FPSLREB Decisions

Reasons for Decision

Introduction

1 Kevin Brennan, the complainant, filed a complaint of abuse of authority concerning the proposed appointment of Kevin McGrath (the proposed appointee) to the position of Plant Operations Officer, an 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) by establishing an unrecognized equivalent as an alternative to an essential occupational certification qualification; (2) by showing bias in this appointment process; and (3) by conducting a process that was not fair and transparent.

3 The respondent recognizes that one essential qualification in the Statement of Merit Criteria (SMC) contained an error but it denies that an abuse of authority occurred. As a result, it cancelled the appointment process and no appointment ensued. It submits that it showed no bias in favour of the person it had proposed to appoint and that the process was conducted in a fair and transparent manner.

4 The Public Service Commission (PSC) appeared at the hearing and called a witness to explain how the Middle Management Simulation exercise is generally conducted and assessed. It took no position on the merits of the complaint.

5 For the reasons that follow, the Public Service Staffing Tribunal (the Tribunal) finds that the complainant has not established that the respondent abused its authority in this appointment process.

Background

6 In November 2012, the respondent initiated an internal advertised appointment process to fill the Plant Operations Officer position within the Formation Construction Engineering (FCE) Division at DND in Halifax, Nova Scotia. The complainant and Mr. McGrath applied for this position.

7 At the time the process was conducted, both the complainant and Mr. McGrath occupied positions within the FCE Division. The complainant was the External Systems Manager and Mr. McGrath was the Plant Operations Officer. However, Mr. McGrath was scheduled to retire from the Canadian Forces (CF) on December 31, 2012. Therefore, a process was initiated to fill his position as it would become vacant as of January 1, 2013.

8 Mr. McGrath’s position was classified as a military position prior to his retirement from the CF. Before initiating the appointment process to fill his position, the respondent converted it to a civilian position at the EG-07 group and level to make it easier to fill. Four persons applied for the new civilian position, including Mr. McGrath.

9 The four applicants were assessed by the assessment board, which consisted of Maj. Craig Crawley, Utility Officer of the FCE Division, and Marilyn Montgomery and Sherrie Bushen, Regional Psychologists (now called Assessment Specialists) at the PSC Personnel Psychology Centre, Atlantic.

10 Two of the four candidates were screened into the process, namely the complainant and Mr. McGrath. The complainant was eliminated from the process because he did not meet one of the essential qualifications assessed by the simulation exercise and Mr. McGrath was selected as the successful candidate. The Notification of Appointment or Proposal of Appointment (NAPA) for the appointment of Mr. McGrath was posted on the federal government’s Publiservice website on December 31, 2012.  

11 The proposed appointment of Mr. McGrath was cancelled on January 10, 2013, when the respondent realized that an error had been made in the establishment of an essential qualification.

12 On January 15, 2013, the complainant filed his complaint of abuse of authority with the Tribunal under s. 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (PSEA).

13 Following the cancellation of the appointment process at issue, the respondent hired Mr. McGrath on a casual basis for 90 days and initiated an external advertised appointment process to fill the position, which resulted ultimately in Mr. McGrath’s appointment into the position.

14 On October 21, 2013, the Tribunal rendered a decision with respect to the respondent’s motion to dismiss on the basis that the complaint was moot.  The Tribunal determined that the issue was not moot even though the appointment process had been cancelled because there was still a tangible and concrete dispute between the parties.

Preliminary matters

15 The respondent submits that the complainant lacked the necessary personal interest to bring a s. 77 complaint. It submits that in January of 2013 when the complainant filed his complaint, he wanted to retire from the public service and had asked for a “package”, i.e. a transition support measure. An email written by the complainant dated October 15, 2012, was presented in evidence. It shows that the complainant would have considered retiring from the public service if he could have received a transition support measure at that time. He did not receive a “package”, however, and one month later he applied for the Plant Operations Officer’s position. He was not selected for appointment. He therefore remained in his position as the External Systems Manager until he received a letter, on May 9, 2013, informing him that because of a lack of work, his services were no longer required.  In this work force adjustment letter, three different transitional support measures were offered to him. He chose one of the three and is now retired from the public service.

