FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainants, Susan Healey and Kim McNally, applied and were found qualified in an internal advertised appointment process to staff Regional Communications Officer (RCO) positions at the PM-04 group and level.  After two other candidates were appointed to positions in Kingston, Ontario, the complainants filed their respective complaints.

2 The complainants allege that the respondent, the Chairperson of the Parole Board of Canada (PBC), abused its authority by demonstrating a bias in favour of one of the appointees and against the complainants.  They also allege that the respondent made several serious errors and omissions during the assessment process, which constitute an abuse of authority.

3 The respondent denies the allegations. It asserts that the appointees were selected because they were the right fit for the positions being staffed, and not because  of any bias.  The respondent maintains that there were no errors or omissions in the appointment process.

4 The Public Service Commission (PSC) did not attend the hearing, but presented a written submission on PSC policies and guidelines relating to the issues in this case.  It took no position on the merits.

5 For the reasons set out below, the Public Service Staffing Tribunal (the Tribunal) finds that the complaints are substantiated.  Although the evidence does not support a finding of bias, it establishes that the respondent abused its authority in the implementation of its reference check process. 

Background

6 On June 20, 2011, the respondent posted a Job Opportunity Advertisement (JOA) on Publiservice to staff six RCO positions across Canada and to create a pool of qualified persons for use in staffing similar positions with various linguistic profiles and tenures within the PBC.  Two positions in Kingston, consisting of a vacant position and an anticipatory position, were noted in the poster.

7 Once applicants were initially screened into the appointment process, they proceeded through three further stages of assessment, a written exam, an interview and, finally, reference checks. Candidates who passed the exam and interview stages were asked to provide the names of three referees, one of whom was required to be their current supervisor. 

8 The complainants applied for the Kingston positions. They passed the first two stages and provided the assessment board with the names of referees. Their referees were interviewed by a member of the board.  After the reference questions were marked, the complainants were found to have passed and they were placed in a pool of qualified candidates.

9 On April 3, 2013, the respondent posted a Notification of Appointment or Proposal of Appointment to fill the two Kingston positions.  The appointees were selected from the pool of qualified candidates using the right fit criteria, which the respondent had determined would consist of the personal suitability scores derived from candidate interviews and reference checks.  Theresa Bailey and Cheryl Russell were thus selected, having had the highest personal suitability scores.

10 On April 3, 2013, the complainants filed a complaint with the Tribunal under s. 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

11 The complainants had originally also made allegations of discrimination and personal favouritism against the respondent.  At the hearing, the complainants abandoned these allegations.

Issues

12 The Tribunal must determine the following issues:

1. Was the appointment process biased in favour of the appointees and against the complainants?
2. Were there serious errors or omissions in the respondent’s assessment of the candidates for the “right fit”?

Analysis

13 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.  Errors and omissions in the appointment process may constitute an abuse of authority.  Whether an error or omission constitutes an abuse of authority depends on its nature and seriousness. As noted in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 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.”  

14 The complainant has the burden to prove, on a balance of probabilities, that there was an abuse of authority in relation to a complaint under s. 77 of the PSEA. See Tibbs at paras. 49 to 55.

Issue I:   Was the appointment process biased against the complainants and in favour of the appointees?

15 In Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10, the Tribunal held 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.  As the Tribunal went on to note in Steeves v. Deputy Minister of National Defence, 2011 PSST 9 at para. 15, where bias in the context of an appointment is alleged, the following test should apply:

Would a reasonably informed bystander looking at the appointment process reasonably perceive bias on the part of one or more of the persons involved in the appointment decisions?  

16 The person who is alleging bias or a reasonable apprehension of bias has the burden of demonstrating its existence. Bias or the apprehension of bias must be real, probable or reasonably obvious and mere suspicions, speculations or possibilities of bias are not sufficient. See Steeves at para. 16.

17 Although, as mentioned earlier, the complainants abandoned their allegations of personal favouritism at the hearing, they are arguing, along somewhat similar lines, that the respondent demonstrated bias in favour of at least one of the appointees, Ms. Bailey, as well as a bias against them.

