FPSLREB Decisions

Reasons for Decision

Introduction

1 Lori Pynn, the complainant, applied in an internal advertised appointment process for several Parole Officer Supervisor positions within the Ontario Region at the WP-05 group and level.  She was eliminated from the appointment process following the interview for failing to meet the essential qualification ability to supervise staff effectively.

2 The complainant alleges that the respondent, the Commissioner of the Correctional Service of Canada (CSC), abused its authority in a number of ways. Her concerns can be grouped under three main allegations. First, she claims that the appointment process lacked transparency. This concern relates to the results of the written exam and the decision to screen some candidates back into the process. Second, the complainant alleges that the assessment method used to assess her ability to supervise staff effectively was fundamentally flawed because the assessment board provided her with ambiguous instructions at the interview stage and failed to prompt her during the interview. Third, she contends that there was bias shown against her.

3 The respondent denies the allegations of abuse of authority. It asserts that the complainant was not appointed to the position because she failed to meet the essential qualification ability to supervise staff effectively. The respondent submits that it properly assessed all candidates through the use of appropriate assessment tools, and the persons appointed were found qualified.  Thus, the appointments were based on merit. The respondent further submits that the complainant has failed to provide sufficient evidence to substantiate any of her allegations and, consequently, has not demonstrated that the respondent abused its authority in this 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 complaints are dismissed.  The Public Service Staffing Tribunal (the Tribunal) finds that the complainant has not proven that the respondent abused its authority in either the appointment process generally, or in the manner in which her candidacy was assessed.  

Background

6 In June 2011, the respondent posted a Job Opportunity Advertisement on Publiservice to create a pool of qualified candidates to staff various Parole Officer Supervisor positions in Ontario when those positions became available.

7 Following preliminary screening of applications, a total of 55 candidates were initially screened into the appointment process. These candidates were subsequently assessed through a combination of written exam, interview and reference checks. There were 14 candidates placed in the WP-05 pool of qualified candidates. 

8 The respondent used this pool to make an indeterminate appointment in Peterborough and an acting appointment in Toronto. The respondent posted notices of these two appointments on Publiservice on March 20 and 21, 2013.  

9 On March 25, 2013, the complainant filed complaints with the Tribunal under s. 77 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA) concerning these two appointments. The Tribunal consolidated the complaints for the purpose of this hearing.

10 At the hearing, the complainant abandoned her allegation of personal favouritism, and there was no evidence led to support that claim. In addition, the complainant did not allege, nor did she lead any evidence to suggest, that the two persons appointed were unqualified.  

Issues

11 The Tribunal must determine whether the respondent abused its authority in the application of merit in the appointment process. In so doing, the Tribunal must answer the following questions:

1. Did the respondent commit a serious error concerning the results of the written exam?
2. Did the respondent commit a serious error or otherwise act improperly in its assessment of the complainant at the interview stage of the appointment process?
3. Did the respondent show bias against the complainant in this appointment process?

Analysis

12 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 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.”  

13 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, for example, Tibbs at paras. 49 to 55.

Issue I:   Did the respondent commit a serious error concerning the results of the written exam?

14 The complainant alleges that the circumstances surrounding the written exam and its aftermath, which will be set out below, amount to an abuse of authority.

15 Chantal Guillemette is the Area Director for the Sudbury Parole Office. She was the chair of the assessment board (board).  Ms. Guillemette acted as chair on three of the five appointment processes in which she has participated.  She stated that she completed the staffing course for managers in 2008, which covered the role of a board member.  She has received sub-delegated authority and has provided guidance to fellow board members.

16 Ms. Guillemette testified that the Statement of Merit Criteria (SMC) for the Parole Officer Supervisor position is a generic SMC created by National Headquarters.  The SMC consisted of three knowledge and four ability qualifications.  The knowledge qualifications were assessed by a written exam. 