16 In support of its position, the respondent also affirms that during the exchange of information that took place on February 13, 2013, the complainant specifically said that he was looking to develop jurisprudence through this complaint. According to the respondent, the complainant admitted that he was not interested in the position but was interested in correcting what he perceived to be a wrong.  Charles Hart, Staffing Officer, took notes as the facilitator during the exchange of information meeting. These notes were not filed into evidence, but Mr. Hart explained that after the meeting, he provided these notes to the complainant for his review, and he did not receive any comments in return.

17 The complainant recognizes that he may have said that he only wanted to correct a wrong, but he submits that he still had a personal interest in the position at the time he filed his complaint.  

18 The complainant also does not challenge the fact that before the appointment process was advertised, he inquired whether it was possible for him to retire early with some sort of compensation. However, given that an appointment process was initiated to fill the Plant Operations Officer position, he realized that it would make sense for him to continue working, since the higher salary of that position would have increased his pension. He asserts that when he filed his complaint in January 2013, he was interested in being appointed to this new civilian position.

19 The respondent counters that if the complainant had been interested in the position, he would have applied when the subsequent external advertised process, open to the public, was initiated later in the spring to fill the Plant Operations Officer position.

20 The complainant explained that he did not apply to the external process because he did not meet the occupational certification qualification set out in the Job Opportunity Advertisement (JOA). The JOA listed a requirement for a First Class Power Engineering Certificate or a Canadian Armed Forces Construction Engineer Superintendent Qualification, or proof that the candidate was a Certified Mechanical Engineering Technologist. The complainant did not have any of those certifications. He has a Second Class Power Engineering Certificate.

21 The Tribunal is satisfied that the complainant has established that he had an interest in the position at the time he filed his complaint. He explained why he applied for the position, notwithstanding the fact that he had made inquiries about a possible retirement option. The respondent’s motion to dismiss is therefore denied and the Tribunal will address the issues in dispute between the parties.

Issues

22 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority by establishing an unrecognized equivalent as an alternative to an essential occupational certification qualification?
2. Did the respondent demonstrate bias in this appointment process?
3. Did the respondent abuse its authority by conducting a process that was not fair and transparent?

Analysis

23 Section 77(1) of the PSEA provides that a person in the area of recourse may file a complaint with the Tribunal that he or she was not appointed or proposed for appointment because of an abuse of authority. As noted in Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at para. 66, “abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority”. The complainant has the burden to prove, on a balance of probabilities, that there was an abuse of authority.

Issue I: Did the respondent abuse its authority by establishing an unrecognized equivalent as an alternative to an essential occupational certification qualification?

24 It is not contested that the JOA for this appointment process required a provincial certification or, as an alternative, an equivalent that was later found not to exist.  The essential qualification at issue stated: “Possession of a First Class Power Engineering Certificate/or equivalent qualification as recognized by Nova Scotia Labour and Workforce Development Power Engineering Chief Inspector” (the occupational certification qualification).

25 Maj. Crawley’s uncontested testimony is that the equivalency had existed in the past and it was his understanding at the time that the situation had not changed.   The Tribunal is satisfied that when Maj. Crawley established the occupational certification qualification, he believed that the equivalency existed as it had in the past.  Mr. Hart explained that the qualification was drafted broadly in order to attract as many candidates as possible from within the FCE – MARLANT [Maritime Forces Atlantic], and from among members of the Canadian Forces with a home posting in FCE – MARLANT.

26 Stewart Andrews, Halifax Plant Manager, testified that he told Maj. Crawley, after the JOA was issued, that there was no recognized equivalent to the provincial certification.  The complainant also informed Maj. Crawley of this by email immediately after the JOA was posted.

27 Maj. Crawley then consulted the Nova Scotia Labour and Workforce Development Power Engineering Chief Inspector.  He was advised that an equivalent to the provincial certification no longer existed.  He therefore spoke to Mr. Hart about the matter and they decided to cancel the appointment process.