18 The complainants noted that although they both had listed becoming an RCO as an employment objective in their career learning plans, and had been placed in pools of qualified candidates for RCO positions in previous appointment processes, neither was given the same acting opportunities as Ms. Bailey.  They claim that in the years prior to this appointment process the respondent provided Ms. Bailey with the majority of the acting appointments for RCO positions in the Kingston office. The complainants allege furthermore that both members of the assessment board had worked with and supervised Ms. Bailey, and were biased in her favour.  The complainants argue that the manner in which this appointment process was conducted is yet another example of the non-transparent and preferential treatment that the PSC had criticized in its audit of the PBC’s staffing practices for the period April 1, 2008 – March 31, 2010.

19 Ms. McNally described her career progression from the clerical position she held at the start of her career with the PBC in 1994 (which was named the National Parole Board at the time), to Case Review Officer and then to Hearing Officer, her current position.  She testified that she had indicated her desire to be an RCO since 2000.  An RCO works with victims of crime and provides information to them about the offender, as well as the timing and procedure of parole hearings.  RCOs also advise and assist victims who wish to prepare and deliver a victim impact statement at a parole hearing.

20 According to Ms. McNally, Ms. Bailey was appointed as an RCO on an acting basis in 2008.  Although Ms. McNally asked management why she was not considered for that position, she did not obtain a response.  Shortly thereafter, she successfully applied to the Correctional Service of Canada (CSC) for a Victim Services Officer position, which is comparable to an RCO.  She was appointed to a 10 month acting position that commenced in August 2008.  While employed at CSC, her manager at the PBC notified employees that acting appointments to RCO positions would be made available to all PBC Hearing Officers.

21 Ms. McNally returned to the PBC in July 2009 and was appointed to an acting RCO position from July to October 2009.  She also applied in an advertised appointment process for indeterminate RCO positions immediately after returning to the PBC.  She qualified in that process and was placed in a pool; however, two Hearing Officers who had acted as RCOs while she was at CSC were appointed to the indeterminate positions.

22 Although Ms. McNally received the above-noted acting appointment in 2009, she points out that Ms. Bailey had received three such appointments by 2010. Two of these appointments were non-advertised and involved terms that were less than four months.  The third appointment was from an advertised process to which Ms. McNally had applied and been found qualified. 

23 Ms. McNally expressed her concerns about the appointments to the respondent.  She felt frustrated because she believed that others were being groomed for a position that she had wanted for years.  The response she received was an email from a senior official who referred her to online materials, and advised her to discuss her learning plan with her manager at their semi-annual meetings.

24 It should be noted, however, that in August 2011, Ms. McNally went on medical leave for approximately one year.  She was therefore unavailable for any acting appointments during her absence.  When she returned to her Hearing Officer position, she could not perform all of her duties due to her medical condition.  She wrote to a senior manager and had discussions with her regional director to canvass other work options that would be a better fit for her condition.

25 She also spoke with Albert Montagnese, who was then the Regional Manager, Training, and who would later be one of the assessment board members in the appointment process at issue in this case.  She learned from Mr. Montagnese that while she was on medical leave, he had appointed Ms. Bailey to act as an RCO for a 10 month term ending in 2012.  When Ms. McNally asked whether this action was in accordance with the recommendations made by the PSC following its PBC audit, she claims Mr. Montagnese said that he was doing so “because he can.”

26 Ms. Healey testified that she began working with the PBC 18 years ago.  In addition, she had 14 years of prior service with the Canada Employment Centre.  She had applied for positions as an RCO in 2005, 2009, 2011 and 2012.  Although she qualified as an RCO during the 2009 appointment process, she was the only person in the eight member pool of qualified candidates who did not receive an acting appointment.  She also testified that a casual employee was hired as an RCO in 2011, at the same time as she was still available to act in the position. 

