FPSLREB Decisions

Heard at Halifax, Nova Scotia,
February 16 and 17, 2016

REASONS FOR DECISION

I. Introduction

1        The complainant, Anthony Drozdowski, was an unsuccessful candidate in the internal advertised process 2014-SVC-ACIN-NS-15953 for an acting appointment to the position of Regional Manager, Corporate Operations, at the AS-06 group and level in the Department of Public Works and Government Services (“PWGSC”). He alleges that the respondent, the Deputy Head of PWGSC, abused its authority in the application of merit. More specifically, the complainant alleges that there was bias on the part of one assessment board member, inadequate materials to make an assessment, favouritism in selecting the appointee, and finally, discrimination based on ethnic origin.

2        The respondent denies the allegations, and maintains that the assessment board acted appropriately and that the successful appointee met all the essential qualifications.

3        The Public Service Commission (“PSC”) did not attend the hearing. It presented a written submission on PSC policies and jurisprudence relating to the issues. It took no position on the merits of the case.

4        The complaint was filed with the Public Service Staffing Tribunal (“Tribunal”) on September 30, 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 (“Board”). This new Board has replaced the Tribunal and the Public Service Labour Relations Board and is responsible for dealing with complaints filed under the Public Service Employment Act, S.C. 2003, c. 22, s. 12 and 13 (“PSEA”). Consequently, this decision is rendered by a panel of the Board.

5        For the reasons that follow, I find that the complaint is not substantiated.

II. Background

6        The complainant applied to the AS-06 appointment process in May 2014. The process was open to PWGSC employees in the Eastern Region (Atlantic Canada).

7        The complainant was screened into the process. The essential qualifications included:

· Knowledge of key policies, guidelines and/or practices in at least one area of corporate operations;

· Ability to communicate effectively in writing;

· Strategic thinking;

· Engagement;

· Management excellence.

8        The respondent planned to administer a written test to evaluate knowledge and writing ability. After a first open-book test was administered, the respondent decided to administer a closed-book test in order to better evaluate writing ability. This second test also evaluated strategic thinking. After the two tests, an interview with open-ended questions was conducted to assess, amongst other competencies, engagement and management excellence. The complainant succeeded for knowledge, but failed on writing skills, strategic thinking, engagement and management excellence (action management).

9        An informal discussion was held on November 14, 2014. The respondent maintained its position that the marking had been fair.

10        The complaint is brought pursuant to s. 77(1)(a) of the PSEA; the complainant alleges that the respondent abused its authority in the application of merit.

III. Issues

11        The issues to be decided are the following:

1. Was there bias in assessing the complainant due to Ms. Bruce’s involvement?

2. Were the assessment materials inadequate, and was the complainant unfairly assessed?

3. Was there favouritism?

4. Was there discrimination in the appointment process?

IV. Analysis

12        The relevant provisions of the PSEA for the purpose of this complaint are the following:

77 (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Board’s regulations — make a complaint to the Board that he or she was not appointed or proposed for appointment by reason of

(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

30 (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.

 (2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; [...]

13        The complainant alleges an abuse of authority in the assessment of his qualifications. As stated in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 71, abuse of authority is essentially an action that Parliament cannot have envisaged as part of the discretion given to a delegated authority. In other words, acting in an “outrageous, unreasonable or unacceptable way”. As the Tribunal has often stated, abuse of authority is a matter of degree. It cannot be any omission or error that amounts to abuse of authority; rather, the behaviour must be of such an egregious nature that it cannot be part of the delegated manager’s discretion.

14        It is important also to state that the complainant has the burden of proof; he has to establish that the respondent has committed an error of such serious nature that it amounts to an abuse of authority.

Issue 1 – Was there bias in assessing the complainant due to Ms. Bruce’s involvement?

15        One of the three members of the assessment board, Kelley Bruce, is the complainant’s immediate supervisor. The complainant alleges that prior to this appointment process, a conflict had developed between him and Ms. Bruce about his performance; this conflict, according to the complainant, gave rise to a reasonable apprehension of bias in his assessment.

