FPSLREB Decisions

Reasons for Decision

Introduction

1 Chris Hughes, the complainant, was an unsuccessful candidate in an advertised appointment process to fill PM-03 Team Leader positions in various western and northern regional offices in Human Resources and Skills Development Canada (HRSDC). He alleges that the respondent, the Deputy Minister of HRSDC, abused its authority in several ways with respect to this process. He asserts that the respondent discarded the results of one written test for improper reasons, and failed to enforce the word limit imposed on candidates when it marked another written test. The complainant also alleges that the second written test was a flawed assessment tool. He further claims that the respondent failed to disable the word count function on the computer used by one candidate to complete the written test, giving that candidate an unfair advantage. Finally, the complainant alleges that two managers involved in the appointment process failed to ensure that they were not in a conflict of interest.

2 The respondent submits that the complainant has not met the burden of proof with respect to any of his allegations and therefore has not established that an abuse of authority occurred in this appointment process.

3 The Public Service Commission (PSC) made submissions regarding its role with respect to the written test that was discarded by the respondent. It also provided its interpretation of various PSC policies, but did not take a position on the merits of these complaints.

4 For the reasons that follow, the Tribunal finds that the complainant has not demonstrated that the respondent abused its authority with respect to this appointment process.

Background

5 The Job Opportunity Advertisement for this appointment process was posted with a closing date of December 4, 2007. Candidates’ applications were screened based on the education and experience qualifications, following which the Work Personality Index test (WPI) was administered. On January 31, 2008, the respondent issued candidates’ WPI results. In early February 2008, the respondent decided not to use the WPI as an assessment tool and notified candidates who had failed it that they were back in the appointment process and would be invited to a written test and an interview.

6 Following the test and interview, the respondent determined that the complainant did not meet some of the essential qualifications for these positions and he was eliminated from the appointment process.

7 A series of Notifications of Appointment or Proposal of Appointment were issued and after receiving them the complainant filed 26 complaints of abuse of authority pursuant to s. 77(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA). The 26 complaints were consolidated in accordance with s. 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 as amended by SOR/2011‑116.

8 An oral hearing was held on December 5 and 6, 2012, following which written arguments were submitted in December 2012 through to February 2013. In his written arguments, the complainant withdrew three of his allegations, namely, that senior managers had conspired to prevent him from gaining employment in the respondent’s organization, that one of the managers involved in this appointment process was biased toward him and, finally, an allegation concerning the quality of one candidate’s written test. The Tribunal will therefore not address those allegations in these reasons.

Preliminary Matter

9 The parties identified their witnesses during the pre-hearing conference that was held on April 24, 2012. Five days before the hearing the respondent notified the Tribunal and the parties that one of its witnesses was not available.

10 At the beginning of the hearing the complainant inquired about the absence of the intended witness, to which the respondent replied that she was not available due to medical reasons. The complainant asked whether a medical certificate should be required to excuse this person from testifying.

11 The Tribunal notes that the respondent was granted an earlier postponement of the hearing because the same person was not available for hearing dates in June 2012 due to medical reasons. The Tribunal is satisfied that this person could not appear as a witness because of health reasons.

Issues

12 To determine whether the respondent abused its authority, the Tribunal must examine the following issues:

1. Did the respondent discard the WPI for improper reasons?
2. Was the written test a flawed assessment tool?
3. Did the respondent abuse its authority by changing the instructions for the written test?
4. In administering the written test, did the respondent provide an unfair advantage to one candidate?
5. Did two of the managers who were involved in this process fail to ensure that they were not in a conflict of interest?

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.

14 The complainant bears the burden of proving allegations of abuse of authority in complaints made under s. 77 of the PSEA. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 49, 50 and 55. In order for the complainant to meet this burden, it is necessary for him to present sufficient evidence for the Tribunal to determine, on a balance of probabilities, that a finding of abuse of authority is warranted.

Issue I:  Did the respondent discard the WPI for improper reasons?