28 Having learned that no equivalent certification existed, as was initially believed, Mr. Hart sent an email to the complainant on January 10, 2013, informing him that the appointment process had been cancelled. An email was also sent to Mr. McGrath on the same date informing him that it had been determined that he did not meet the occupational certification qualification. He was advised that he would not be appointed to the position and that the appointment process had been cancelled. 

29 It is clear from the preamble and the scheme of the PSEA that minor errors or omissions do not constitute an abuse of authority. Whether or not an error constitutes an abuse of authority will depend on the nature and seriousness of the error. Furthermore, as it has been established in the Tribunal’s jurisprudence, intent is not required when determining abuse of authority.

30 The Tribunal finds that the respondent made an error in establishing an equivalent certification that was no longer recognized.  However, it detected its error and corrected it by cancelling the proposed appointment and appointment process. The Tribunal finds that, in the circumstances, the error is not serious enough to constitute an abuse of authority.

Issue II: Did the respondent demonstrate bias in this appointment process?

31 The complainant alleges that the respondent was biased against him and was biased in favour of Mr. McGrath.

32 To establish bias, it is not necessary that actual bias is found. A reasonable apprehension of bias may constitute abuse of authority. See Denny v. Deputy Minister of National Defence, 2009 PSST 0029 at para. 125, referring to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394.

33 The Tribunal determined in Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010, that persons assigned to assess candidates in an appointment process have the duty to conduct an unbiased assessment, that does not give rise to a reasonable apprehension of bias. The Tribunal adapted the test set out in Committee for Justice and Liberty to fit the context of bias in an appointment process, as follows: If a reasonably well informed person would reasonably apprehend bias on the part of one or several of the persons responsible for the assessment, the Tribunal may conclude that there was an abuse of authority.

34 The complainant states that he was not on good terms with his supervisors. He explained that he was away from work on extended leave between January 2010 and April 2011. One of the employees whom he used to supervise, Russel Richard, testified that during the complainant’s absence, the number of persons under the complainant’s supervision was reduced from 30 to 7 due to a reorganization of the FCE Division.  Mr. Richard explained that when the complainant returned to work, he was informed that grievances had been brought by the remaining employees. According to Mr. Richard, the complainant took his employees’ side on these grievances and as a result, his relationship with his military supervisor, the Auxiliary System Officer, was negatively affected.

35 The complainant contends that because he defended his staff, management probably did not want him to obtain the Plant Operations Officer position, and preferred that Mr. McGrath be appointed. 

36 Maj. Crawley explained that he became the Utility Officer in August 2011, and was not the complainant’s supervisor when he experienced conflict with management. Maj. Crawley stated that the Auxiliary System Officer in the FCE Division, to whom the complainant reported at the time, reported in turn to the Utility Officer who was there before him. Consequently, according to him, the grievance situation had no bearing on the decisions made by the assessment board.

37 Applying the test to the facts of the case, the Tribunal finds that a reasonably well informed person, considering the whole of the evidence, would not reasonably apprehend bias on the part of Maj. Crawley against the complainant. In the Tribunal’s view, the evidence does not support a finding that the assessment board did not fairly consider the complainant’s candidacy because of his involvement with the grievances.

38 The complainant also submits that the respondent demonstrated bias in favour of Mr. McGrath in several ways. In his view, the JOA was written to ensure that only Mr. McGrath would qualify for the position. For example, one asset qualification was experience operating a natural gas fired heating plant. According to the complainant, very few Power Engineers in Nova Scotia have such experience since natural gas has not been available in the region until recently.  In his view, it does not benefit an applicant to have experience operating a plant firing natural gas over any other applicant who possesses Power Engineer Certification, but has worked with a different fuel such as light oil, heavy oil, coal or any other commonly used fuel. The complainant alleges that the only reason this asset qualification was used in the JOA was to screen out many of the qualified people who may have been interested in applying for this position.