17 Ms. Guillemette stated that the board first decided to screen in for further consideration the candidates with the top 25 scores on the knowledge exam.  The board’s assessment of the organizational needs, including the fact that there were few Parole Officer Supervisor positions in the Ontario region, prompted the board to limit the number of candidates moving forward. This decision meant that candidates who obtained a passing grade (19/33) on the written exam, but were not part of the top 25 scores, would not be considered further. The scoring sheet for the written exam, which was entered as an exhibit, stated that the candidate must be part of the top 25 scores to be considered further. The top 25 candidates, which included the complainant, earned marks of 25/33 or higher.  

18 Ms. Guillemette stated that after the board submitted the exam marks to Human Resources (HR) staffing personnel, she was asked by HR to review the decision to limit the number of candidates screened in.  According to Ms. Guillemette, HR thought that the board had randomly picked the top 25.  The board reviewed its decision and subsequently decided to follow HR’s advice and permit all candidates who had passed the knowledge exam to be screened back into the appointment process. This change permitted eight additional candidates who had passed the knowledge exam to be considered for the next stage of the appointment process, namely the quality control phase. Two of those candidates passed the quality control phase and were interviewed.  One of those candidates was later appointed to a position.

19 At issue is whether the decision to include the eight candidates is a serious error in the appointment process.  The complainant argues that the assessment criteria on the knowledge exam were changed after the candidates had completed the exam and without informing candidates of this change. The complainant relies on Burke v. Deputy Minister of National Defence 2009 PSST 0003, and Chiasson v. Deputy Minister of Canadian Heritage, 2008 PSST 0027.

20 In Burke, the Tribunal had to determine whether the respondent abused its authority by, among other things, amending the SMC after the assessment of candidates. In Chiasson, the Tribunal had to decide whether the respondent abused its authority in changing the instructions for a written exam without ensuring that the complainant had, in fact, received the new instructions.  These two cases are distinguishable on their facts from the respondent’s actions in this case.

21 In Burke, there was a significant change to the essential qualifications and carelessness in applying the criteria to assess candidates after the appointment process began.  In Chiasson, the complainant was not assessed on the same basis as other candidates.  The evidence before the Tribunal in this hearing reveals that all candidates were assessed in the same manner.  There were no changes to the essential qualifications nor were there any changes made to the methods by which candidates were assessed.  The board did not change the passing mark.  It did, however, correct what was perceived to be a random or arbitrary decision to screen out candidates who had successfully achieved a passing mark on the knowledge exam.

22 Section 36 of the PSEA confers 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.

23 The discretion afforded to assessment boards is equally not absolute. An assessment board must exercise its discretion in accordance with the nature and purpose of the PSEA.  See Bowman v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 0012 at paras. 121-123. Based on the evidence presented, the Tribunal finds that the board in this case exercised its discretion appropriately when it decided to screen back in candidates who had achieved a pass mark on the knowledge exam. 

24 The board’s decision concerning the results of the written exam did not involve any change in the objective criteria for determining who passed the exams and did not have an impact on the complainant’s elimination from the process. The Tribunal finds that the decision was motivated by concerns related to fairness to candidates as raised by HR.  The discretion exercised by the board to consider for further assessment the candidates who met the pass mark was not linked to an improper intent, favouritism or bias.  Each candidate was assigned a number for use on the written exam, and there was no evidence presented at the hearing that, at the time that the exams were marked, the board knew who the respective candidates were. These circumstances did not produce an unfair result.

25 The Tribunal agrees with the complainant that there was a lack of transparency concerning the results of the written exam. Candidates who had initially been informed by email that they had been screened out were subsequently informed by email that they were screened back in. No explanation was provided to any of the candidates as to the reasons for this decision. The Tribunal finds that the respondent should have been transparent by informing all candidates and providing an explanation for its decision. However, the Tribunal further finds that this lack of transparency was not a serious enough error or omission as to reach the level of an abuse of authority.  See, for example, Morris v. Commissioner of Correctional Service of Canada, 2009 PSST 9 at para. 100.