15 The WPI is a test developed by a private company. It is designed to assess behavioural traits and therefore the PSC must approve it for use in appointment processes. The respondent had not obtained the requisite PSC approval prior to administering the WPI and decided to discard the results rather than seek approval for its use after the fact.

16 The complainant submits that the respondent’s explanation of the circumstances and the reasons for discarding the WPI is not credible.

17 Lauren Delgaty was the Director of Insurance Processing at the time of this appointment process and was the respondent’s delegate as the lead director for the process. Ms. Delgaty testified that she was told about the requirement to obtain PSC approval during a telephone conversation with her Human Resources (HR) Consultant, after the WPI results were issued. She stated that she informed her supervisor and the PSC was contacted to find out whether approval of the WPI could be obtained and if it could be expedited. She decided to discard the WPI rather than formally request and wait for approval because she wanted to conclude the process in a timely manner and make appointments to the vacant positions. Ms. Delgaty stated that some assessors had set aside time from their day-to-day responsibilities and she had hired additional assessors through contracts to conduct the interviews.

18 The complainant submits that since Ms. Delgaty has significant experience in the public service, has a vast knowledge of staffing and had previously assisted the PSC in standardized test design, she knew that the WPI required PSC approval and she proceeded to use it without approval. He also asserts that HR experts at HRSDC knew about the requirement for approval, having worked on the development of the WPI.

19 There was no evidence tendered at the hearing regarding the involvement of HRSDC HR experts in the development of the WPI, who those HR experts are, or whether they had a role in this appointment process.

20 The Tribunal finds that the evidence does not establish that Ms. Delgaty knew or was likely to have known that the WPI required PSC approval. Ms. Delgaty provided an overview of her more than 32 years of experience in program delivery and oversight at Customs and Excise, the Canada Customs and Revenue Agency, the Canada Revenue Agency and the Canada Border Services Agency, as well as at HRSDC. According to her testimony, Ms. Delgaty has had significant training in staffing and has been responsible for many recruitment and staffing initiatives. She confirmed that she had used PSC tests in the past and that she worked with the PSC on a standardized simulation test for PM-05 positions. Her role was to describe various aspects of the PM‑05 work to assist with developing the criteria the test needed to address.

21 The Tribunal finds that nothing in Ms. Delgaty’s background demonstrates that she had knowledge of the PSC’s policy requiring approval of the WPI. Her experience with appointment processes demonstrates knowledge of staffing from a managerial perspective and her work with the PSC on test criteria was related to a PSC test, not one developed by a private company.

22 The complainant submits that Ms. Delgaty’s inability to recall why she was speaking with her HR Consultant, the date of the conversation, or what led to their discussion of PSC approval of the WPI demonstrates that this testimony is not credible. He argues that the HR Consultant was a key witness regarding the WPI and that the Tribunal should draw a negative inference from the fact that the respondent did not call the HR Consultant as a witness.

23 In support of his argument, the complainant presented a series of four emails that begins with a request from a candidate for an informal discussion of their WPI results. In the third email, Ms. Delgaty questions the need for informal discussion since the WPI would not be used. The last email, from the HR Consultant to Ms. Delgaty, reads: “Do you mean that you are not using the tool at all?” The complainant asserts that the HR Consultant’s reaction demonstrates that Ms. Delgaty acted improperly, and submits that the fact that the respondent did not call the HR Consultant as a witness, by inference, supports his assertion.

24 The Tribunal is not persuaded by the complainant’s assertion. In the Tribunal’s view, this evidence does not demonstrate any wrongdoing. Accordingly, the complainant has not established a fact that requires an explanation from the respondent. Consequently, the Tribunal finds that it is reasonable that the respondent determined that it was not necessary to call the HR Consultant to testify concerning this issue. Therefore, the Tribunal will not draw an adverse inference from the fact that the respondent did not call the HR Consultant to testify. Moreover, the Tribunal notes that the respondent never indicated that it would call this witness. It was the complainant who said, during the pre-hearing conference, that he would call the HR Consultant as a witness.