39 Maj. Crawley explained that a natural gas plant was being constructed in Nova Scotia at the time, and two existing plants were being converted into natural gas plants. It thus made sense to him to add, as an asset qualification in the JOA, “experience in the operation [...] of plants firing multiple fuels including natural gas”, as this experience would be helpful. He explained, however, that to have made this experience an essential qualification would have unduly limited the pool of applicants. This is why it was made an asset qualification and not an essential qualification.  He also testified that this asset qualification was not used to screen out candidates or to select the proposed appointee.

40 The Tribunal finds that the complainant has not demonstrated that a reasonably well informed person would reasonably conclude that the asset qualification was included in the JOA so that only Mr. McGrath would qualify for the position. The evidence shows that it was a reasoned choice to add the asset qualification.

41 The complainant also asserts that the respondent always intended to appoint Mr. McGrath.  He claims that before the Middle Management Simulation exercise testing date, Mr. McGrath had almost daily closed door sessions with Maj. Crawley. He clarified that he is not alleging that Maj. Crawley shared information about the exam with Mr. McGrath, but that their interaction before the exercise shows a perceived bias in favour of the candidacy of Mr. McGrath. According to the complainant, prior to that, it was uncommon for Mr. McGrath to have closed door sessions with Maj. Crawley on a daily basis.

42 Maj. Crawley acknowledged that he regularly had closed door meetings with Mr. McGrath during the appointment process.  The subjects discussed with Mr. McGrath related to safety issues, performance and disciplinary issues concerning employees, as well as grievances brought by employees. These were issues that could not wait until after the appointment process was over. He testified that, at different times, he had closed door meetings with the complainant to discuss similar issues.

43 Maj. Crawley further stated that he had explained the reasons for these meetings to the complainant.  Maj. Crawley testified that he did not disclose any information about the simulation exercise to Mr. McGrath. He added that he had received training on how to conduct the Middle Management Simulation exercise and it was very clear to him that the questions and the exercises must remain confidential.

44 The evidence does not support a finding that Maj. Crawley only wanted to appoint Mr. McGrath and that he improperly helped him prepare for the appointment process by disclosing confidential information about the Middle Management Simulation exercise. The Tribunal finds that, although Maj. Crawley and Mr. McGrath met on several occasions while the appointment process was ongoing, there is no evidence to refute Maj. Crawley’s testimony that the purpose of the meetings was to discuss workplace issues.

45 According to the complainant, the fact that Maj. Crawley decided to hire Mr. McGrath as a casual employee after his proposed appointment was cancelled is further evidence of bias in favour of Mr. McGrath.  He asserts that no one from inside the FCE Division was asked to fill this position. He further stated that he would have been interested in acting in the position but he was not approached.

46 Mr. Andrews testified that before Mr. McGrath was hired as a casual employee, Maj. Crawley had discussed with him the fact that as of January 1, 2013, the Plant Operations Officer position would be vacant. Mr. Andrews added that this was a serious concern for Maj. Crawley given that the Plant Operations Officer is responsible for approximately 85 employees. They agreed that given the deteriorating state of the existing heating plants and the construction of new plants, it was necessary to maintain continuity and have someone with experience to run them.  

47 Maj. Crawley also testified that in January 2013, they were in the middle of the heating season; therefore they urgently needed someone in the position. In addition, due to ongoing labour relations issues and the construction of new heating plants, they needed someone in the position with sufficient technical knowledge. Maj. Crawley added that Mr. McGrath was the obvious choice because he had all the necessary knowledge and experience to do the job. In addition, he was the only one in the cancelled appointment process to have met all the essential qualifications that were assessed by the Middle Management Simulation exercise.  Maj. Crawley hired Mr. McGrath for a period of 90 days.

48 Maj. Crawley explained that by the end of that 90-day period, the natural gas plant had been completed and was running and all the large boilers had been shut down because the heating season was over. By that time, Maj. Crawley was able to manage the workload. Therefore, the position was left vacant until the external advertised process was completed. 

