FPSLREB Decisions

Reasons for Decision

Introduction

1 Following a process for the selection of employees for retention or lay-off (SERLO process), Michel Châteauvert, the complainant, was selected for lay-off from his EL-04 Technical Support Officer position at Statistics Canada (StatsCan). He alleges that the respondent, the Chief Statistician of StatsCan, abused its authority by considering improper factors as well as inaccurate and unsubstantiated information in its assessment of his qualifications.

2 The respondent asserts that the SERLO process was transparent, well planned, and properly executed. Having applied the same assessment tools to all four participants, the complainant was selected for lay-off based on relative merit.

3 The Public Service Commission (PSC) did not attend the hearing, and did not take a position on the merits of this complaint. It provided written submissions regarding those of its Guides that apply to the written allegations that were filed by the complainant on September 13, 2012. As noted later in these reasons, in presenting his case at the hearing, the complainant did not address several of his original allegations.

4 For the reasons that follow, the complaint is dismissed. The Tribunal finds that the complainant has not demonstrated that the respondent abused its authority in assessing his qualifications or when it selected him for lay-off.

Background

5 This SERLO process was conducted to reduce the number of EL-04 employees in the Informatics Branch in StatsCan from four to three. The four employees had from May 28 to June 4, 2012 to complete and submit a track record to demonstrate how they met the three qualifications to be assessed. They had to provide one recent work‑related example for each of the qualifications, namely, client service orientation, reliability and focus on results. The employees’ director then validated the track records, following which a three-member evaluation review board assessed the employees based on their track records and the validations. The relative merit of the employees was established, based on their total scores.

6 The respondent determined that the complainant’s overall score was significantly lower than the other three employees’ and, on July 10, 2012, he was informed that he would not be retained and his services in his substantive position would not be required beyond November 6, 2012.

7 On July 25, 2012, the complainant filed a complaint of abuse of authority with the Public Service Staffing Tribunal (the Tribunal) under s. 65(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

8 On September 13, 2012, the complainant filed written allegations. At that time, he alleged that the respondent abused its authority in its choice of the method used to determine who would be laid off among the four EL-04 employees. Specifically, he stated that the respondent failed to assess qualifications that are relevant to the work and relied on subjective opinions to assess the employees rather than using their performance reviews. The complainant did not present any evidence or make any submissions in support of those allegations. At the hearing, the complainant alleged only that the respondent abused its authority since it failed to inform him that the director’s validation would be used to assess his qualifications, and because the director’s validation of his track record was flawed.

Issue

9 The Tribunal must determine whether the respondent abused its authority by selecting the complainant for lay-off based on a flawed validation of his track record.

Analysis

10 Section 65(1) of the PSEA provides that an employee who is selected for lay-off may make a complaint to the Tribunal that his or her selection constitutes an abuse of authority.

11 Abuse of authority is not defined in the PSEA. However, s. 2(4) provides that “[f]or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.” While abuse of authority is more than simply errors and omissions, some actions may constitute such serious errors or important omissions that they amount to abuse of authority, even if unintentional. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 72-74.

12 It is well established that the complainant has the burden of proving his allegations, on a balance of probabilities. See Tibbs at paras. 50, 53 and 55.

13 In Maclean v. Secretary of the Treasury Board of Canada Secretariat, 2012 PSST 0021 at para. 93, the Tribunal held that abuse of authority has the same meaning in relation to lay-off complaints made under s. 65(1) of the PSEA as it has for complaints made under s. 77.

14 The complainant’s allegations concern the director’s validation of his track record. He asserts that he was not informed that the validation would be used to assess his qualifications. He also submits that the validation is not accurate and is based on factors that should not have been considered. The complainant argues that the respondent assessed and selected him for lay-off based on the validation, which is flawed.

Were employees informed that their track record would be validated, and that the validation would be used in the assessment?

15 The complainant points out that the presentation document that was used during employee information sessions about SERLO processes contains a statement that evaluation review boards would base their assessments on the employee’s written responses. The statement does not mention the director’s validation.

