FPSLREB Decisions

Matter heard at Ottawa
on July 10-11 and
October 27-28, 2014

Introduction

1 James Baker, the complainant, participated in an internal advertised appointment process to staff a position of Supply Team Leader, PG‑05, in the Real Property Contracting Directorate, Procurement Branch, Public Works and Government Services Canada (PWGSC). He was screened out of the process because it was determined that he did not have the essential experience qualifications required for the position.

2 The complainant states that the respondent, the Deputy Minister of PWGSC, abused its authority in rejecting his application. He submits that the respondent improperly assessed his experience. He also submits that the respondent discriminated against him because of his national or ethnic origin or his religion. Lastly, he states that the respondent showed bias in favour of the person appointed as a result of the process.

3 The respondent denies these allegations. It submits that the complainant's application was screened out because he failed to demonstrate in his application that he had the essential experience qualifications stated in the job opportunity advertisement. The respondent also denies having discriminated against the complainant or shown bias in favour of the appointed person.

4 The Public Service Commission (PSC) did not participate in the hearing, but it provided written submissions describing its relevant appointment policies and guidelines. It did not take a position on the merits of the complaint.

5 This complaint was heard by the Public Service Staffing Tribunal (the former Tribunal) on July 10 and 11, and October 27 and 28, 2014. On November 1, 2014, the Public Service Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, came into effect and created the Public Service Labour Relations and Employment Board (the Board). This new Board replaces the former Tribunal and the Public Service Labour Relations Board, and is responsible for handling complaints filed under the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (PSEA). Consequently, this case is being decided by the Board.

6 For the reasons that follow, the Board determines that the complainant did not demonstrate that there was an abuse of authority in this case. The evidence shows that the complainant was eliminated from the process because he failed to demonstrate on his application that he had the essential experience qualifications. Furthermore, the evidence does not support the allegation that there was discrimination based on national or ethnic origin or religion, or the allegation that the respondent showed bias in favour of the person appointed.

Background

7 On November 14, 2011, the respondent posted a job opportunity advertisement on Publiservice for the position of Supply Team Leader, PG-05, in the Real Property Contracting Directorate, Procurement Branch, at PWGSC. The advertisement specified that the anticipated number of positions that could be staffed by this process was five.

8 Approximately 90 people, including the complainant, applied for a position. The applications were first screened according to the education and experience qualifications, as well as the asset qualifications. The complainant's application was screened out at this stage because he did not have the experience required for the position.

9 Approximately 40 candidates were screened in and were invited to an interview. Of them, 17 qualified, and a pool of qualified candidates was established.

10 A notification of appointment or proposed appointment pertaining to a successful candidate was published on August 14, 2013.

11 On August 26, 2013, the complainant filed a complaint of abuse of authority with the former Tribunal pursuant to section 77 of the PSEA. The complainant attached to his complaint a notice to the Canadian Human Rights Commission (CHRC) in accordance with section 78 of the PSEA to inform it that he intended to raise an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA).

Issues

12 The Board must determine whether the respondent abused its authority in the appointment process at issue. To do this, it must decide the following issues:

1. Did the respondent improperly assess the complainant?
2. Did the respondent discriminate against the complainant because of his national or ethnic origin or his religion?
3. Did the respondent show reasonable apprehension of bias in favour of the person appointed?

Analysis

13 Subsection 77(1) of the PSEA states that a person in the area of recourse may make a complaint to the Board that he or she was not appointed or proposed for appointment by reason of an abuse of authority. As stated in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8, at paragraph 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 onus is on the complainant to prove, on a balance of probabilities, that there was an abuse of authority.

Issue I:   Did the respondent improperly assess the complainant?

14 Jacques Leclerc, who retired in April 2012, was the Senior Director of the Real Property Contracting Directorate at the time of the appointment process. As the delegated manager for the process, he assigned some people, including Isabelle Richard, Manager, Construction Services Division, and Marc-André Gratton, whose title was not specified, to review the applications in order to determine whether the candidates had the experience required for the position.