49 The complainant further submits that the fact that Mr. McGrath was ultimately hired as the Plant Operations Officer as a result of the external process is another indication of bias on the part of the respondent in favour of Mr. McGrath. Moreover, he submits that the certification requirement for the external process was modified in order to reflect Mr. McGrath’s certification and thereby ensured that he would be qualified.   

50 Maj. Crawley explained that the external appointment process was initiated to fill the position of Plant Operations Officer four months after the internal process was cancelled. The process was open to the public because the previous internal advertised process had resulted in only four candidates applying for the position and the respondent wanted to attract more people.

51 As for the choice of the occupational certification, after speaking to the Nova Scotia Labour and Workforce Development Power Engineering Chief Inspector, Maj. Crawley realized he could attract more candidates in the external process by broadening the list to three types of certification. Approximately ten applications were received, according to Maj. Crawley. This was considered a reasonable pool of applicants. After all the candidates were assessed, Mr. McGrath was chosen for appointment.

52 The Tribunal notes that it does not have jurisdiction to determine whether bias was a factor in the casual appointment or the external appointment process. However, it can look at the evidence as a whole to determine whether there is a link between those appointments and the present complaint that would support a finding of a reasonable apprehension of bias.  See Brown v. Deputy Minister of National Defence, 2010 PSST 0012.

53 The Tribunal finds that the fact that Mr. McGrath was hired as the Plant Operations Officer as a casual employee and then hired in the position as a result of the external process, does  not  indicate  bias on the part of the respondent in favour of Mr. McGrath in the internal advertised process that is at issue. Maj. Crawley’s explanation to employ Mr. McGrath on a casual basis was reasonable given the urgency to fill the position during the winter season.  When the casual employment ended, the urgency had passed and the position was left vacant until the end of the external appointment process. Furthermore, the certification qualifications were broadened to ensure a bigger pool of candidates. 

54 The complainant has failed to establish a reasonable apprehension that the respondent was biased in favour of Mr. McGrath. The Tribunal finds that a reasonably well informed person would not conclude that the respondent was biased in favour of Mr. McGrath based on these events, whether viewed separately or as a whole.

55 Accordingly, the Tribunal finds that the complainant has not proven the allegations of bias.

Other information in support of the allegations of bias

56 During his final arguments, the complainant raised new information in support of his position that there was a perception of bias in the choice of the proposed appointee.

57 The respondent objected to the acceptance of this new information as evidence because the complainant’s case had already been closed.  The Tribunal allowed the complainant to raise the new information, and indicated that it would make its ruling in the course of its deliberations.

58 The complainant was, in fact, seeking to introduce new evidence after he had closed his case. The Tribunal dealt with a similar issue in Jalal v. Deputy Minister of Human Resources and Skills Development Canada, 2011 PSST 0038. The appropriate test to apply when determining whether new evidence can be accepted at the arguments stage of the hearing is found in Whyte v. Canadian National Railway, 2010 CHRT 6.  See also Murray v. Chairperson of the Immigration and Refugee Board of Canada, 2011 PSST 0036. This test requires that three conditions be fulfilled in order to accept new evidence where a tribunal has not yet reached its final conclusion:

1. It must be shown the evidence could not have been obtained with reasonable diligence for use at the hearing;
2. The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
3. The evidence must be such as presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

59 The complainant did not show that he was unable to obtain the evidence with reasonable diligence before closing the evidence portion of the hearing.  In fact, the complainant said that the information that he wished to introduce dated from over one year prior to the hearing and was publicly reported at that time. The Tribunal therefore concludes that it will not accept the complainant’s new evidence at the stage of the arguments because it does not meet the first condition set out in the Whyte test.   

Issue III: Did the respondent abuse its authority by conducting a process that was not fair and transparent? 

60 The complainant submits that several factors demonstrate that this process was not fair or transparent.

61 The Middle Management Simulation exercise was used to assess the candidates in this appointment process. Maj. Crawley and the two Assessment Specialists from the PSC Atlantic Personnel Psychology Centre conducted the exercise.  According to the complainant, Maj. Crawley should not have participated in the simulation exercise.