16 The evidence does not support this allegation. It is clear from the entire presentation document that the employees’ track records would be validated by their director, and that both the track record and the validation would be used by the evaluation review board to assess employees. The complainant confirmed that he attended an information session on May 4, 2012. The respondent also posted questions and answers about SERLO processes (Q & As) on its intranet site. The Q &  As contain information about the nature and use of a director’s validation, and the complainant acknowledged that, before completing his track record, he reviewed these Q & As. In addition, the instructions provided to employees with the track record document state that the track record would be sent to the employee’s director for validation, and that the evaluation review board would use the written responses to assess employees. Finally, at the top of the track record document, employees are instructed in bold letters to “[P]lease indicate the name of your home director to corroborate the facts of the examples provided. His/her comments will be taken into consideration in the evaluation of the examples.” In his track record, the complainant named Lise Duquet as his home director.

17 Based on the evidence presented, the Tribunal finds that the respondent informed employees about director validations and the use of these validations in the SERLO process.

Was the validation of the complainant’s track record inaccurate, unsubstantiated or based on improper factors?

18 Ms. Duquet, who was Acting Director of the Informatics Technology Operations Division at the time, validated all of the track records in this EL-04 SERLO process. Ms. Duquet testified that prior to validating the track records she received training and written instructions on completing the validations. Directors were instructed to consult with the employee’s chief or someone more senior, if required, to determine whether each example was overstated, somewhat overstated, accurate, somewhat understated, or understated. They also had to confirm whether the example reflects the employee’s typical, regular, and ongoing behaviour.

19 According to her testimony and the validation document that she completed during the SERLO process, Ms. Duquet consulted the Assistant Director and the complainant’s current and former chiefs to complete her validation of his examples. She concluded that the complainant’s examples for client service orientation (Q1) and reliability (Q2) were somewhat overstated. She included brief explanations for her conclusions in the validation document. Ms. Duquet found that the complainant’s example for focus on results (Q3) was accurate; however, she noted that the complainant only occasionally demonstrates this qualification.

20 Daniela Ravindra, Director of Enterprise Statistics, was one of three members of the evaluation review board that assessed the EL-04s in this SERLO process. Ms. Ravindra explained that each employee’s track record examples were assessed using the criteria established for each of the three qualifications set out in the Rating Guide. A score was determined based on a rating scale and, subsequently, the score for each example was adjusted based on the director’s validation. Ms. Ravindra testified that all three of the complainant’s scores were lowered because of the director’s validation.

21 The complainant submits that there is insufficient evidence to support the director’s validation. He presented his work description, and testified that he performs the activities and possesses the skills listed in it. This evidence does not support his allegation that the director’s validation is flawed. The work description lists duties, tasks and skills; however, it provides no information as to whether an employee possesses the qualifications assessed in the SERLO process.

(i) Validation of Client Service Orientation – Q1

22 The complainant submits that the director’s validation raises issues that were not addressed in his performance reviews. He tendered seven of his performance reviews that cover most of the period from April 2001 to April 2011. The respondent argues that the performance reviews are not relevant since they were not used in the SERLO process.

23 The Tribunal finds that the complainant’s performance reviews are not relevant to the validation for Q1. Ms. Duquet concluded that the example the complainant provided generally reflects his day-to-day client service orientation. The comment that affected the complainant’s assessment for this qualification is specifically related to the example he provided. According to the complainant’s testimony, his example for Q1 describes work he performed in August or September 2011, which is after the period covered by the performance reviews.

24 Ms. Duquet concluded that the complainant overstated the level of client satisfaction with respect to his example for Q1. The complainant wrote that the client was “amazed at the great results” of his work. However, Ms. Duquet testified that the Assistant Director, whom she consulted on this example, contacted the client, who confirmed that he was satisfied with the result, but not amazed. The complainant testified that he had not received negative comments about this work from the client or his supervisor.

25 The Tribunal finds that the complainant’s evidence is not inconsistent with the comment in the validation and therefore does not demonstrate that the validation for Q1 is inaccurate or unsubstantiated.