27 Ms. Healey stated that she received RCO training in 2008 with Ms. Bailey.  Despite her expressions of interest in her learning plan and during her performance appraisals, and notwithstanding her prior experience at Canada Employment Centre and her acting appointment as a Victim Service Officer at CSC in 2010, she did not receive any acting RCO appointments.   She acknowledges, however, that she had acted as a Case Review Officer for the first six months of 2010, after which she had her acting appointment to CSC.  Following her promotion to an indeterminate Case Review Officer position in 2011, she received a two month acting RCO appointment in November 2012.

28 Ms Healey alleges that she was assessed differently than the successful candidates.  She testified that she compared her answers on the written examination conducted during this appointment process to those of the appointees.  She felt that Ms. Bailey received higher marks for similar answers.  She also felt that the assessment board members’ comments did not accurately reflect the answers she had given for some questions.  She did not, however, lead any evidence demonstrating or identifying these alleged discrepancies. 

29 The respondent called Mr. Montagnese as a witness to address the allegations of bias in the appointment process.   He testified that he worked at the PBC following 18 years of employment at the Department of Veterans Affairs.  His duties at the PBC included training newly appointed members, being the PBC’s media spokesperson and managing its regional communications.  During his tenure, six RCO positions reported to him.  Mr. Montagnese stated that he had been involved in staffing for 20 years and was a member of the assessment board in this appointment process.  He also has experience in making acting appointments.

30 Mr. Montagnese stated that the appointment process was initiated to fill existing and anticipated vacancies. His counterparts in Western Canada, Quebec and the Atlantic Region had similar staffing needs.  They combined their efforts and consulted with Human Resources to create a Statement of Merit Criteria (SMC) and a JOA.  The SMC was completed before the JOA was finalized.  They also developed a rating guide and determined the pass marks before the JOA was posted. 

31 In the Ontario region, a decision was taken to create a pool of qualified candidates from which appointments would be made.  Mr. Montagnese chaired the assessment board in the region.  Karen Thomson was the other member.  Mr. Montagnese stated that the assessment board used the PSC’s Assessment, Selection and Appointment Guide in structuring this appointment process.  In determining the right fit criteria, he consulted with Human Resources managers at the PBC’s National Office in Ottawa.  According to Mr. Montagnese, candidates were marked in accordance with a rating guide.  Together they screened the applicants, administered and marked the written exam that assessed knowledge and writing ability, and interviewed the candidates who passed the written exam.  The interviews were to assess personal suitability.  The candidates who passed the interview were further assessed for personal suitability by reference checks, which among other things, were used to verify information obtained from the candidates during the interview. 

32 He felt that in terms of knowledge and ability they had a “fairly competent” group of qualified candidates, comprised of “good solid experienced persons with the abilities needed.”  He added that the persons to be selected had to have strong personal suitability skills. Thus, the board decided that the candidates with the highest marks in the personal suitability category would be selected as the right fit for the position.  Ms. Bailey and Ms. Russell received the highest scores on personal suitability and were therefore selected.

33 Mr. Montagnese denies that there was any bias in favour of Ms. Bailey with respect to her acting appointments.  He stated that when he joined the PBC in September 2010, Ms. Bailey was already acting in an HRO position.  In 2011, he signed the extension of her acting appointment and also approved her June 2012 to April 2013 acting appointment, which occurred following an advertised appointment process. Mr. Montagnese stated that he supervised Ms. Bailey when he assumed his position at the PBC, but added that he did not socialize with her outside of work. 

34 As for Ms. Russell, he met her when she applied for the process at issue in this case.  He described his relationship with Ms. McNally and Ms. Healey as collegial and professional. 

35 Ms. Thomson, a Senior Case Review Officer, testified about her relationship with Ms. Bailey.  She stated that when she began working at the PBC in 2001, Ms. Bailey was working as a Regional Communications Assistant.  Ms. Thomson therefore began supervising her. She noted that they worked together for four years until Ms. Bailey became a Case Review Officer and moved on.  Ms. Thomson described their work relationship as collegial.  They attended office functions together but did not socialize outside of work.  Ms. Thomson stated that she met Ms. Russell for the first time at the interview for this appointment process. 

