and failed to take into consideration some of his regular duties in his assessment. These are serious errors which constitute abuse of authority.

Decision

87 For all the above-mentioned reasons, the complaint is substantiated.

Order

88 Section 65(4) of the PSEA grants the Tribunal the authority to set aside the decision to lay off the complainant and to order corrective action. This section reads as follows:

Where the Tribunal finds a complaint under subsection (1) to be substantiated, it may set aside the decision of the deputy head to lay off the complainant and order the deputy head to take any corrective action that it considers appropriate, other than the lay-off of any employee.

89 The Tribunal sets aside the decision to lay off the complainant.

Nathalie Daigle
Member

Parties of Record

Tribunal File:

2012-0997

Style of Cause:

Jean-Jacques Raymond and the Chief Statistician of Canada

Hearing:

April 24-26, 2013
Ottawa, ON

Date of Reasons:

July 9, 2013

APPEARANCES:

For the complainant:

James Cameron and
Wassim Garzouzi

For the respondent:

Martin Desmeules

For the Public
Service Commission:

Claude Zaor
(written submissions)