FPSLREB Decisions

Reasons for Decision

Introduction

1 Wayne Renaud, the complainant, filed a complaint of abuse of authority concerning the appointment of Darryl Williams to the position of EG-07 MCE Hydrographic Services Office (HSO) Superintendant (the EG-07 position) with the Department of National Defence (DND) in Halifax, Nova Scotia.

2 The complainant alleges that the Deputy Minister of National Defence, the respondent, abused its authority: (1) in considering Mr. Williams for the EG-07 position; (2) in determining that Mr. Williams was qualified for the EG-07 position; (3) in exercising its discretion to choose Mr. Williams as the right fit; (4) in assessing the candidates under different conditions; (5) in not ensuring that those responsible for the assessment had the necessary competencies; and, (6) in showing bias against him.

3 The respondent denies that an abuse of authority occurred. The respondent submits that: (1) the appointee was a proper candidate for the EG-07 position; (2) he was fully assessed and found to meet the essential qualifications for the position; (3) its discretion was exercised properly when it identified him as the right fit; (4) it assessed all candidates under the same conditions; (5) it ensured that those responsible for the assessment had the necessary competencies; and, (6) it showed no bias against the complainant.

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

5 For the reasons that follow, the complaint is substantiated. It has been established that the respondent abused its authority in this appointment process by considering, and then appointing, Mr. Williams to the EG-07 position.

Background

6 The complainant and the appointee occupy positions within the Mapping and Charting Establishment (MCE), Hydrographic Office at DND in Halifax, Nova Scotia. The respondent initiated an internal advertised process in March 2011 to fill two positions, namely Superintendant (EG-07) and Response Team Leader (EG-06) with the MCE Hydrographic Office.

7 The process resulted in a pool of five qualified candidates: two candidates qualified for positions in Esquimalt, British Columbia, and three candidates qualified for positions in Halifax.

8 The complainant was the incumbent of the EG-06 position in Halifax. He applied for the EG-07 position in Halifax, was found qualified, and was placed in the pool of qualified candidates. However, the respondent determined that Mr. Williams was the right fit for the EG-07 position in Halifax.

9 The Notification of Appointment or Proposal of Appointment for the appointment of Mr. Williams was posted on March 21, 2012.

10 On April 3, 2012, the complainant filed his complaint of abuse of authority with the Public Service Staffing Tribunal (the Tribunal) under s. 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (PSEA).

Issue

11 The Tribunal must decide the following issue:

Did the respondent abuse its authority by considering Mr. Williams and by ultimately appointing him to the EG-07 position?

Analysis

12 Section 77(1) 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 because the PSC or the deputy head abused its authority in the appointment process. Abuse of authority is not defined in the PSEA. However, 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 In its decisions, the Tribunal has found that a broad interpretation of what constitutes abuse of authority is required under the PSEA. Abuse of authority includes serious errors even if there is no bad faith or intent. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 56 to 74. This broad interpretation has been confirmed in judicial review. See Canada (Attorney General) v. Lahlali, 2012 FC 601, and Kane v. Canada (Attorney General), 2011 FCA 19 at paras. 56‑67, reversed on other grounds, Canada (Attorney General) v. Kane, 2012 SCC 64.

14 The complainant bears the burden of proof in a complaint of abuse of authority. See Tibbs at paras. 48-55.

Whether Mr. Williams could be considered for the EG-07 position

15 The complainant submits that it was improper for the respondent to consider Mr. Williams for the EG-07 position because he did not apply for it.

16 The Job Opportunity Advertisement (JOA) issued on March 11, 2011 was to staff EG-06 and EG-07 positions in Esquimalt and Halifax. The intent was also to create a pool of qualified candidates to staff similar positions. The JOA contained the following note: “Please identify clearly for which position(s) you are submitting an application.”

17 Mr. Williams submitted his application on March 23, 2011 and he specified, at the beginning of his covering letter, that he was applying for the Response Team Leader position (the EG-06 position). He also indicated in his resumé that his objective was to pursue “a permanent, full-time career as an Operational Response Team Leader in HSO Halifax.”

18 Major Travis Maxwell, who is the Commanding Officer of the Geospatial Information and Services Squadron within the MCE, was the board chair for this advertised appointment process. He screened the candidates for this process, together with board member Glenn Cornect, Officer Commander of the Digital Production Squadron within the MCE. Both Mr. Maxwell and Mr. Cornect testified that they screened all participants in the process as though they had applied for both the EG‑06 and EG-07 positions.