25 There is no evidence to contradict Ms. Delgaty’s testimony about the timing and the relevant substance of her telephone conversation with the HR Consultant. Ms. Delgaty stated that she spoke frequently with her HR Consultant. The conversation in question took place approximately five years ago, in late January or early February 2008. It is possible that Ms. Delgaty would forget many details about this conversation but would remember that she learned there was a potentially significant problem with an appointment process for which she was responsible, and would recall when the conversation took place in relation to important steps in that process.

26  The complainant also submits that Ms. Delgaty’s explanation of why she discarded the WPI is not credible. He asserts that Ms. Delgaty decided to discard the WPI because too many candidates failed. He submits that if the WPI results had been retained and combined with the results for the subsequent written test, there would have been an insufficient number of qualified candidates for the vacancies to be filled. The complainant also asserts that some of the candidates who failed the WPI were “being groomed” as part of Ms. Delgaty’s succession plan.

27 The complainant points out that 97 candidates passed the WPI. He submits that, since 94 candidates then failed the written test, there would have been only three candidates with the potential to qualify for appointment in this process. According to the complainant, this was not acceptable to Ms. Delgaty and was one of the reasons she discarded the WPI.

28 The Tribunal finds that the evidence does not support the complainant’s position. The evidence demonstrates that Ms. Delgaty knew how many candidates had failed the WPI before she decided to discard it. However, no one, including Ms. Delgaty, could have known the results of the written test at that time. The decision to discard the WPI was made in early February 2008, while the written test was administered to candidates over several weeks from February to April 2008. Furthermore, the complainant’s position is based strictly on numbers, which do not show whether the candidates who failed the written test had passed or failed the WPI. Without more, the Tribunal cannot reasonably draw a conclusion based on these numbers.

29 The complainant’s submission indicates that the Tribunal should find that succession planning is improper; however, he did not explain what a succession plan is or what would make one inappropriate. The Tribunal finds that there is no evidence to demonstrate that Ms. Delgaty had a succession plan or any plan that involved any candidate in this appointment process. Ms. Delgaty stated in her testimony that she was involved in business and human resources planning; however, no evidence was tendered to establish whether these activities included succession planning.

30 The evidence shows that Ms. Delgaty saw and approved the lists of candidates who had passed and failed the WPI. She testified that, as the respondent’s delegate, she approved the results at each phase of the assessments. She agreed that she likely recognized some candidates on the various lists she approved; however that alone is not sufficient to establish that she had plans for those candidates or took any inappropriate measures to ensure their success in the appointment process.

31 The complainant further submits that it is more probable that outside contractors were hired for the interviews after the decision to discard the WPI, not before as Ms. Delgaty testified. Having been a candidate in other appointment processes, the complainant’s view is that 184 interviews would justify the requirement for contractors, whereas 97 interviews would not. The complainant’s opinion on this point is mere speculation. It is insufficient to refute Ms. Delgaty’s testimony.

32 Ms. Delgaty’s explanation that she did not want to delay the appointment process by waiting for approval of the WPI is consistent with the testimony of Dr. David Forster, Senior Psychologist with the Personnel Psychology Centre (PPC) at the PSC. Dr. Forster testified that the PPC had been responsible for test approval prior to 2006 and resumed that role in the fall of 2008, so he was familiar with the process. He confirmed that the WPI would need PSC approval for use in this appointment process. He also confirmed that it takes weeks or months to conduct a comprehensive study of several elements of an outside test and assess its applicability in an appointment process, to determine whether it will be approved.

33 Based on the evidence before it, the Tribunal finds that the complainant has not demonstrated that the respondent set aside the WPI for improper reasons.

Issue II:  Was the written test a flawed assessment tool?

34 One question in the written test is at issue. The question assessed one essential knowledge qualification and the ability to communicate in writing. Candidates were instructed not to use bullet or point form in their responses since grammar and punctuation, as well as sentence and paragraph structure, were being assessed. Also, candidates’ responses were not to exceed 200 words.