26 The Tribunal concludes that the respondent did not commit a serious error when the board decided to screen back into the appointment process those candidates who passed the knowledge exam.

Issue II:       Did the respondent commit a serious error or otherwise act improperly in its assessment of the complainant at the interview stage of the appointment process?

27 The complainant submits that the board’s instructions during the interview portion were ambiguous, and that the board failed to obtain and include all relevant information from her during the interview. She also alleges that there was a lack of consistency in both the composition of the assessment board and the assessment of candidates.

28 The Tribunal has held in numerous decisions that its role is not to reassess candidates or redo the appointment process. The PSEA does not authorize the Tribunal to assess candidates for appointment.  This authority is granted to the PSC under s. 30(2)(a) of the PSEA and may be delegated in accordance with s. 15(1) of the PSEA. The Tribunal may, however, determine whether the evidence demonstrates, on a balance of probabilities, that there was an abuse of authority in the assessment that was done. See, for example, Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 42-46.

The submission that the assessment board’s instructions during the interview were ambiguous

29 The complainant testified that she was interviewed on July 11, 2012, by an assessment board comprised of Ms. Guillemette and Anne Marie Gravel. She received written instructions outlining the interview procedures. There were three questions.  Candidates were given one hour before the interview to write a memo in response to question 2, and to prepare oral responses to questions one and three.

30 On page 2 of the “Candidate Instructions,” candidates were informed that three abilities were being assessed during the interview, namely: the ability to supervise staff effectively; the ability to communicate effectively, both orally and in writing; and, the ability to define and analyze problems, identify options and develop appropriate plans of action.  The instructions explained that candidates “will have 45 minutes to write a memo for question #2 which will assess your ability to communicate in writing.”

31 These instructions were followed by three interview questions.  Each question assessed a different ability.  The ability that was being tested was clearly set out above each question and the total mark to be allocated for that question and the pass mark for each question was stated.

32 Question 1 indicated that the verbal response was designed to assess the ability to supervise staff effectively.  Question 2 was designed to assess the candidate’s ability to communicate in writing, and question 3 was to assess the ability to define and analyze problems, identify options and develop appropriate action plans.

33 The complainant stated that when she left the interview she felt positive about her answers because she thought that her oral response was a good overview of the situation and felt that whatever she had not developed orally was captured in her written memo.  Since the oral question and the written exercise were based on the same fact situation, she considered that the questions were linked. The interview instructions indicated that the written exercise, question 2, sought to assess the ability to communicate effectively both orally and in writing and, since no one told her that the memo would not be considered in the marking of question 1, she believed that her written response to question 2 would be considered along with her oral responses to question 1.  In her submission, the board created an overlap by using the same situation for questions 1 and 2. 

34 The complainant asserts that the respondent’s interpretation of the instructions is wrong. There was no explicit instruction that the answer to question 2 would not be considered as an answer to question 1.  Therefore, she submits that the assessment process is ambiguous and lacks clear explanations of expectations.  

35 Both members of the board, Ms. Guillemette and Ms. Gravel, testified that they found the candidate instructions and the interview procedures to be clear.  Ms. Guillemette stated that she participated in 12 interviews and there were no verbal instructions provided to candidates to add to the written information. Detailed instructions were provided to ensure that candidates understood the procedures.  Ms. Guillemette took notes during the interview to record what the candidates said and used them in assessing the candidates’ answers according to the rating guide.

36 According to Ms. Guillemette, board members marked the interview and then marked the respective memorandum prepared by the candidate.  Board members reviewed each candidate’s responses and marked them in accordance with the indicators contained in the rating guide.

37 The instructions provided information to candidates, which clearly set out how the interviews were being conducted.  In straightforward terms, the instructions described what ability was being assessed with each question.  Each question had its own separate objective and these objectives did not overlap. Three abilities were being assessed by three questions.  Although one fact situation was used as the platform for the first two questions, to properly answer each of the questions required different considerations.