19 Mr. Williams was screened into the process and then informed that he would be invited for an interview. At the beginning of his interview, on May 11, 2011, Mr. Williams was asked for which position he was applying. He confirmed that it was for the EG‑06 position. He was therefore only assessed at that time for the EG-06 position. He did well.

20 Mr. Williams explained that, on October 31, 2011, he was contacted by Mr. Cornect who asked him if he wanted to “compete” for the EG-07 position.

21 Mr. Williams thought about it and confirmed that he was interested in the EG‑07 position. He testified that he also received another telephone call in November from Mr. Cornect who asked him to provide additional information concerning his experience in marine navigation. He provided a copy of his Military Personnel Record Resume. Mr. Williams was not certain, but seemed to recall speaking to Mr. Maxwell by phone around the same time as well.

22 The assessment board decided to include him as a candidate for the EG‑07 position. Mr. Maxwell explained that one of the reasons that the assessment board decided to consider Mr. Williams for the EG-07 position is because he became concerned during the interviews that the complainant had perhaps influenced Mr. Williams into applying for the EG-06 position only.

23 A post-interview assessment of Mr. Williams was conducted a few weeks later. A conference call was held wherein the assessment board asked him additional questions related to the EG-07 position. The Statement of Merit Criteria (SMC) for the EG-06 and the EG-07 positions listed some essential qualifications that were common to both positions. There were other qualifications established for the EG-06 position or the EG-07 position only. Specifically, the EG-06 position required “[a] minimum of 3 years experience in marine navigation using both digital and paper charts.” The EG‑07 position required “[a] minimum of 5 years experience in marine navigation using both digital and paper charts.” The EG-07 position also required “[k]nowledge of Federal Government Finance rules (Sect. 32 & 34 of Financial Administration Act).”

24 Mr. Williams was found qualified for the EG-07 position and he was ultimately chosen as the right fit for this position.

25 Based on the evidence before it, the Tribunal does not find that the complainant improperly influenced Mr. Williams into applying for the EG-06 position only. The complainant informed Mr. Williams of the appointment process and helped him submit his application. The complainant testified as to why and how he helped Mr. Williams submit his application. He explained that when the JOA came out for the EG-06 and EG-07 positions, he contacted Mr. Williams to inform him of the EG‑06 position. They have known each other for 30 years and they are friends (Mr. Williams also worked for the complainant in the past). The complainant told Mr. Williams that he was applying for the EG-07 position and that he would be perfect for the EG-06 position.

26 The complainant and Mr. Williams then discussed the essential qualifications for these positions. According to their understanding of the experience requirement for the EG-07 position, it required five years of experience in marine navigation using paper charts as well as five years of experience using digital charts. They both believed that Mr. Williams did not have five years of experience in marine navigation using digital charts but that he had at least three years of experience using digital charts. According to the complainant, this is the reason why Mr. Williams applied for the EG-06 position.

27 Mr. Williams confirmed this at the hearing. He explained that after reading the essential qualification for the EG-07 position, which required “[a] minimum of 5 years experience in marine navigation using both digital and paper charts,” he concluded that he needed five years of experience in both marine navigation using digital charts and marine navigation using paper charts. He did not believe that he had five years of experience in marine navigation using digital charts so he assumed he could not apply for the EG-07 position.

28 The complainant also explained that Mr. Williams asked the complainant to revise his application before sending it, which the complainant did. The complainant then gave Mr. Williams a tour of his office.

29 The Tribunal finds that, contrary to what the respondent claims, there was nothing wrong with the complainant informing Mr. Williams of the EG-06 opportunity and helping him submit an application for this position. Mr. Williams had access to the JOA, which described both the EG-06 and EG-07 positions. He ultimately decided to apply for the EG-06 position only.

30 The crux of the matter is whether the respondent could consider Mr. Williams for the EG-07 position since he had not applied for it. Essentially, could the respondent re‑open the process only for Mr. Williams?

31 The JOA set a closing date to apply in the appointment process of March 24, 2011. As of this date, Mr. Williams had only applied for the EG-06 position; he had not applied for the EG-07 position. The respondent, in fact, secretly reopened the process seven months after it had closed to allow him to become a candidate for the EG-07 position. There is no evidence that this was done for any other candidates in the process.

32 As stated in Tibbs, abuse of authority requires more than simply errors and omissions. A serious error, omission or improper conduct is required to substantiate a complaint of abuse of authority under the PSEA.