36 Ms. Thomson first met Ms. Healey, who was then a Hearing Officer, when she joined the office.  She added that in the period following this appointment process, she has not worked in the same section as Ms. Healey.  In relation to Ms. McNally, Ms. Thomson stated that they were colleagues when Ms. McNally acted as an RCO.  Ms. Thomson described her relationship with Ms. Healey and Ms. McNally as collegial but stated that they have no social contact outside of the office. 

37 The complainants point to the fact that both members of the assessment board had supervised Ms. Bailey, had given her most of the acting appointments prior to this appointment process and had ignored the complainants’ requests for acting appointments.  They submit that as a consequence of these acting appointments, Ms. Bailey acquired knowledge that gave her an advantage in this appointment process. The complainants also assert that because of their prior contacts with Ms. Bailey, the assessment board members could not be free of bias whether consciously or unconsciously.  

38 The Tribunal has carefully reviewed the evidence that was advanced to support these assertions and finds that the complainants have not established that there was actual bias or a reasonable apprehension of bias in this appointment process. 

39 With respect to Ms. Bailey’s third acting appointment, which was for over four months and subject to recourse, neither of the complainants filed complaints.  There were other PBC employees, including Ms. McNally, who received acting RCO appointments during the relevant period.  Some of them were appointed to indeterminate positions before the appointment of Ms. Bailey. Moreover, the mere fact that an appointee received more acting or training opportunities than other candidates does not necessarily establish that the appointee gained an unfair advantage constituting favourable bias or personal favouritism. See, for example, Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7.  Furthermore, there was no evidence to contradict the testimony of Mr. Montagnese and Ms. Thomson who denied having a personal relationship with Ms. Bailey.

40 The Tribunal finds that this evidence is insufficient to establish that there was a reasonable apprehension of bias in favour of Ms. Bailey or Ms. Russell.   In addition, no evidence was adduced that would in any way give rise to a reasonable apprehension of bias against the complainants.  Based on the evidence adduced at the hearing, the Tribunal concludes that an informed bystander looking at the appointment process could not reasonably perceive bias or the apprehension of bias on the part of one or more of the individuals involved in this appointment process.  

Issue II:   Were there serious errors or omissions in the respondent’s assessment of the candidates for the “right fit”?

41  The complainants submit that there were serious errors in the scoring of the references in this assessment process, noting that the decision on who would be the right fit for the appointments was based on the scores of six personal suitability factors that were assessed by combining the interview and reference scores.  The reference scores were therefore significant in determining who would be appointed in this process. 

42 As noted in Stamp v. Commissioner of the Correctional Service of Canada, 2014 PSST 4, the Tribunal’s role is not to reassess the complainant but rather to examine whether or not there was any impropriety in the assessment process.  It may find abuse of authority where the evidence establishes, for example, that the process is flawed.  If that occurs, the outcome cannot be considered reasonable or fair.  See Bowman v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 12 (application for judicial review dismissed: Attorney General of Canada v. Grundison, 2009 FC 212); Jacobsen v. Deputy Minister of Environment Canada, 2009 PSST 8.

43 The complainants maintain that there were several errors associated with the reference checks, which were serious enough to constitute an abuse of authority.  They assert that their reference checks were not conducted according to the PSC’s Structured Reference Checking Guide.  For example, they claim that Ms. Thomson, who alone had conducted all but one of the reference checks, had not received sufficient training.  They also submit that during the reference checks, Ms. Thomson failed to ask the referees verification questions and check the accuracy of negative responses.  She also did not ensure that the responses for questions related to the competency being assessed by the question.

44 The complainants also contend that no information was given to guide the assessment board members and provide a standard against which a particular answer from the reference could be scored. They point to the rating guide, which referred the board members to its Annex 1 for scoring guidance.  The complainants argue that Annex 1 only provided guidance to assess a candidate’s responses to written or oral questions during the interview stage.  It did not contain a list of behavioural indicators for use by the assessment board in marking the referees’ responses.