15 The job opportunity advertisement (the advertisement) and the statement of merit criteria (SMC) stipulated that candidates had to have experience in each of the following seven procurement activities within the context of real property services: (1) providing advice and recommendations on procurement issues; (2) defining requirements OR reviewing and validating: statements of work or fee proposals or specifications; (3) planning or developing or implementing or managing procurement strategies; (4) creating or adapting evaluation criteria or methods of selection for competitive procurements; (5) working as a member of a project team that is responsible for establishing and managing procurement activities; (6) responding to procurement related inquiries and complaints from industry; and (7) coordinating material management activities. Furthermore, this experience had to have been acquired in one of the following areas: architecture, engineering, construction, building technology, project management, supply chain management or facility maintenance services.

16 In order for an application to be considered, the advertisement and SMC also stipulated that applicants had to have experience in one of the following three activities: (1) preparing solicitation documents or preparing responses to solicitation documents; (2) evaluating proposals or tenders; or (3) creating contractual documents. In addition, the advertisement contained the following statement under Essential Qualifications: "Applicants must clearly demonstrate on their application that they meet all of the following essential criteria … Failure to do so may result in the rejection of your application." The advertisement also indicated that candidates had to provide a cover letter. This requirement read as follows:

The candidates MUST provide a cover letter. Candidates must clearly demonstrate IN THEIR COVER LETTER, if and how they meet each of the Education and Experience qualifications, both Essentials and Assets, as the screening of applications may also be done using asset qualifications… Resumés may be used as a secondary source of information to validate the education and experience described in the cover letter. Failure to provide an appropriate cover letter could result in the application being rejected from the process.

[Emphasis in original document.]

17 The advertisement stipulated that candidates should use the qualifications as headers and then write a few paragraphs demonstrating, with concrete and detailed examples, how they meet the qualifications required.

18 The complainant submits that the selection board did not take the time to read his job application and rejected it outright. According to him, his job application contained sufficient information to demonstrate that he met all the merit criteria assessed. He believes that the board simply read his name and his classification before rejecting his application. He has been occupying the position of a General Office Clerk (CR-03) in the Real Property Contracting Directorate at PWGSC since May 2010.

19 The complainant did not provide a cover letter with his job application, as requested, although he claims otherwise. He submits that the "system (the Publiservice site on the Government of Canada Web site) did not accept his letter" [translation]. However, his job application was submitted into evidence and shows that he left the part entitled "Cover letter" of his job application blank but he completed the "Resumé" part of the application. In that part, he provided information under the following headers.

Skills …

Computer Knowledge …

Summary of Qualifications …

Professional Competencies

Purchasing and Supply …

Projects …

Management …

Professional Experience …

Education …

20 The complainant submits that he has a range of experience in the area of procurement, which he acquired in Tunisia and Canada. In his resumé, he summarized his experience as follows under the header "Summary of Qualifications":

I have sound experience in performing as a Supply Team Leader and I know best use of my skills. I used to plan, coordinate and implement new strategies in this regard and was always appraised for my best performance and never caused any problem in the work of the other managerial personnel. I worked with full diligence and coordinated all programs in a professional way. I always accepted challenges and achieved all targets in from of me and worked very well within team set up of the organization. [sic]

21 The complainant maintains that the assessment board did not have the right to reject his application because he is certain that the experience he listed on his resumé meets all the merit criteria assessed. In particular, he stated that, to ensure that he met all the merit criteria, he copied and pasted from a Treasury Board of Canada Secretariat site all the information that was provided in his resumé under the header "Purchasing and Supply". This consisted of a list of 20 generic tasks related to purchasing and supply management that he claims to have carried out. The first three tasks he listed, for example, read as follows:

• Organizes and conducts purchasing and contract activities involving the negotiation and award of service and goods contracts worth approximately $10 million annually, as well as the tendering of major construction projects … ;
• Interpreting departmental and Treasury Board policies and guidelines and developing and monitoring internal systems;
• Participating in and overseeing the inviting of tenders and awarding of contracts to ensure good government contracting principles and the attainment of best value to the Crown; …

22 The complainant did not specify on his resumé, however, when in his career he carried out all these procurement and supply management tasks to acquire this experience. For instance, he did not indicate when in his career or in what context he was responsible for negotiating and awarding contracts for goods and services worth approximately $10 million annually. This was the first experience he listed under "Purchasing and Supply."