35 When the tests were marked, the assessors did not apply the word limit; however, the matter at issue here is whether the test, in its original format, was flawed. The issue of whether it was an abuse of authority to set aside the word limit instruction is addressed later in these reasons.

36 The complainant argues that it was not possible to obtain a perfect score in knowledge and pass the written communication qualification, because the answer key contains bullets, is not structured in paragraphs, and contains 242 words.

37 The complainant testified that he raised this problem with the board member who conducted his informal discussion. This is the board member the respondent initially intended to call as a witness, but who was not available. The complainant submits that the Tribunal should draw a negative inference from the absence of this board member as a witness. He tendered a written summary of the informal discussion which she prepared and signed. The document confirms that she told the complainant that nearly 60 candidates had passed the knowledge qualification with responses of 200 words or less.

38 The complainant asserts that either the board member misinformed him, since the assessors had not counted the words or the decision not to count the words was made after his meeting with her on July 3, 2008.

39 The Tribunal finds that the complainant’s assertion is not supported by the evidence. The complainant has established that 12 candidates who passed the test wrote more than 200 words. However, since the final Appointment Process Report shows that 79 candidates passed the written test, there is no basis for concluding that the information given to the complainant during informal discussion was inaccurate, or requires an explanation from the board member. Therefore, even if the board member had been able to testify, given the respondent’s explanation, the Tribunal will not draw an adverse inference from the absence of the board member during the hearing.

40 The respondent acknowledges that the answer key for the written test is over 200 words. Wendy McMurray, who was Manager of Employment Insurance at the time of this appointment process, was one of two board members who marked the written test. Ms. McMurray explained that candidates’ knowledge was assessed based on whether they identified the three components of the Performance Management Discussion Cycle and the key elements of each component. She stated that candidates were not required to use the exact wording in the answer key. Ms. McMurray testified that the answer key was a guide for assessors that contained many points that candidates might address in their answers.

41 There is no evidence before the Tribunal that contradicts Ms. McMurray’s explanation that the answer key was a guide for assessors and that candidates did not need to cover every point in it to meet the knowledge requirement. Given this explanation, the fact that the answer key is over 200 words is not determinative. Moreover, the Tribunal notes that, although the answer key is not set out in paragraphs, its format is not significantly different from the one required of candidates. The answer key is one page with three sections. Although the content of each section is marked with bullets, the information is, for the most part, in complete sentences.

42 Based on Ms. McMurray’s testimony, the Tribunal concludes that the imposed word limit is relevant to the communication qualification assessed by the test, since conciseness is one of the criteria related to the ability to communicate in writing. The Tribunal finds that the word limit has no relation to the knowledge qualification and was therefore unnecessary. Although it has not been demonstrated whether it was possible or impossible to obtain a perfect mark in the knowledge qualification assessed by this question, the complainant acknowledged that he reviewed the tests of the 26 appointees who had all passed the test, and 14 of those responses were 200 words or less. Accordingly, the Tribunal cannot conclude that the answer key was inconsistent with the test instruction.

43 The Tribunal finds that the complainant has not demonstrated that this written test was a flawed assessment tool.

Issue III:  Did the respondent abuse its authority by changing the instructions for the written test?

44 The respondent confirmed that, although a 200 word limit was imposed on candidates when they wrote the test, the assessors did not enforce the word limit when they marked the tests.

45 The complainant submits that the respondent abused its authority since it did not inform candidates that the 200 word limit would not be enforced and he stopped writing to stay within the limit. In support of his argument, the complainant relies primarily on the Tribunal’s decision in Chiasson v. Deputy Minister of Canadian Heritage, 2008 PSST 0027.

46 The Tribunal finds that the circumstances in Chiasson are different from those in this case. In Chiasson, the respondent issued instructions to all candidates; however, when it issued new instructions, the complainant did not receive them. As a result, the complainant wrote her test under a restriction that the other candidates did not face. Consequently, the respondent did not assess the complainant on the same basis as it assessed the other candidates.