16        The complainant sought to introduce a memorandum of agreement (MOA) related to a settlement entered into on April 11, 2013, between the complainant and the respondent concerning a conflict between the complainant and Ms. Bruce. The respondent objected, as the MOA’s terms were confidential. I allowed the respondent’s objection. In any event, I accepted as fact that in the past issues had arisen between the complainant and Ms. Bruce about his performance. I also received evidence that Ms. Bruce had removed herself as a board member in the assessment of the complainant’s application. According to a handwritten note by Morgan Morrissey, a human resources advisor: “Kelly [sic] Bruce is A. Drozdowski’s substantive, immediate supervisor and there have been issues of performance in the past. To ensure impartiality, Kelley Bruce removed herself as a board member for A. Drozdowski’s assessment.” This note appears on an email dated May 28, 2014.

17        The complainant introduced a performance evaluation Ms. Bruce completed as his immediate supervisor. It shows that she had indicated that his writing skills were insufficient.

18        The complainant introduced an informal organizational chart to show that the position to be filled was at the same level as Ms. Bruce; thus, she would have assessed someone who was to be part of the same management team.

19        Although Ms. Bruce was not supposed to assess the complainant’s application, she was in fact present at the meeting to exchange information, on November 14, 2014, after the complaint had been filed. The delegated manager, Ms. Wade, attended by phone. Ms. Cainey, a bargaining agent representative who attended the meeting, testified that Ms. Bruce was the one who pointed out several flaws in the complainant’s exam. Ms. Wade stated that Ms. Bruce was present at that meeting not as a member of the assessment board but as resourcing regional manager.

20        The complainant claimed that it was clear that Ms. Bruce continued to be involved in assessing the complainant, as shown by her involvement in the exchange of information meeting on November 14, 2014. She had a closed mind about the complainant’s writing abilities, as shown by the performance evaluation.

21        The respondent’s evidence is that, as shown by the email attached to the “Statement of Impartiality”, Ms. Bruce was not involved in assessing the complainant, which Ms. Wade thoroughly confirmed. Ms. Wade also stated that she and the other assessment board member, Glen Hynes, were the only ones to evaluate the written tests and to conduct the interview with the complainant.

22        As the Tribunal found in Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10, bias on the part of the assessment board would constitute abuse of authority.

23        Bias in the context of administrative tribunals was dealt with by the Supreme Court of Canada in Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL). In that decision, the Supreme Court states that the duty to act fairly, the duty of any adjudicator, precludes a biased approach:

Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal. See Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602. The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. [para. 22 (QL)]

24        This test was restated in the context of staffing decisions in Denny v. Deputy Minister of National Defence, 2009 PSST 29, where the Tribunal stated:

 [126] In a more recent decision, Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL), at para. 22 (QL), the Supreme Court articulated the test as follows: “The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.” The objective test articulated by the Supreme Court in Committee for Justice and Newfoundland Telephone also applies to the circumstances here; members of the assessment board have a duty to act fairly, which includes a bias-free assessment. If a reasonably informed bystander looking at the process could reasonably perceive bias on the part of one or more of the assessment board members, then the duty to act fairly has not been met. It is also important to emphasize that one of the key values articulated in the preamble of the PSEA is fairness. [emphasis added]

25        In Gignac, this test was again reformulated when the Tribunal concluded that bias, or reasonably perceived bias, would constitute an abuse of authority. In Gignac, the “reasonably informed bystander” becomes the “relatively informed bystander” in the English version, an unfortunate case of retranslation. In Newfoundland Telephone, the “reasonably informed bystander” becomes in the French version “un observateur relativement bien renseigné”. When Denny, issued originally in English, was translated into French, the translator used the Supreme Court of Canada terminology. Gignac was issued in French, and again, the Tribunal used the French terminology of the Supreme Court decision in Newfoundland Telephone (“observateur relativement bien renseigné”). When it was translated into English, instead of going back to the original term (“reasonably informed bystander”), the translator translated “relativement bien renseigné” as “relatively informed”. The test for bias as abuse of authority thus became in Gignac:

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. [para 74]

26        Given the history of the terminology, I think the test can be reworded as follows: If a reasonably informed bystander could reasonably perceive bias on the part of one or more of the persons responsible for assessment, the Board can conclude that abuse of authority exists.

