FPSLREB Decisions

Heard at Abbotsford, British Columbia,
January 12, 2016.

REASONS FOR DECISION

I. Introduction

1        The complainant, Daniel De Santis, applied for a position as Manager of Regional Operations at the AS-07 group and level in CORCAN, Matsqui Institution, in Abbotsford, British Columbia. He alleged that the respondent, the Commissioner of the Correctional Service of Canada (“CSC”), abused its authority with respect to both the choice of process and the application of merit.

2        The respondent denied these allegations. The appointment complied with the public service’s values of fairness and transparency, and the appointee met all essential qualifications of the position.

3        The Public Service Commission (“PSC”) did not attend the hearing. It presented written submissions on the applicable policies and guidelines and the relevant jurisprudence. It did not take a position on the merits of the complaint.

4        The complaint was filed with the Public Service Staffing Tribunal (“Tribunal”) on May 9, 2014. On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force, creating the Public Service Labour Relations and Employment Board (the “Board”) to replace the Tribunal and the Public Service Labour Relations Board. The Board now deals 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 substantiated. The evidence does not support a finding of abuse of authority in the choice of process; however, it does support a finding of abuse of authority in the application of merit.

II. Background

6        The complainant presented evidence at the hearing. The respondent called one witness, Sonya Ferrington. At the time of the events giving rise to the complaint, Ms. Ferrington’s last name was Salter. The relevant written evidence bears that name, but I will refer to the witness as Ms. Ferrington.

7        “Corcan” is the business organization within the CSC that includes several business lines, including construction, textiles, and manufacturing. Its primary purpose is to provide opportunities for inmates to acquire trade skills, but to the extent possible, it is run as a business.

8        For some time before December 2013, the Corcan’s position of regional manager of operations (RMO) was staffed on an acting basis, as the incumbent was on another assignment or on leave (the evidence is unclear and, in any event, irrelevant). On December 2, 2013, Scott Verwold was appointed on an acting basis until March 31, 2014, to fill the RMO position. Ms. Ferrington, who became acting regional director (to whom the RMO reported) in February 2014, testified that the respondent’s plan was to have different qualified persons rotate in the RMO position for acting assignments of four months less a day.

9        Sometime in March 2014, Don Guilles, who was to succeed Mr. Verwold in the acting RMO position, indicated that since he was acting as regional comptroller and it was the financial year-end, it would make more sense to prolong Mr. Verwold’s assignment by one month. To that end, Ms. Ferrington prepared a justification for the one-month extension, including an Assessment of Qualifications, explaining how Mr. Verwold met the essential qualifications for the RMO position. The extension was from April 1, 2014, to May 2, 2014.

10        Mr. Guilles then accepted another assignment, which meant that he was no longer available to act in the RMO position. The respondent then decided to hold an informal process, by way of an “Expression of Interest”, to determine if other CSC employees would be interested in the RMO acting assignment.

11        In April 2014, the respondent sent an Expression of Interest notice by email to all Pacific region employees for an assignment or acting opportunity for 4 months less a day to fill the position of Regional Manager of Operations (AS-07) at CORCAN- Pacific Region.

12        The respondent received 12 applications. Both the complainant and Mr. Verwold applied. Ms. Ferrington and Mr. Guilles reviewed the applications. Only two candidates were screened in, Mr. Verwold and another candidate. The complainant was screened out, because he was missing some experience qualifications. The other candidate became unavailable, and Mr. Verwold was appointed for another four-month less a day period, from May 3, 2014, to August 29, 2014. After that date, another person was appointed on an acting basis. The position has since been filled with an indeterminate appointment.

13        The complaint before the Board relates to the acting appointment of Mr. Verwold from May 3, 2014 to August 29, 2014, the second extension of his initial acting appointment.

14        On May 13, 2014, the complainant filed a complaint of abuse of authority with the Board pursuant to s. 77(1)(a) and (b) of the PSEA relating to the acting appointment.

III. Preliminary matter

15        During the hearing, the complainant sought to introduce his application, to show that he had not been assessed properly as to his experience in managing budgets and managing human resources. The respondent objected, stating that the assessment of the complainant had not been raised in the allegations. I allowed the application to be introduced for the purposes of the hearing.

16        The respondent objected to the introduction of the complainant’s application as evidence and to discussing his qualifications since his complaint dealt with the process, not his own assessment.