23 In fact, it became clear at the hearing that the complainant did not only copy and paste to his resumé the above generic tasks related to purchasing and supply management that he claims to have carried out. All the information on his resumé under the header "Management" was also copied and pasted from a Web site. This consists of a list of 13 management tasks performed by a program coordinator at the University of Arizona, as stated in the description of tasks for the program coordinator entered into evidence at the hearing.

24 The complainant reluctantly admitted that he has never been a program coordinator at the University of Arizona. He initially denied having copied and pasted this information from the Internet. However, when the task description was submitted into evidence, he conceded, involuntarily, that he made this experience his own and copied, word for word, 13 of the 14 tasks performed by a program coordinator at the University of Arizona. The only task he did not copy to his resumé is the following: "Interacts and maintains liaison with students, faculty, staff and outside/community agencies in facilitating program objectives".

25 The complainant became quite frustrated when the respondent showed that he had provided misleading information on his resumé. Nevertheless, the complainant states that he is free to include what he wants on his resumé, and he insisted that he could copy and paste any information to enhance his resumé as he sees fit, which he did. In fact, he stated that he had copied and pasted this information to force the assessment board to screen in his application, even though it was made with false or fabricated information.

26 Ms. Richard explained how she assessed the complainant's application. She and her co-worker, Mr. Gratton, reviewed the complainant's application and then filled out a screening sheet. On that sheet, under the header "Experience," they noted that the complainant did not have any of the seven qualifications related to real property contracting services. They further noted on the sheet that the complainant did not have one of the three experience qualifications related to preparing or evaluating solicitation documents, proposals or tenders, or contractual documents. They then added the following comment on the sheet:

Experience claimed does not relate to position occupied. Does not answer the questions as per instruction on poster.

Ms. Richard and Mr. Gratton then signed and dated the screening sheet.

27 The former Tribunal has considered many cases where a complainant challenges the assessment of their application by the assessment board. The PSEA does not authorize the Board to assess candidates for appointment. This authority is granted to the PSC under section 30(2)(a) of the PSEA and may be delegated to deputy heads in accordance with section 15(1) of the PSEA. Therefore, the role of the Board is to determine whether the evidence demonstrates, on a balance of probabilities, that there was an abuse of authority in the assessment carried out by the assessment board. See, for example, Zhao v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 30.

28 The onus is on candidates to clearly demonstrate on their application that they have the essential qualifications specified in the job advertisement. See, for example, Purchase v. President of the Atlantic Canada Opportunities Agency, 2011 PSST 14.

29 The assessment board's task was to assess the information submitted by the complainant on his cover letter and resumé in order to determine whether it met the education and work experience requirements stated in the job opportunity advertisement. However, the complainant failed to submit a cover letter. He had been advised that this could result in his being screened out of the selection process.

30 Regardless, the assessment board reviewed his job application and determined that the information he submitted was not sufficient to meet the work experience requirement because it did not demonstrate that he had experience in the seven real property contracting services activities requested in one of the specified areas. Furthermore, the board determined that the information did not show that he met one of the three experience requirements related to preparing or evaluating solicitation documents, proposals or tenders, or contractual documents.