47 In this case, all candidates received the same instructions and there is no evidence that any candidate was informed that the assessment board would not apply the 200 word limit. The Tribunal is satisfied that all candidates, including the complainant, wrote the test under the same instruction.

48 The Tribunal is also satisfied that the assessment board was consistent in the way it assessed candidates’ written tests. There is no evidence to contradict Ms. McMurray’s testimony that the board did not enforce the word limit for any candidate.

49 However, although Ms. McMurray said that the word limit was a guideline for candidates, the instruction was stated in very clear terms and would most likely have influenced how candidates composed their responses. As such, it was an error not to assess candidates under the terms that had been imposed on them when they wrote the test.

50 Abuse of authority is not defined in the PSEA. However, s. 2(4) of the PSEA offers the following guidance: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.” In Tibbs the Tribunal established that abuse of authority can include errors. Whether an error constitutes an abuse of authority will depend on the nature and seriousness of the error in question, including its consequences. In this case the Tribunal finds that the respondent’s error does not amount to an abuse of authority.

51 The complainant passed the communication qualification assessed by the test. With respect to the knowledge qualification, the complainant testified that he stopped writing at about 180 or 190 words because of the limit that had been imposed. The evidence, however, establishes that the complainant wrote 147 words. More importantly, the test required candidates to explain the Performance Management Discussion Cycle (PMDC); however, Ms. McMurray testified that the complainant described the Performance and Learning Agreement, which is different. He failed to identify the three components of the PMDC and was only awarded points because some of the elements he included are common to both subjects. Ms. McMurray’s evidence, which was not contested, demonstrates that the complainant’s answer was not responsive to the question. Therefore, the Tribunal finds that the evidence does not support a finding that there is a link between the fact that the complainant wrote a response of less than 200 words and his failure to meet the knowledge qualification. The Tribunal concludes that the respondent’s decision not to apply the 200 word limit had no impact on the complainant’s results for the written test.

52 The complainant’s circumstances are different from those of the complainant in Poirier v. Deputy Minister of Veterans Affairs, 2011 PSST 0003. In Poirier the respondent issued instructions that could reasonably be interpreted in two markedly different ways. This ambiguity, combined with the respondent’s refusal to accept or consider that its instructions were flawed, led to an improper assessment of the complainant. The ambiguity in those instructions is not present in the instruction at issue here. Moreover, the Tribunal has found as a fact that the error did not affect the complainant’s assessment as it did in Poirier.

53 The respondent has acknowledged that if it had only marked the first 200 words, three of the appointees would not have passed the knowledge qualification. However, in the Tribunal’s view, the objective of conducting an appointment process is to find candidates who meet the established qualifications. The Tribunal is not satisfied that the respondent’s decision to assess candidates’ knowledge based on their full responses was improper.

54 Some of the appointees’ responses were well over 200 words. Ms. McMurray explained that rather than rely on the number of words, conciseness was assessed based on whether the candidate’s response was focused on the topic and succinct. In the Tribunal’s view, this is a more appropriate approach to assessment than to impose a strict and arbitrary word limit.

55 The requirement under s. 30(2) of the PSEA is that a candidate must meet each essential qualification to be appointed. Conciseness was just one of several criteria related to the ability to communicate in writing, and there is no evidence that any of the appointees failed to demonstrate the communication qualification. Accordingly, there is no basis to conclude that any of the appointees was not qualified to be appointed.

56 The impact, if any, of the respondent’s error on any other candidate who was unsuccessful in the written test is not a matter for the Tribunal to consider in the context of these complaints. The Tribunal has established that a complaint must be personal to the complainant; it cannot be made on behalf of others. See Visca v. Deputy Minister of Justice, 2006 PSST 0016 at para. 24.

57 The complainant argues that this case is similar to Burke v. Deputy Minister of Department of National Defence, 2009 PSST 0003. The Tribunal does not agree. In Burke the respondent significantly changed the qualification being assessed and the assessment tool did not assess the new qualification. In this case the qualifications themselves were not changed and it has not been demonstrated that the test did not properly assess the qualifications.