33 By reopening the process only for Mr. Williams seven months after it had closed, the respondent committed a serious error in this appointment process that constitutes an abuse of authority. The JOA required that the candidates clearly identify for which position(s) they were submitting an application. Mr. Williams only identified the EG‑06 position in his application. He confirmed at the commencement of his interview that he was applying for the EG-06 position. He was then assessed for the EG‑06 position. The respondent could not, months later, on an unsolicited basis, contact only Mr. Williams and inquire as to his interest in being considered for another position, and then include him as a candidate for the EG-07 position. Doing so amounted to a breach of the PSEA appointment values of fairness and transparency.

34 As expressed in the preamble to the PSEA, the exercise of discretion in staffing within the public service must be characterized by fair and transparent employment practices (see Tibbs at para. 64). The appointment values of fairness and transparency are also set out in the PSC Appointment Policy - General.

35 In this case, it was unfair to reopen the process only for one candidate. Furthermore, the respondent could not reopen the process secretly without telling anyone. This contravened the value of transparency.

36 The Tribunal therefore concludes that by reopening the process only for Mr. Williams after it had closed, the respondent committed a serious error that constitutes an abuse of authority.

37 As a final note, having told potential applicants that they had to indicate which position or positions they were applying for, it was also improper for the respondent to screen all applicants in the process as though they had applied for both positions. The qualifications for these two positions were not identical, as mentioned above.

Whether Mr. Williams was qualified for the EG-07 position

38 The Tribunal also finds that there was an error in the wording of one of the essential qualifications for the EG-07 position. The wording of this qualification was misleading. This essential experience qualification in the English version of the JOA required “[a] minimum of 5 years experience in marine navigation using both digital and paper charts” (emphasis added). The French version of the JOA was not put into evidence.

39 Mr. Maxwell explained that when he drafted this qualification, he wanted a total of five years of experience in marine navigation based on a combination of the use of digital charts and paper charts. Mr. Maxwell stated that, during the screening process, the assessment board determined whether candidates had, at least, some experience in marine navigation using digital charts. This could be combined with experience using paper charts as long as it amounted to a minimum of five years in total. The assessment board found that since Mr. Williams had some experience in marine navigation using digital charts (although not five years), this could be combined with his experience using paper charts, which amounted to more than five years.

40 However, on its face, using the plain and ordinary meaning of the word “both”, potential candidates may well have been led to think that the qualification required five years of experience in marine navigation using digital charts, as well as five years of experience using paper charts.

41 The complainant and Mr. Williams both testified that this is how they interpreted this qualification. In fact, Mr. Williams did not apply for the EG-07 position because he believed he did not have five years of experience in marine navigation using digital charts.

42 If the qualification had been worded differently to better reflect what the respondent had in mind for the EG-07 position (a total of five years of experience in marine navigation based on a combination of the use of digital charts and paper charts), then Mr. Williams or other potential candidates would perhaps have applied for the position. As the Tribunal has explained in Henry v. Deputy Head of Service Canada, 2008 PSST 0010, at para. 49, what is required of candidates should be set out in a clear, precise and transparent way on the JOA and the SMC.

43 In this case, however, based on the plain and ordinary meaning of the word “both”, the Tribunal finds that the qualification required five years of marine navigation using digital charts as well as five years of marine navigation using paper charts. Thus, in the Tribunal’s view, it was wrong on the part of the respondent to interpret this qualification in a way that was inconsistent with the plain and ordinary meaning of the word “both”. By doing so, the respondent determined that Mr. Williams qualified for the EG-07 position while he did not have five years of experience using digital charts. This contravened section 30(2) of the PSEA, which requires that appointments be made on the basis of merit.

44 The Tribunal therefore finds that the respondent committed a serious error in determining that Mr. Williams was qualified for the EG-07 position and that this constitutes an abuse of authority.

Remaining Issues

45 The complainant alleged that the respondent abused its authority in a number of other ways, including: in determining that the appointee was the right fit, and by not assessing all candidates under the same conditions. However, having determined that the respondent abused its authority in considering Mr. Williams for the EG-07 position, there is no need to address these other issues. The Tribunal notes that the corrective action sought by the complainant is that the appointment of Mr. Williams be revoked.

Decision

46 For all of these reasons, the complaint is substantiated.

Order

47 The Tribunal orders the deputy head to revoke the appointment of Darryl Williams within 60 days of this decision.

Nathalie Daigle
Member

Parties of Record

Tribunal File:

2012-0814

Style of Cause:

Wayne Renaud and the Deputy Minister of National Defence

Hearing:

June 6, 7 and 26, 2013
Halifax, NS

Date of Reasons:

August 19, 2013

APPEARANCES:

For the complainant:

Louis Bisson

For the respondent:

Allison Sephton

For the Public
Service Commission:

Karyne Mongrain
(written submissions)