62 The complainant understood that Maj. Crawley had asked the PSC to administer the exercise to ensure fairness and transparency, and that he would not be involved in any of the testing or marking of the exams in the process.  The complainant therefore assumed that Maj. Crawley would not sit on the assessment board and would let the PSC conduct the assessment of the candidates. He testified that when he came to write the test and realized Maj. Crawley was on the board, he almost walked out because, in his view, Maj. Crawley’s presence defeated the whole purpose of having the PSC, as a neutral party, to conduct the assessment.

63 Mr. Hart testified that it is not unusual for a manager to sit on the assessment board since the manager has a direct interest in the outcome. Since Maj. Crawley was responsible for filling this position, according to Mr. Hart, it made sense for him to sit on the board.

64 Maj. Crawley testified that he told the complainant that he would use the services of the Personnel Psychology Centre; however he never told the complainant that he would not sit on the assessment board. Maj. Crawley felt he needed to sit on the assessment board because he was the hiring manager and the person selected would report to him.

65 Ms. Montgomery explained that the Middle Management Simulation exercise is a standardized test that is based on psychometric principles. The test is designed and administered to assess the candidates’ aptitudes in a consistent and fair manner. Candidates are always assessed on a rating scale of 1 (greatly below) to 7 (greatly exceeds). The pass mark is not set by the PSC but by the hiring manager before the test is conducted.

66 Ms. Montgomery testified that the Middle Management Simulation exercise was an appropriate instrument to assess five qualifications in this appointment process given that the Plant Operations Officer’s position is a management position. It was understood that the incumbent would be responsible for the operation of multiple heating plants within Canadian Forces Base Halifax, and would have a full range of budgetary, human resources and operational duties.

67 Ms. Montgomery confirmed that it is not unusual for the hiring manager to sit on the assessment board, and it is even encouraged because the manager is familiar with the position. Ms. Montgomery added that Maj. Crawley received training before acting as the departmental assessor.

68 The five essential qualifications that the board assessed were: (1) communication; (2) human resources management; (3) thinking skills; (4) leadership; and (5) team building.  To pass the exam, candidates had to obtain a minimum of 3/7 in any one area and a minimum of 4/7 for the rest of the exam. According to the results, the assessment board determined that the complainant had three scores of 3/7 and two scores of 4/7. As the complainant did not attain the required minimum scores, he was not considered further in this appointment process.

69 Ms. Montgomery acknowledged that the complainant appeared surprised to see that Maj. Crawley was a member of the assessment board. She added, however, the complainant did not state that he could not continue with the exercise. In her view, the complainant was assessed fairly and in an unbiased way.

70 The Tribunal finds that the complainant has not demonstrated that the process was unfair or lacked transparency because Maj. Crawley participated in the Middle Management Simulation exercise. There is no evidence that Maj. Crawley’s participation was improper or put the complainant in an unfair position.  The complainant has also not demonstrated any flaws in the administration of the Middle Management Simulation exercise.

71 Lastly, the complainant asserts that the process was completed in a short period of time, which indicates it was not fair and transparent. The JOA for this process was posted on November 21, 2012, and the NAPA was issued on December 31, 2012.

72 The complainant did not refer to any legislative or policy requirement that supports his position that a short process cannot be fair and transparent.  No evidence was presented that the assessment board failed to thoroughly conduct his assessment, or placed unreasonable deadlines on candidates.  There is no basis for a finding that the respondent abused its authority by conducting this appointment in a short period of time.

73 Viewed in its entirety, the evidence does not demonstrate that the respondent abused its authority by conducting an appointment process that was unfair or lacked transparency.

Decision

74 For all these reasons, the complaint is dismissed.

Nathalie Daigle
Member

Parties of Record

Tribunal File:

2013-0009

Style of Cause:

Kevin Brennan and the Deputy Minister of National Defence

Hearing:

December 17 and 18, 2013
Halifax, NS

Date of Reasons:

April 14, 2014

APPEARANCES:

For the complainant:

Kevin Brennan

For the respondent:

Allison Sephton

For the Public
Service Commission:

Marc Séguin