31 The advertisement asked candidates to use the required qualifications as headers and to write a few paragraphs to demonstrate, using examples, how they met those qualifications. The complainant did not do this. Instead, he submitted a resumé in which he listed generic tasks related to purchasing and supply management, and people and program management. Although his resumé contained, under the header "Professional Experience," a list of 14 jobs he has held in the past, the assessment board determined that this information did not enable it to see how, by holding these jobs, he would have acquired the experience sought. For example, his resumé did not make any reference to advice or recommendations he would have provided about procurement activities, though the first qualification assessed was "providing advice and recommendations on procurement issues". His resumé also made no indication that he would have prepared statements of work or that he would have planned, developed or implemented procurement strategies. Those were the second and third qualifications assessed. The same conclusion applies to the rest of the experience qualifications assessed.

32 In summary, it was the complainant's responsibility to follow the instructions provided in the advertisement and to clearly demonstrate on his application that he met the essential qualification requirements, if that was the case. According to the evidence submitted, he simply did not do this and that is why the board eliminated him during the screening process.

33 In light of the foregoing, the Board concludes that the complainant did not demonstrate that the respondent abused its authority in screening out his application on the ground that he did not have the experience qualifications required.

Issue II: Did the respondent discriminate against the complainant because of his national or ethnic origin or his religion?

34 Pursuant to section 80 of the PSEA, the Board may interpret and apply the CHRA when deciding whether the complaint has merit in regard to section 77.

35 Section 7 of the CHRA states that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual, or in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. Section 3 of the CHRA lists the prohibited grounds of discrimination, which include, among others, national or ethnic origin, and religion.

36 To demonstrate that the respondent engaged in a discriminatory practice, the complainant first must establish a prima facie case of discrimination, as the Supreme Court of Canada stated in Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536 ("O'Malley").

37 A prima facie case is one that covers the allegations made and that, if the allegations are believed, is complete and sufficient to justify a finding in the complainant's favour, in the absence of an answer from the respondent.Once a prima facie case is made, the onus then shifts to the respondent to disprove the allegations or provide some other reasonable explanation that is not based on discrimination. This explanation cannot be a mere pretext for discrimination. The Board cannot take into consideration the respondent's answer before determining whether a prima facie case of discrimination has been established. See Lincoln v. Bay Ferries Ltd., 2004 FCA 204, at para. 22.

38 It is not necessary for discriminatory considerations to be the sole reason for the actions at issue in order for the complaint to be substantiated. The complainant need only show that discrimination is one of the factors in the respondent's decision. See Holden v. Canadian National Railway Company (1990), 14 C.H.R.R. D/12 (F.C.A.), at para. 7. The standard of proof in discrimination cases is the civil standard of the balance of probabilities. See Public Service Alliance of Canada v. Canada (Department of National Defence), 1996 CanLII 4067 (FCA), [1996] 3 FC 789.

39 The Board must therefore first determine whether the complainant has established a prima facie case of discrimination.

Did the complainant establish a prima facie case of discrimination?

40 The complainant believes that his national or ethnic origin or his religion played a role in the respondent's decision to screen him out of the appointment process. The complainant is from Tunisia and is Muslim. He left that country to immigrate to Canada after working for a few years in Tunisia. He states that the respondent screened him out of the process because of his national or ethnic origin or because he is Muslim. In particular, he submits that an intern working at PWGSC accused him, in the past, of being an extremist. He says that he is harassed by his co-workers, but submits that he will never quit his job, even if he is not promoted like others.

41 The complainant entered into evidence five emails that prove, according to him, that the assessment board discriminated against him because of his national or ethnic origin or his religion. In the first email, dated March 7, 2012, the complainant asks his team leader to intervene because his co‑worker, M.A., told him that a manager had recommended that he be wary of him (the complainant). The complainant maintains in this email that his co-worker M.A. received this warning because a PWGSC intern had reportedly accused him of being an "extremist" [translation]. The complainant describes the situation to his team leader as follows:

It is with sadness that I learned that our former manager […] warned [M.A.] to be wary of James Baker as he is an "extremist". The term "extremist" was used by [an intern] to describe me. I would like you to take the necessary action to correct the situation, stop all injuries to my reputation and have a little more respect in the workplace.