17        I agree with the respondent on that point and will not consider whether the complainant was wrongly screened out of the process, as this was not stated in the allegations. Section 23 of the Public Service Staffing Complaints Regulations, SOR/2006-6, provides that the Board will allow the complainant to amend his complaint if the amendment results from new information that was not available at the time the allegations were made or if it is in the interest of fairness to do so. In this case, those requirements are not met. See Cyr v. Chairperson of the Immigration and Refugee Board of Canada, 2007 PSST 37, and Desaulniers v. Deputy Minister of Environment Canada, 2011 PSST 18.

IV. Issues

18        The following two issues must be determined:

Issue I: Did the respondent abuse its authority in the choice of process?

Issue II: Did the respondent abuse its authority when it assessed the appointee’s qualifications?

V. Analysis

19        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);

(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process; [...]

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; [...]

20        The complainant alleges abuse of authority in the choice of process and the application of merit. 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. The complainant has the burden of proof (Tibbs, para. 50).

A. Issue 1 - Did the respondent abuse its authority in the choice of process?

21        The complainant alleged that describing the process as non-advertised could be considered an abuse of authority. He pointed out in his evidence and in his cross-examination of Ms. Ferrington that the process used for the second acting appointment of four months less a day, including the Expression of Interest, resembled far more an advertised process than a non-advertised process. He referred to CSC policies: “Bulletin on Acting Appointments, 2007-24” (“Bulletin 2007-24”), and “Bulletin on Criteria for Non-Advertised Appointment Processes, 2007-23” (“Bulletin 2007-23”), which both define advertised and non-advertised processes in the following manner:

Advertised Appointment Process: an appointment process where persons in the area of selection are informed of the appointment opportunity and have an opportunity to apply and to demonstrate their suitability against the merit criteria.

Non-Advertised Appointment Process: an appointment process which does not meet the conditions for an advertised appointment process.

22        The complainant argues that although the respondent maintained that it was a non-advertised process, it was in fact an advertised process, as it met all the characteristics of one: it was advertised to all employees in the Pacific Region via email, which gave them the opportunity to apply and to demonstrate their suitability against the merit criteria.

23        According to the complainant, when a process is advertised, candidates must be assessed objectively, using properly defined assessment tools. In this case, there were none. The applications were considered, and all but two applicants were screened out.

24        According to the respondent, what matters more is whether abuse of authority occurred in the process itself, however one chooses to describe it. In this case, Ms. Ferrington provided a satisfactory explanation as to the process that was followed. The candidates that responded to the Expression of Interest were carefully assessed. Mr. Verwold was chosen because he was the only one who had all the essential qualifications and was available. The respondent had planned a series of acting rotations but suffered a setback when Mr. Guilles accepted another assignment. The Expression of Interest was a way to make the process more transparent.

25        The PSEA does not define “advertised”, “non-advertised”, or “Expression of Interest”. In the end, in the context of this case, I am not sure that having the respondent describe as “non-advertised” a process that bears more resemblance to “advertised” has any impact on what is at issue. Choosing one or the other process can be the basis for finding abuse of authority, but that is not what the complainant argues. Rather, he stated that describing the process as non-advertised when it fact it should be considered advertised was itself abuse of authority.

26        The process does appear closer to an advertised process than a non-advertised process. The Expression of Interest process produced 12 candidates who were screened against the SMC. There is no obligation for the respondent to choose one appointment process rather than another, as long as the process is fair and transparent. Whether advertised or non-advertised, once the respondent asked for applications from employees, it had the duty to assess them fairly.

27        The non-advertised process, according to Bulletin 2007-23, requires the sub-delegated manager to provide the following:

· A written rationale demonstrating how his or her decision meets the established criteria stated in that bulletin and the appointment values. Using the “Checklist for Non-Advertised Appointment Processes” is mandatory.

· A written assessment of the proposed appointee against the essential qualifications and conditions of employment.

28        Those requirements were applied in this case, when the same person was appointed to the same position within 30 calendar days following the initial four-month period. The evidence shows that the sub-delegated manager, Ms. Ferrington, completed both documents.

29        I think the point of the complainant is that by stating that it was a non-advertised process, the respondent avoided the more complex assessment that usually is seen with advertised processes. But in either case, section 36 of the PSEA still grants considerable latitude to the deputy head in carrying out the assessment of essential qualifications. This would include screening out those who do not fulfill the essential qualification requirements and applying personal knowledge to assess the applicants’ qualifications.

30        Therefore, with respect to the process, whether it is considered advertised or non-advertised, I do not find that the complainant has established that there was abuse of authority in the choice of process.