45 The complainants also take issue with the decision by Ms. Thomson to interview Ms. Healey’s supervisor even though she had only been her supervisor for six weeks.

46 In her testimony, Ms. McNally identified some important inaccuracies in the information collected during the reference check from her supervisor, Laurie Heffernan, a Senior Case Review Officer. For example, although Ms. Heffernan’s notes say that Ms. McNally had not taken parole officer orientation, she had, in fact, received that training.  According to Ms. McNally, Ms. Heffernan knew or ought to have known this fact because Ms. Heffernan had noted it in Ms. McNally’s 2011 Performance Appraisal Report that she had prepared in March 2012.

47 Ms. Heffernan also reportedly commented on Ms. McNally’s lack of initiative.   However, according to Ms. McNally, at the time of the reference interview, Ms. Heffernan was aware of several letters of commendation about Ms. McNally’s work with PBC board members and her volunteer work around the office. These letters originated from PBC members, who applauded the assistance she provided them, and from other colleagues concerning her work with the United Way campaign.

48 Ms. McNally also pointed out that contextual information regarding her medical condition was not recorded in the notes of Ms. Heffernan’s interview and its omission gave a misleading impression of her abilities.  Her ability to assist her colleagues when they were overloaded with work was hindered by her physical limitations, but she endeavoured to take on as many other tasks as she was able.  Ms. McNally also took issue with the reported comments about her “liking nice things,” and was baffled by remarks that implied that she was lazy and not doing her job. 

49 Ms. Thomson was questioned about her reference interview with Sharon Hanna, who was one of Ms. Bailey’s references.  Ms. Thomson acknowledged that Ms. Hanna, in her response to questions on judgment, flexibility, and team spirit, did not provide examples, as set out in the questions. Ms. Thomson awarded marks ranging from 28/30 to 30/30 for each of those responses. She also acknowledged that her notes did not indicate whether she prompted Ms. Hanna to provide examples during the reference interview.

50 When questioned about the reference check for Ms. Healey, Ms. Thomson acknowledged that the referees provided examples in only some of their answers to questions that called for examples.  Ms. Thomson added that during her questioning of Ms. Heffernan, she does not recall asking any follow-up questions and had no record of whether she had prompted the referee.

51 Ms. Heffernan recalled in her testimony that Ms. Thomson approached her, advised her that she was a reference for Ms. McNally and interviewed her that same day.  She did not receive any materials before the meeting nor did she do anything to prepare for the interview questions. She said that she did not recall Ms. Thomson asking her any follow-up questions during the interview. 

52 Ms. Heffernan testified that she had acted as a reference four or five times prior to this process.  She reviewed Ms. Thomson’s notes and agreed that they captured their conversation.  She did not recall, however, having made a comment about Ms. McNally “liking nice things.”  She also said that she was aware of the favourable comments Ms. McNally had received and had taken those into account in answering the questions posed by Ms. Thomson.

53 Ms. Thomson testified that she used the rating guide to mark the written exams and the interviews.  She noted that the rating guide contained annexes that included a scale for assessing overall communications and she used the guide to keep track of which competency or ability was being assessed.  After the interview questions were asked, each board member assessed the responses and met to finalize the score.  For the reference checks she used her notes to score the responses by referring to Annex 1 at the back of the rating guide. 

54 Ms. Thomson acknowledged that she was participating for the first time as a member of an assessment board.  She could not confirm if the procedure she used during the reference checks complied with the PSC’s Assessment Selection and Appointment Guidelines.  Ms. Thomson stated that Mr. Montagnese had provided some instruction to her for this assessment process, but she had received no prior training.  She stated that during the reference checks, she read the questions to the referees as written and recorded the responses.  She did not recall asking follow-up questions.