[Translation]

42 In the second email, dated March 13, 2012 (at 8:32 a.m.), M.A. informs the team leader that he received an unexpected and unpleasant visit from the manager in question. According to him, the manager threatened him during this visit.

43 In the third email, dated March 13, 2012 (at 1:43 p.m.), the manager in question apologizes to M.A. for the disgraceful comments that he made to him earlier.

44 In the fourth email, dated March 13, 2012 (at 3:09 p.m.), the team leader informs M.A. of the order she has given to the manager in question. The email reads as follows: "As discussed, I asked [manager] to avoid speaking to you in the future" [translation].

45 In the final email, dated March 21, 2012, M.A. writes to the Director, Labour Relations and Ethics, PWGSC, to report the incident of March 13, 2012 (the manager's unexpected and unpleasant visit).

46 The complainant also states that another incident related to his national or ethnic origin or his religion occurred at his place of work in January 2014. In an email dated January 28, 2014, that he sent to his manager, the complainant described a situation where an employee from another division reportedly made a derogatory comment about him.

47 Lastly, the complainant submits that he has other evidence showing that he is treated unfairly by PWGSC on prohibited grounds of discrimination. He entered into evidence an email that he received from human resources informing him that a decision had been made to no longer use a pool created following another staffing process conducted in 2011 to staff various administrative positions. The email specified that a decision had been made to no longer use this pool because of irregularities discovered in the staffing file. According to the complainant, this decision to no longer use the pool, of which he was part, was made specifically to eliminate any chance of his advancing, because of his national or ethnic origin or his religion.

48 The complainant also believes that it is because he is on a "black list" [translation] that he has never been appointed to an administrative position. He submitted that it is unfair that others have been promoted when he has not.

49 The Board concludes that the complainant has not established a prima facie case of discrimination based on his national or ethnic origin or his religion. The complainant did not submit any evidence that his national or ethnic origin or his religion played a role in the assessment board's decision to screen him out of the appointment process in November 2011. First, the events described in the five emails from March 2012 occurred after the board screened him out in November 2011. Second, the incident of January 2014 reported by the complainant also occurred well after the board had eliminated him in November 2011. Lastly, none of the assessment board members were involved in these reported events of 2012 and 2014. Therefore, the Board is unable to conclude that the evidence submitted by the complainant is complete and sufficient to demonstrate that he was treated unfairly by the assessment board on prohibited grounds of discrimination.

50 Similarly, the Board is not convinced that the respondent's decision to no longer use a former pool was made solely to take away any chance of the complainant advancing, because of his national or ethnic origin or his religion. The complainant did not produce any evidence to disprove the respondent's written statement that this pool was closed because of irregularities discovered in the staffing file.

51 The Board therefore concludes that the evidence related to the complainant's allegations is not complete and sufficient to warrant a decision in his favour.

52 Lastly, though the above conclusion is sufficient to reject the complainant's allegation of discrimination, the Board finds that the respondent nonetheless provided convincing evidence that would disprove the complainant's allegation of discrimination if it were accepted. The respondent demonstrated that the complainant's national or ethnic origin or his religion had no impact on the decision to screen him out of the process. He was screened out simply because he did not demonstrate, on his application, that he had the experience required to be considered for appointment.

Issue III:    Did the respondent show reasonable apprehension of bias in favour of the person appointed?

53 In order to determine whether there was bias, it is not necessary to show that there is direct evidence of bias. Reasonable apprehension of bias can lead to a finding of abuse of authority. See Denny v. Deputy Minister of National Defence, 2009 PSST 29, at para. 125, referring to Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, on page 394.

54 In Gignac v. Deputy Minister of Public Works and Government Services Canada, 2010 PSST 10, the former Tribunal established that the people responsible for assessment in an appointment process have a duty to carry out an assessment that is unbiased and that does not generate a reasonable apprehension of bias. This criterion set out in Committee for Justice and Liberty can be adapted to apply in a context where there is reasonable apprehension of bias in relation to an appointment process: if a relatively informed person had a reasonable apprehension of bias with regard to one or more people responsible for the assessment, the Board could conclude that there was an abuse of authority.