(ii) Validation of Reliability – Q2

26 The Tribunal is satisfied that the complainant’s performance reviews are relevant to the validations for Q2 and Q3 because the conclusions, and ultimately the complainant’s assessments for those qualifications, are based on comments about whether his examples reflect his regular, ongoing behaviour.

27 The Tribunal finds, however, that the performance reviews are of little value in determining the accuracy of the director’s validation with respect to the qualifications that were assessed in the SERLO process. The performance reviews are very brief and almost exclusively evaluate whether the complainant completed work that had been assigned during the review period. On their face, the performance reviews are task oriented and contain few references to the complainant’s behaviour. As such, they contain very little information related to the qualifications that were assessed in the SERLO process. They do not contain any information that is inconsistent with the validation.

28 An Trinh, the complainant’s former chief, is one of the managers whom Ms. Duquet consulted for the validation of Q2. He supervised the complainant for several years, until 2011. Mr. Trinh testified that the complainant sometimes refuses work because he believes it should be done by an employee in the Computer Systems (CS) occupational group. As an example, Mr. Trinh explained that some work stations are used as servers and, when they require service, the complainant has refused the work, which he views as related to the server and, therefore, CS work. Mr. Trinh acknowledged that it is sometimes difficult to distinguish between EL and CS work. Nevertheless, he had to intervene to get the complainant to do the work.

29 The Tribunal notes that the complainant does not deny that he has refused work assignments. As to whether he refused without “justifiable reasons”, as stated in the validation, the Tribunal finds that the complainant’s evidence is insufficient to refute that statement. The complainant submits that he was respecting the separate work jurisdictions of two unionized groups of employees. However, Mr. Trinh’s evidence indicates that, on his direction, the complainant ultimately did the work. The complainant did not provide any evidence to the contrary, or any evidence that this disagreement was ever resolved in a manner that demonstrates that the complainant was justified in initially refusing the work.

30 Mr. Trinh also testified about comments in the validation which state that the complainant avoids complex work and requires significant instruction or help from others when he does complex work. Mr. Trinh described complex work as repair requests where the problem is not readily identifiable, such as when the client’s computer screen is blank and the reason is not obvious. He also testified that the complainant is not comfortable working on Intel processors 3, 5 or 7. Mr. Trinh stated that the reason the complainant has difficulty with complex work is that he has not maintained his technical knowledge.

31 The complainant asserts that Mr. Trinh’s testimony demonstrates that knowledge was considered in the validation and, therefore, in his assessment. He submits that this is improper since knowledge was not one of the qualifications assessed in the SERLO process.

32 The evidence suggests that the complainant’s knowledge may have had an effect on the type of work he chose to do and on the extent to which he was capable of completing certain work on his own. However, there is no evidence that the complainant was denied training to improve his knowledge. On the contrary, Mr. Trinh testified that he had many discussions with the complainant about updating his knowledge and, in the complainant’s performance review for 2006/2007, Mr. Trinh recommended that the complainant invest more energy to upgrade his technical knowledge to address ongoing changes in technology. Eventually, Mr. Trinh made training mandatory for the complainant by putting it in his performance objectives for 2009/2010.

33 In any case, there is no reference to the complainant’s knowledge in the validation. The comments in the validation are about the complainant’s behaviour. The complainant did not produce evidence to contradict the validation document or Mr. Trinh’s testimony that he selects non-complex work when possible and requires extra instruction when he does complex work.

34 The Tribunal cannot conclude that the remarks in the validation document about the complainant’s behaviour regarding complex work are inaccurate or unsubstantiated, or based on improper factors.

35 According to Mr. Trinh, most of the EL work is generated by clients submitting requests through the service request management system (SRM). The EL employees retrieve the requests from the SRM and self-assign them. There is no evidence before the Tribunal to contradict the validation document or Mr. Trinh’s testimony that the complainant self-assigns fewer cases from the SRM than his co-workers.