38 The rating guide for question 1 focused on the candidate’s actions in response to a situation, by requiring the candidate to describe the actions he or she would take to address the situation. The second question assessed the candidate’s ability to write clearly, logically and concisely, by focusing on the candidate’s written skills and not on the steps the candidate would take to manage the situation set out in question 1.  Although both questions are based on the situation set out in question 1, these questions are designed to assess completely different abilities.

39 The Tribunal finds that the instructions were clear and unambiguous.  Those instructions informed each candidate of what qualifications were being assessed by the individual questions.  There were no overlaps as the instruction for question 2 made it clear that its focus was on the candidate’s ability to communicate in writing. The instructions were clear; they did not suggest that the contents of the memorandum could or would be used to bolster the oral response to question 1.  A reading of the instructions for each question leaves no doubt about what was being assessed and how it was being assessed. There is no basis for assuming otherwise.  Accordingly, this ground of complaint is not substantiated.

The submission that the board failed to obtain and include all relevant information from the complainant during the interview

40 The complainant alleges that the board did not consider relevant information she provided in her answer to question 2 when it gave her a failing mark for question 1.  That relevant information, included an elaboration of her oral response and “additional details around topics discussed in the oral interview section of the assessment.”  The complainant asserts that the board’s failure to include this information in assessing candidates led to her disqualification, particularly in light of what she considered to be confusing instructions about whether the answer to question 2 would be used in marking question 1. 

41 The complainant points to the board’s failure to prompt her for additional information during the interview as another example of the board’s shortcomings.  The complainant notes that the board was not satisfied with her oral response to question 1 because she did not elaborate or provide examples in her answer.

42 Ms. Guillemette stated that at the interview candidates were asked to read the instructions and to sign at the bottom if they understood the instructions.  She explained that the board wanted to ensure that candidates understood the instructions. The instructions with the complainant’s signature were tendered as evidence at the hearing.

43 Ms. Guillemette noted that she consulted with the three other board members and HR about the interview questions for candidates and about how all members of the board would conduct the interviews. She stated that the board used an “Adjectival scale” containing five categories ranging from excellent to unsatisfactory and a list of behaviours, abilities and skills against which they evaluated the candidates’ responses.  She noted that an excellent answer would show how the candidate addressed the issues and provided examples of what they would do as a Parole Officer Supervisor.  A poor or unsatisfactory answer would not rate a passing score of 6/10 on the rating guide.

44  Ms. Guillemette took part in 12 interviews and stated that all the board members conducted the interviews in the same manner and consistently applied the assessment methods and tools.  Her testimony on this point was not contradicted.

45 Ms. Guillemette’s notes from the complainant’s interview stated that her answers were acceptable but “lacked ability to coordinate and manage work activities for staff on a daily basis and delegation.  Responses were weak in the area of ongoing monitoring, follow-up.”

46 Ms. Guillemette also stated that the board was aware that prompting could be used and did not have any rules forbidding its use.  She stated that at the end of an interview board members reviewed their notes to identify the indicators, assessed the answer and arrived at a mark.  She stated that the board first marked the interview, then the written memo before scoring the ability to communicate orally and in writing.  She testified that she did not prompt any of the candidates she interviewed. 

47 The testimony of the other member of the board, Ms. Gravel, was consistent with that of Ms. Guillemette.  She stated that she recorded the candidate’s responses and assessed the extent to which the candidate’s remarks corresponded with the indicators.  She then awarded a score in accordance with the rating guide. In relation to the complainant’s answer to question 1, Ms. Gravel stated that her answer was lacking in the area of coordinating work activity for staff, monitoring staff and follow-up.  Although Ms. Gravel acknowledged that the complainant listed indicators, she stated that her response did not link those indicators to the supervisory functions of a Parole Officer Supervisor. 