27        In the instant case, the reasonable apprehension of bias analysis cannot apply to Ms. Bruce, as she was not involved in the assessment of the complainant. Her involvement in the exchange of information was unfortunate, but it was done long after the assessment. The oral and written evidence from Ms. Wade and the notes from Mr. Hynes, the other assessment board member, with respect to the interview forms and the exams’ scoring, show ample justification for the scores of both the complainant and the appointee. Ms. Wade and Mr. Hynes corrected the written exams, and conducted the interview with the complainant. Ms. Bruce was not involved in the assessment of the complainant.

28        I find that a reasonably informed bystander could not perceive bias, as Ms. Bruce had no authority on the decisions made during the selection process, and Ms. Wade and Mr. Hynes arrived at their own conclusions independently.

Issue 2 - Were the assessment materials inadequate, and was the complainant unfairly assessed?

29        The assessment was carried out through written exams and an interview. The first exam was administered on the Internet. The complainant copied a good part of his answer directly from the respondent’s website. The successful appointee also copied from the website but to a lesser degree.

30        The respondent realized that it would be difficult to assess writing abilities if the material was mainly copied. Accordingly, a second, proctored, exam was administered for which the candidates did not have access to any material.

31        The complainant failed both tests for writing ability. In the first, he made some grammatical errors. In the second, the layout and content were judged unsatisfactory.

32        The complainant stated that both the instructions and the assessment criteria for the written exam were vague and ambiguous. In the first test, there were no instructions regarding copying. The second test simply asked for a briefing page on a given topic. No particular formatting was required.

33        In her testimony, Ms. Wade was asked to compare the second exams of the complainant and the appointee. She pointed out several obvious differences. While the complainant had essentially written a block of text with no breaks except punctuation, the appointee’s text showed better use of space, several paragraph breaks and a point-form list. She added that the appointee’s text was easier to follow and more intelligible.

34        The material used to assess the candidates was thorough and detailed, and I saw no evidence that the complainant was unfairly assessed. Obviously, the complainant does not agree with the respondent’s writing requirements. Ms. Wade spoke of flow, legibility, and ease of understanding. The complainant argues that more guidance should have been provided and that the respondent should have stated it wanted more paragraphs and a point-form listing if that was what was sought. Unfortunately, the complainant missed the point — communication skills were being sought, of which legibility is a part.

35        The complainant stated that different marking schemes were applied — his second test was not marked with comments, while the appointee’s test did have comments, which according to him shows that a decision had been made about writing skills without considering the written exam. His second test does not show comments but it does show the marks attributed to the exam. As stated above, at the hearing, Ms. Wade clearly explained the reasoning behind the evaluation of the second exam. I do not see this evaluation as arbitrary.

36        As for the answers provided during the interview, I have no reason to believe that the complainant was unfairly scored on them. The interview scoring sheets for both candidates include detailed reports of their answers. The assessment board must have some leeway in determining what constitutes satisfactory answers and to what extent the answers reflect the qualities sought, such as engagement or management excellence. It is not the Board’s task to reassess the candidates; I am satisfied that they were properly assessed, and the complainant did not point to any evidence of unfair marking. Points were attributed according to the scale reflected in the interview forms; those points can be justified from the answers noted.

Issue 3 - Was there favouritism?

37        Abuse of authority includes bad faith and personal favouritism, as stated in s. 2(4) of the PSEA. The test therefore is not whether there has been favouritism, but whether there has been personal favouritism. Personal favouritism implies that an appointee has been chosen, not on the basis of his or her qualifications, but rather because of a personal relationship with the decision maker. As stated in Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7, evidence of a personal relationship favouring a candidate can be direct or indirect. In Turner v. Deputy Minister of Citizenship and Immigration Canada, 2009 PSST 22, paras 93-94, the Tribunal, drawing from Glasgow and Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 7, gives various examples of actions that can be seen as motivated by personal favouritism:  selecting a person because of a personal relationship, as a personal favour or to gain a personal favour; preparing a work description to falsely reflect a higher classification in order to grant a higher salary; establishing the essential qualifications to ensure the appointment of a specific person, without regard to the actual requirements of the position to be filled; appointing a person who does not meet the essential qualifications of the position.