36 Mr. Trinh testified that one of the reasons he has concerns about the complainant’s reliability is that he is often late for work. The evidence shows that the complainant and Mr. Trinh had discussed the complainant’s tardiness. They had an arrangement that the complainant would make-up the time at the end of the work day. Nevertheless, Mr. Trinh’s uncontested testimony is that the complainant’s pattern of being late had an impact on the small team of EL employees.

37 The complainant submits that it was improper for the respondent to consider attendance in the assessment. According to the respondent’s SERLO process Q & As, an employee’s attendance record would not be a factor in the assessments.

38 There is no evidence that the complainant’s attendance record was a factor in the assessment of either Q1 or Q3. However, the complainant’s attendance record was considered in the assessment of Q2. Although there is no reference to the complainant’s tardiness in the validation, the Tribunal finds, based on Mr. Trinh’s testimony, that it was part of his input to the validation. Consequently, it was a factor in the score assigned to the complainant for Q2. The Tribunal concludes, however, that it was not improper to consider punctuality or attendance in the assessment of reliability since the track record document, which was provided to employees, clearly includes attendance in the definition of reliability.

39 The Tribunal finds that the evidence does not demonstrate that the director’s validation for Q2 is inaccurate, unsubstantiated, or based on improper factors.

(iii) Validation of Focus on Results – Q3

40 Mr. Trinh was also consulted for the validation of Q3. In his testimony, he confirmed that the comments in the validation reflect his views. The project described in the complainant’s example involved overtime; however, Mr. Trinh testified that the complainant did not normally volunteer for work that required overtime. Mr. Trinh acknowledged that, given its voluntary nature, the complainant had the option not to work overtime.

41 Since the complainant included information that he worked overtime on this project, Mr. Trinh’s explanation that this was not the complainant’s regular, ongoing behaviour is relevant for the validation. There is no evidence to contradict this testimony. Moreover, willingness to work overtime is one of the assessment criteria for this qualification.

42 There is also no evidence to contradict the validation document or Mr. Trinh’s testimony that the complainant is selective in the work he completes himself. The matters of self-assigned work and non-complex work have already been addressed in these reasons.

43 The validation for Q3 also states that the complainant relies on junior staff “to test.” Ms. Duquet testified that one of the assessment criteria for this qualification is monitoring the quality of the work. According to Ms. Duquet, the complainant did not demonstrate this aspect of the qualification when he relied on junior staff to test the work on completion. This evidence is not contested, and the Rating Guide confirms that this aspect of the work was one of the assessment criteria.

44 The Tribunal finds that the evidence does not demonstrate that the validation for Q3 is inaccurate or unsubstantiated.

45 The complainant submits that the only evidence available to him to support his allegations is his performance reviews. However, although the performance reviews are relevant to the validations for Q2 and Q3, they do not contain any information that contradicts the validations. The complainant did not provide any evidence through his own testimony, the testimony of any other witness, or additional documentary evidence to sufficiently refute the director’s validation or challenge the testimony of the respondent’s witnesses.

46 The Tribunal concludes that, viewed in its entirety, the evidence does not demonstrate that the director’s validation of the complainant’s track record is inaccurate, unsubstantiated, or based on improper factors.

47 It is also important to note that the complainant’s track record was the primary consideration in his assessment in the SERLO process. Ms. Ravindra’s uncontested testimony is that, when the board assessed the four EL employees’ track records, before considering the director’s validations, the complainant’s track record received the lowest overall score.

48 The complainant has not demonstrated that the respondent abused its authority in validating his track record, using it as part of its assessment of his qualifications, or in selecting him for lay-off.

Decision

49 For all these reasons, the complaint is dismissed.

Merri Beattie
Member

Parties of Record

Tribunal File:

2012-0989

Style of Cause:

Michel Châteauvert and the Chief Statistician of Canada

Hearing:

May 16 and 17, 2013
Ottawa, ON

Date of Reasons:

September 3, 2013

APPEARANCES:

For the complainant:

Jim Shields

For the respondent:

Christine Langill

For the Public
Service Commission:

Karyne Mongrain
(written submissions)