48 There is no basis for finding that the board was unreasonable in considering only the oral response to question 1. The complainant’s belief that her answer to question 2 would be used in assessing her answer to question 1 cannot be reconciled with the fact that during the interview she was not permitted to refer to her written memo.  It stands to reason that if the content of the memo was to be considered in assessing the first question, the candidates would have been allowed to refer to the memo’s content in answering the question.

49 The Tribunal finds that, in accordance with the rating guide, the board members were looking for candidates to provide detailed descriptions and explanations of the actions they would take in response to question 1.  Simply naming the items was not sufficient.  The comments of the board members are consistent and relate directly to the expected behaviours for the ability to supervise staff effectively.

50 As for the matter of prompting, there is no evidence before the Tribunal that the complainant was treated differently than any other candidate who was assessed in the interview.  Accordingly, there is no factual basis to support a finding of abuse of authority concerning the board’s decision not to prompt the complainant during the interview.

51 The Tribunal concludes that the complainant’s evidence does not demonstrate that the board members overlooked elements of her response or were unreasonable in their assessment of her ability to supervise staff effectively.

The submission that there was a lack of consistency in the composition of the assessment board and the application of assessment methods

52 There is no dispute that various panels consisting of two and sometimes three board members assessed candidates in this appointment process.  The complainant contends that she was disadvantaged because only two board members assessed her interview.  The complainant submits that there are advantages to having a third board member present for interviews.  Relying on Ms. Guillemette’s acknowledgement that it is possible for a third board member to identify certain ideas from a candidate that fellow board members missed, the complainant submits that the board did not consider how the absence of a member could affect the complainant’s assessment. 

53 The complainant also submits that the board members failed to exercise independent judgment when assessing candidates.  In addition, the complainant submits that the assessment methodology used by the board lacked consistency because there was no agreement regarding the use of prompts by board members to elicit clarification, elaboration or examples from the candidates, the size of the various assessment panels was variable, and there was no uniform practice in terms of how the assessment panels arrived at their final score.  The complainant submits that the board failed to apply a consistent standard design to obtain objective ratings of each candidate.

54  Ms. Guillemette explained that she decided to proceed with two board members because scheduling conflicts as well as an unexpected personal tragedy for a board member prevented her from convening a three member board for the complainant’s interview. Both board members were of the opinion that having a third panel member does not provide either a significant advantage or disadvantage to a candidate.

55 The use of multiple panels comes under the broad discretion accorded to managers under the PSEA.  See, for example, Visca v. Deputy Minister of Justice, 2007 PSST 24 at para. 60).

56 The Tribunal has also dealt with the issue of the composition of an assessment board in Sampert v. Deputy Minister of National Defence, 2008 PSST 9 at para. 53 as follows:

There is no provision in the PSEA which requires a deputy head to establish an assessment board or that it have a certain composition (for example, to have a human resources officer on the board). Whether an assessment board is improperly constituted is a question of fact which depends on the specific complaint and the evidence presented at the hearing.

57 The Tribunal is satisfied that the respondent has provided a rational explanation for the assessment of the complainant during the interview by a two person board. More importantly, the complainant has provided insufficient evidence to support her contention that she was placed at a disadvantage over other candidates because she was interviewed by only two people. Similarly, the complainant’s claim that the two board members failed to exercise independent judgment when assessing candidates lacks any evidentiary foundation. On the contrary, the uncontradicted testimony of Ms. Gravel confirms that she independently assessed the complainant before the board assigned the marks for her responses to question 1 of the interview. 