55 As noted earlier, candidates were required to list their current supervisor as one of their references.  Heather Tackaberry was Ms. Healey’s newly appointed supervisor when she was asked to provide references.  The assessors had a list of questions for all references.  In reply to Ms. Thomson’s first reference question, relating to Ms. Healey’s judgment, Ms. Tackaberry said that it was very difficult for her to answer because she had only supervised Ms. Healey for a few weeks. Ms. Healey argues that Ms. Thomson should not have continued to question Ms. Tackaberry once she learned this, and should have ended the interview, rather than obtaining some negative remarks in answer to further questions relating to Ms. Healey’s flexibility and her ability to work as a member of a team.

56 Ms. Thomson claims that when she learned of the short period that Ms. Tackaberry had been supervising Ms. Healey, she decided not to take into account any of the answers from her when scoring Ms. Healey’s references.  When asked why she had nonetheless noted Ms. Tackaberry’s answers to the questions, she replied that she recorded everything that was said to her.

Analysis and Findings

57 Section 36 of the PSEAconfers discretionary authority to delegated managers in the selection and use of assessment methods. However, this authority is not absolute.  Thus, the Tribunal may find that there is abuse of authority if, for example, it is established that the assessment method has a fundamental flaw.  Assessment methods that do not assess qualifications or are unreasonable, discriminatory or produce a result that is unfair can constitute an abuse of authority. See, for example, Ouellet v. President of the Canadian International Development Agency, 2009PSST0026.

58  The Tribunal finds that there were serious errors in the methods used to score the reference checks, which affected the selection.  These flaws contributed to a result that is unfair to both complainants because these errors affected the candidates’ personal suitability scores, which in turn determined the outcome of the appointment process.

59 These serious errors included the fact that referees were given little advance notice of their interviews and no instructions on what information was being sought.   Thus, Ms. Heffernan was invited to the interview without prior notice and without any preparation.  During the interview, her comments contained factual errors concerning Ms. McNally.  If instructions had been given to her in advance of the interview, she may have provided a better-informed response.

60 An additional flaw in the reference check process was the absence of any definitions of the qualifications being assessed or the behavioural indicators against which the referees’ responses were to be assessed. The rating scale in Annex 1 that board members used to mark the referees’ responses set out ratings for the candidates’ responses in their own interview.  It did not appear to apply to the references. The rating guide did not disclose suggested responses for referees nor set out behavioural indices against which the referees’ answers were to be assessed.

61 Since this was Ms. Thomson’s first participation on an assessment board, having received limited training, and given the variety of answers that could respond to the questions she was asking, the rating guide should have set out expected responses. Mr. Montagnese acknowledged that the rating guide was silent about the appropriate answers to be obtained from the references.  Although it indicated a maximum mark for each reference question, it did not contain any behavioural or other information relating to that question to substantiate the scores awarded to a referee’s answer.  Since several referees were consulted for the various candidates there was no basis to conclude, with reasonable certainty, that the referees had the same understanding of the competency that was being assessed by the questions.  Accordingly, the failure to ensure that each referee received the same instructions, coupled with the failure to identify the behavioural indices associated with each competency contributed to inconsistency in the evaluation of their responses. 

62 Furthermore, a review of the reference questions and the notes taken by both members of the assessment board indicates that there were also inconsistencies in administering the reference questionnaires.  Ms. Thomson assigned marks reserved for “excellent answers” to responses from a referee even though examples were not provided. For some answers in which a referee did not provide examples, the assessment board in effect adopted the opinion of the referee in assigning the mark.  There was no further inquiry to ascertain the factual basis upon which that opinion was made.  Ms. Thomson testified that she recorded all that was said and did not recall asking follow-up questions.  The evidence disclosed that the board did not ensure that the reference questions they asked and the responses they recorded were related to the competency being assessed in a given question.  Marks were awarded for answers that did not appear to respond to the questions.  It appears that Ms. Thomson merely adopted that referee’s opinions. In so doing, she refused to exercise her discretion and fettered her ability to assess the candidates with an open mind.  Where the Tribunal determines that an assessment board has fettered its discretion in this way, it may find that the assessment board abused its authority.  See Bowman at para. 127, Poirier v. Deputy Minister of Veterans Affairs 2011 PSST 3.