55 The complainant believes that the board showed bias in favour of the appointed person and other people appointed in this process because they were "friends" [translation] of Mr. Leclerc. According to the complainant, the delegated manager administered this process to promote and recognize his friends before he retired. However, the complainant did not produce any evidence to support this allegation.

56 The Board notes that, even though there could have been several appointments resulting from this appointment process (the advertisement specified that the anticipated number of positions that could be staffed with this process was five), this complaint pertains solely to the person appointed in August 2013. The Board therefore has jurisdiction to review only the issue of whether the respondent showed bias in favour of the person appointed in August 2013.

57 In his testimony, Mr. Leclerc stated that the people who were appointed to positions of Supply Team Leader, including the person appointed in August 2013, are competent and qualified professionals dedicated to real property. They are neither "friends" [translation] nor "enemies" [translation]. These people were subject to a very rigorous assessment process and they succeeded.

58 In addition, Mr. Leclerc specified that he was not even involved in the appointment of the candidate who was selected in August 2013 because he retired in April 2012.

59 The Board finds that a relatively informed bystander who reviewed all the evidence could not reasonably perceive bias on the part of the assessment board in its assessment of the complainant. It was not demonstrated that Mr. Leclerc, as the chair of the assessment board, or Ms. Richard and Mr. Gratton, as assessment board members, acted in such a way that could lead a relatively informed bystander to perceive such bias. According to the Board, the complainant is speculating and makes statements that fall far short of constituting evidence demonstrating that there was an abuse of authority.

60 The Board therefore concludes that the complainant failed to establish that the respondent showed reasonable apprehension of bias in this appointment process.

Decision

61 For all these reasons, the complaint is dismissed.

Issue raised at the hearing

62 The Board notes that it gave a warning to the complainant during the hearing because of the offensive nature of the language he used at a certain point during the hearing. The Board believes that this warning should be made public. During its arguments, the respondent also raised the issue of the language used by the complainant during the hearing.

63 The Board finds that some of the words used by the complainant during the hearing were offensive and disrespectful toward witnesses, the respondent and the Board. More specifically, during the day of hearing on October 27, 2014, the complainant made a threatening statement that created concern for the safety of witnesses and other people present in the hearing room.

64 The Board notes that the complainant apologized for his threatening remarks.

65 However, the Board wishes to point out that the language used by the complainant was unacceptable. Words uttered to witnesses, other parties or the Board should never include insults or threats.

66 The Board also wishes to comment on the various manoeuvres and delay tactics used by the complainant between the time of submission of his complaint and the conclusion of the hearing, in order to slow down proceedings. For instance, the complainant made numerous requests to the former Tribunal to have subpoenas issued to compel 18 people to testify before the Tribunal. To facilitate proceedings and the hearing, the former Tribunal gave instructions on several occasions to the complainant to give him the opportunity to explain why he wanted 18 people to testify at the hearing. However, the complainant continually failed to comply with these instructions and caused considerable delays in the proceedings.

67 The Board may dismiss summarily, under section 21 of the Public Service Labour Relations and Employment Board Act (PSLREBA), S.C. 2013, c. 40, s. 365, any matter that in its opinion is trivial, frivolous, vexatious or was made in bad faith.

68 The complainant explained that he is extremely bitter about the fact that he feels overlooked for appointments within PWGSC and that it is this feeling that led him to adopt the obstructive behaviour and threatening language of which he is accused. The Board reiterates that, despite this, the language he used, as well as his aggressive behaviour throughout the proceedings, were unacceptable.

69 Given that the complainant was already warned about this behaviour, the Board hereby informs him that, if he continues to act this way in matters before the Board, it may take appropriate action, which may include, among other things, dismissing any subsequent complaint under s. 21 of the PSLREBA. See Pugh v. Deputy Minister of Justice, 2008 PSST 23.

Nathalie Daigle
Member