58 It was also incumbent on the complainant to adduce sufficient evidence to demonstrate that there was inconsistency in the assessment of candidates during the interview stage of the appointment process, either through the use of prompts, or in the final scores awarded by various panels. She has not done so. The Tribunal finds that reasonable steps were taken by the respondent to ensure consistency.  Ms. Guillemette participated in 12 of the 15 interviews that were conducted.  As noted earlier, she provided guidance to new board members and consulted with all board members and HR to ensure consistency in conducting the interviews and in using the rating guide to evaluate candidates.  The Tribunal is satisfied that reasonable steps were taken in this case to limit the variables and to ensure consistency.  See, for example, Bizimana v. Deputy Minister of Public Works and Government Services, 2014 PSST 3 at paras. 31-33.

59 In summary, the Tribunal finds on a review of all the evidence that the complainant has failed to establish that the process for assessing her interview was flawed.  The instructions were not ambiguous.  The board’s decision to restrict the use of the written response to question 2 was within its discretion.  It was not unreasonable.  The instructions to candidates were clear concerning what abilities each question was designed to assess, and what was the standard required to pass each question.  The rating guide provided an objective basis that was used to assess all candidates. There is no evidence that Ms. Guillemette and Ms. Gravel failed to exercise independent judgment in assessing the complainant.  The Tribunal also finds that the complainant has failed to establish a lack of consistency either in terms of board composition or application of the assessment tool during the interview.

60 The Tribunal concludes that the complainant has failed to prove that the respondent committed any error or otherwise acted improperly in its assessment of her candidacy.

Issue III:    Did the respondent show bias against the complainant in this appointment process?

61 The complainant alleges that the way the board scored her answer to question 1 demonstrates bias against her.   

62 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.

63 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. At para. 74 in Gignac, the Tribunal adopted the test set out in Committee for Justice and Liberty to fit the context of bias in an appointment process, as follows:

Where bias is alleged, the following test can be used to analyze this allegation, while taking into account the circumstances surrounding it: If a relatively informed bystander can reasonably perceive bias on the part of one or more persons responsible for assessment, the Tribunal can conclude that abuse of authority exists.

64 The Tribunal notes at the outset that no evidence of actual bias was presented in this case. Moreover, there is no evidence of reasonable apprehension of bias on the part of Ms. Guillemette. The complainant’s suspicions of bias arose during her informal discussion with Ms. Gravel.  According to the complainant, Ms. Gravel told her that there was no doubt that she would be a good Parole Officer Supervisor one day and had plenty of time to get there.  The complainant stated that she was surprised to hear that and became concerned about bias with respect to her assessment.  The complainant testified that her concerns heightened when she was told that she was too direct and had sounded as though she had read the manual on how to be a Parole Officer Supervisor. Ms. Gravel denied making both of these comments. 

65 The Tribunal finds that, even if the above-noted comments were made, a reasonably informed bystander could not reasonably perceive bias on the part of Ms. Gravel based on these comments alone. The comments, if in fact made, were voiced in the context of an informal discussion. As the Tribunal has explained, the purpose of informal discussion is intended primarily to be a means of communication for a candidate to discuss the reasons for elimination from a process.  See Rozka v. Deputy Minister of Citizenship and Immigration Canada, 2007 PSST 0046 at para. 76.  The comments attributed to Ms. Gravel need to be viewed in this context. As the Tribunal’s case law emphasizes, a complainant is required to provide considerably more evidence to support an allegation of reasonable apprehension of bias than what is before the Tribunal in this case.

66 The Tribunal concludes that the complainant has failed to prove that the respondent showed bias against her in this appointment process.

Decision

67 For all these reasons, the complaints are dismissed.

Eugene F. Williams

Member

Parties of Record

Tribunal File:

2013-0126/0127

Style of Cause:

Lori Pynn and the Commissioner of the Correctional Service of Canada

Hearing:

July 8 and 9, 2014
Toronto, Ontario
Final written submissions received on
July 16, 2014

Date of Reasons:

September 3, 2014

APPEARANCES:

For the complainant:

George Stones

For the respondent:

Vanessa Reshitnyk

For the Public
Service Commission:

Luc Savard
(written submissions)