63 The failure to request examples to support a referee’s opinion, as recommended by the PSC’s Structured Reference Checking Guide, promoted inconsistency in assessing the candidates.  These guidelines encourage linking the evaluation of past accomplishments to the merit criteria being assessed and obtaining quality information by asking for concrete examples of the person’s past behaviours rather than relying merely on the referee’s opinion. Although the respondent is not explicitly bound by the PSEA or its regulations to follow these guidelines, the respondent’s failure to adhere to them contributed to inconsistent scoring on an important segment of this assessment process.

64 In addition, the fact references for Ms. Healey were collected from Ms. Tackaberry, who had only supervised her for six weeks, is also problematic.  Although Ms. Thomson says that she did not rely on Ms. Tackaberry’s answers, she nonetheless recorded all of the answers.  Even though Ms. Thomson was the sole person to have interviewed Ms. Tackaberry, the assessment of the candidates’ personal suitability for the positions was made by consensus with Mr. Montagnese.  There is no evidence indicating whether he completely discounted Ms. Tackaberry’s reference or whether he considered Ms. Thomson’s notes from that interview in his assessment of Ms. Healey’s personal suitability skills.  As the Tribunal held in Ostermann v. Deputy Minister of Human Resources and Skills Development Canada, 2012 PSST 28 at para. 47, relying on a reference from a supervisor who had only supervised an employee for a short period of time is an error that may be serious enough to constitute an abuse of authority, particularly when coupled with other errors and omissions in the process.  

65   The selection of the “right fit” candidates was determined solely by their scores in the personal suitability area, which were assessed by combining the interview marks with the marks on the reference.  Since the interviews and the reference check were awarded equal weight, these serious errors and omissions in administering the reference portion of the candidates’ assessments had such a significant impact on the outcome of this assessment process that it rendered the process unfair.

66 One outcome of the errors and omissions in this process is that there was a failure to take steps to obtain complete and reliable information that was available for the evaluation of the complainants and the appointees. The failure to take these steps resulted in the complainant being evaluated based on inadequate or sparse information. In turn, this created an unreliable foundation for a decision about the complainants’ merit. These are serious errors that constitute an abuse of authority. See Morgenstern v. Commissioner of the Correctional Service of Canada, 2010 PSST 18 at paras. 30-33.

67 In conclusion, the Tribunal finds that there were serious errors and omissions in the manner in which this appointment process was implemented, resulting in an unreasonable outcome.  The Tribunal finds that these serious errors and omissions amount to an abuse of authority.

Decision

68 For all these reasons, the Tribunal finds that the complaints are substantiated.  

Order

69 There were serious errors and omissions in the assessments of personal suitability, upon which the selection of the appointees was based.  The outcome cannot therefore be considered fair or reasonable.  While there is no evidence that the appointees were not qualified for appointment to this position, the Tribunal finds that the appropriate corrective measure is to revoke Ms. Bailey’s and Ms. Russell’s appointments, set aside the results from the reference checks and have new reference checks properly performed.  Once these measures are complete the results may be re-calculated, and the process completed.

70 Therefore, pursuant to its authority under s. 81(1) of the PSEA, the Tribunal orders the respondent to revoke the appointments of Theresa Bailey and Cheryl Russell within 60 days of this decision and complete the assessment process in the manner described above. 

Eugene F. Williams
Member

Parties of Record

Tribunal File:

2013-0139/0140

Style of Cause:

Susan Healey and Kim McNally and the Chairperson of the Parole Board of Canada

Hearing:

April 29 and 30, 2014
Ottawa, Ontario

Date of Reasons:

August 26, 2014

APPEARANCES:

For the complainant:

William Bailey

For the respondent:

Vanessa Reshitnyk

For the Public
Service Commission:

Luc Savard
by written submissions