38        The complainant stated that the appointee had been unfairly favoured. This was shown by the fact that the position, traditionally located in Halifax, Nova Scotia, was moved to St. John’s, Newfoundland, to suit the appointee. Ms. Wade explained that to offer more opportunity throughout the respondent’s Eastern Region (Atlantic Canada), the position had been advertised for that region, not only for Halifax. For the six-month acting period, the duties of the position could be carried out from any of the respondent’s eastern locations.

39        The complainant presented no evidence of personal favouritism. Opening the selection process to the entire Eastern Region entailed making some location accommodation if someone outside Halifax was the successful candidate. I cannot see that as an example of personal favouritism.

40        The complainant also mentioned the appointee’s mother, who apparently works in the “Parliamentary precinct”. No evidence was presented on this point, nor was the relevance explained. I find that there was no evidence of abuse of authority by reason of personal favouritism.

Issue 4 - Was there discrimination in the appointment process?

41        The complainant stated that he had been discriminated against because of his ethnic origin. English is his second language; because of it, he submits greater scrutiny was applied to his exams than to the appointee’s exams. According to the complainant, discrimination was obvious in the treatment he received. The first test had been scrutinized more closely because his writing skills were doubted; for the same reason, more severe criteria were applied to him in the second written test.

42        Discrimination can be considered a form of abuse of authority. Section 80 of the PSEA provides that “in considering whether a complaint under section 77 is substantiated, the Board may interpret and apply the Canadian Human Rights Act” [R.S.C., 1985, c. H-6, “CHRA”]. National or ethnic origin is one of the prohibited grounds of discrimination set out in s. 3(1) of the CHRA.

43        To establish discrimination, the complainant first must establish prima facie discrimination. Some adverse treatment must be shown, linked to a prohibited ground of discrimination (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39).

44        The respondent argued that the complainant had not established a prima facie case of discrimination. English as a second language is not a ground of discrimination under the CHRA.

45        I think the complainant’s allegation can be construed a little more generously. I understand his discrimination claim to be grounded on his ethnic origin, which is east European. According to his reasoning, because of his ethnic origin, English is his second language; and because English is his second language, he was unfairly treated.

46        I can accept that in certain cases, it would be possible to show discrimination based on the fact that a person belongs to a group whose first language is not English, and that that could properly be considered discrimination based on national or ethnic origin. Some evidence would be needed that not speaking English as a first language played a role in the assessment, which is not the same as an objective assessment of language skills.

47        The respondent also argued that nothing in its behaviour showed prejudice towards the complainant. He had been given the same opportunities and had been assessed in the same way as all the other candidates.

48        In this case, I have found no evidence of adverse treatment based on ethnic origin. According to the complainant, his first test was singled out for copying because the respondent was looking specifically for mistakes. I see it otherwise. From the email exchanges, it seems to me the respondent sought to be as fair as possible when it realized that the instructions in the first test did not specifically preclude copying.

49        The complainant was awarded full marks for knowledge on the first test but failing marks for the mistakes he made in the few sentences he wrote. True, the appointee also copied some material and made mistakes. But he copied less and could therefore be assessed more completely on his writing. The respondent carefully weighted the scores of the first and second tests to ensure a comprehensive assessment.

50        No evidence was presented for any type of discriminatory practice on the part of the assessment board, other than the fact that the complainant feels unfairly assessed. As stated in Nash v. Commissioner of the Correctional Service of Canada, 2014 PSST 10 at para 54, a simple assertion that a prohibited ground played a role in the assessment is not sufficient; there must be some evidence to support the assertion. The Canadian Human Rights Tribunal stated it thus in Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32 at para. 41: “... an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough”. (Decision affirmed, 2006 FC 785).

51        The complainant’s oral skills were given a pass mark. The complainant has not established a prima facie case of discrimination, as there was no evidence of adverse treatment linked to his ethnic origin. The fact that he failed the writing ability component of the assessment can be objectively justified. As stated, I believe the assessment was fair.

52        For all of the above reasons, the Board makes the following order:

VI. Order

53        The complaint is dismissed.

April 12, 2016.