58 The Tribunal finds that the complainant has not demonstrated that the respondent changed the instructions to candidates. Moreover, the complainant has not demonstrated that the respondent abused its authority by not enforcing compliance with the 200 word limit instruction. Accordingly, the Tribunal concludes that the complainant has not established that the respondent abused its authority regarding the instruction for the written test.

Issue IV:  In administering the written test, did the respondent provide an unfair advantage to one candidate?

59 Candidates wrote the test by hand, with the exception of one candidate who was allowed to complete it on a computer as an accommodation measure. The complainant submits that this candidate had an advantage because the computer had a word-count feature. The complainant testified that this candidate’s test response was exactly 200 words and, although this evidence was uncontested, no one who appeared before the Tribunal was able to give direct evidence on this issue.

60 Even if the Tribunal accepts that the computer used by this candidate had a word-count function and that the function was activated during the test, the Tribunal cannot conclude that the respondent provided an advantage to this candidate since, ultimately, the respondent did not enforce the 200 word limit.

61 The Tribunal finds that the complainant has not demonstrated that the respondent provided an unfair advantage to one of the candidates.

Issue V:  Did two of the managers who were involved in this process fail to ensure that they were not in a conflict of interest?

62 The complainant submits that Ms. Delgaty and Ms. McMurray failed to ensure that they were not in a conflict of interest in performing their roles in this appointment process.

63 Ms. Delgaty testified that she did not look carefully at the names of candidates when she approved the results at each of the assessment stages in this process. Similarly, Ms. McMurray testified that she did not pay attention to the candidate’s name when she marked the written tests.

64 The PSC’s Assessment Policy requires that those who are responsible for assessment must not be in a conflict of interest, and can perform their responsibilities in a fair manner. As the respondent points out, the Values and Ethics Code for the Public Service requires that those who participate in appointment-related decisions ensure that they do not grant preferential treatment or assistance to family or friends.

65 Ms. Delgaty acknowledged that she likely recognized the names of some candidates on the various assessment result documents she approved. Ms. McMurray identified two of the appointees as people with whom she had worked. There is no evidence that either of these managers had friends or family members among the candidates in this appointment process.

66 The complainant asserts that board members must know who they are assessing in order to avoid a real or perceived conflict of interest. However, the Tribunal finds that the complainant’s logic is flawed on this point. Contrary to the complainant’s position, in the Tribunal’s view, real or perceived conflict of interest would be diminished, if not eliminated, if board members had no means of identifying the candidates they assess.

67 The Tribunal concludes that the complainant has not demonstrated that these board members were in a conflict of interest, or that they failed to ensure that they were not in a real or perceived conflict of interest.

Final Matter

68 The Tribunal notes that a large portion of the complainant’s testimony, as well as several documents he presented in evidence and much of the testimony he drew from the respondent’s witnesses was related to the allegations he later withdrew. Accordingly, the Tribunal has not included that evidence in its deliberations or in these reasons.

Decision

69 For all these reasons, the Tribunal finds that the complainant has not demonstrated that the respondent abused its authority in this appointment process. The complaints are dismissed.

Merri Beattie
Member

Parties of Record

Tribunal Files:

2009-0316, 0626, 0627, 0628, 0629, 0630, 0631, 0632, 0633, 0634, 0635, 0636, 0637, 0638, 0639, 0640, 0641, 0642, 0643, 0644, 0687, 0731, 0732 and 2010-0131, 0241, 0242

Style of Cause:

Chris Hughes and the Deputy Minister of Human Resources and Skills Development Canada

Hearing:

December 5 and 6, 2012
Victoria, BC
(Written submissions concluded
February 9, 2013)

Date of Reasons:

June 6, 2013

APPEARANCES:

For the complainant:

Chris Hughes

For the respondent:

Allison Sephton

For the Public
Service Commission:

Trish Heffernan