B. Issue 2 -Did the respondent abuse its authority when assessing the appointee’s qualifications?

31        Section 30 of the PSEA provides that appointments must be based on merit, and that merit is established when the person to be appointed meets the essential qualifications for the work to be performed. According to Bulletin 2007-23, the manager to whom staffing has been delegated must provide a written rationale to justify the appointment, with a prescribed checklist, as well as a written assessment of the proposed appointee against the essential qualifications.

32        The complainant pointed to a number of deficiencies in the process leading to the appointment of Mr. Verworld: his oral communication skills were not assessed, since there was no interview, the qualification related to education was modified after the Expression of Interest notice had been sent out, and the application by Mr. Verworld in fact reproduced the written assessment that had been done to justify the one-month extension to the initial acting appointment.

33        Under Essential Abilities was the “Ability to communicate effectively orally and in writing”. Ms. Ferrington testified that the assessment was done as a whole, based on her knowledge, as his supervisor, of the appointee’s communication skills. The Tribunal has recognized that personal knowledge can be a valid assessment tool. As stated in Robertson v. Deputy Minister of National Defence, 2010 PSST 11, at para. 63:

The complainant alleges that the assessment board members should not have used their personal knowledge to assess the complainant’s qualifications. However, section 36 of the PSEA provides that the Commission, and by extension the assessment board, “may use any assessment method (…) that it considers appropriate” when evaluating candidates. The use of personal knowledge of a candidate by the assessment board is a legitimate tool, even if not specifically listed in the SMC as a means of assessment.

34        However, two elements in how the merit criteria were applied to Mr. Verwold’s application seem highly problematic to me: the essential qualification relating to education was not applied as would be expected from the Expression of Interest, and Mr. Verwold used in his application, in response to the invitation for an Expression of Interest, the Assessment of Qualifications used to justify the one-month extension.

35        The wording of the first essential qualification (education) in the SMC was not the same in the Expression of Interest notice as in the notice posted on Publiservice concerning the appointment of the successful candidate.

36        The Expression of Interest stated the following as the first merit criterion: “Successful completion of a two year [sic] post-secondary school diploma related to the position”. In the notice on Publiservice announcing the appointment of Mr. Verwold from May 3, 2014, to August 29, 2014, the essential qualification related to education is worded as follows:“Successful completion of a degree/diploma from a recognized college or university in an area relevant to the position or an acceptable combination of education, training and/or experience.”

37        In his application, Mr. Verwold did not specify any post-secondary education leading to a diploma but rather mentioned following a number of courses given by the respondent. Thus, his answer met the SMC found in the notice, but not the qualification stated in the Expression of Interest. Ms. Ferrington stated that the qualification as stated in the Expression of Interest had been applied. However, in Mr. Verwold’s application, part of which follows, no mention is made of a post-secondary school diploma:

Candidate holds multiple educational qualifications which speak to his ability to perform the functions and responsibilities of a Regional manager position. More specifically the candidate has successfully completed all required training in regards to financial and staffing responsibilities within the Federal Public Service and holds sub delegations of authority in both aforementioned categories. Additionally the candidate has many years of experience in areas related to the job in question (see resume), the candidate also has recent and significant experience working in a Correctional Environment and supervising a group of staff member [sic] responsible for the employment and training of Federal inmates.

38        Ms. Ferrington explained that Mr. Verwold was a skilled tradesman (plumbing) and that he had taken courses at the British Columbia Institute of Technology, which fulfilled the requirement of the diploma for two years of post-secondary education. This information did not appear anywhere in the documents (neither Mr. Verwold’s application nor his resume); Ms. Ferrington further explained that she had personal knowledge of this fact.

39        The respondent can choose whatever criteria suit the position it seeks to fill. However, a criterion cannot be altered between the posting of the Expression of Interest and the assessment without further notice being given to all those concerned by the Expression of Interest. Others in Mr. Verwold’s situation, without formal college or university degrees but with significant post-secondary training in a skilled trade, might have considered applying for the position, instead of being discouraged by their lack of “a two year post-secondary school diploma related to the position”.

40        In Burke v. Deputy Minister of Department of National Defence, 2009 PSST 3, the Tribunal had dealt with a matter where the merit criteria was amended after the candidates were assessed. The Tribunal stated in that case, that that was a fundamental error which could lead to an abuse of authority:

[44] Amending the SMC after the assessment of candidates has already been completed, and without reassessing the candidates using the new SMC, is a fundamental error in an appointment process. Depending on the circumstances, this may well lead to a substantiated complaint of abuse of authority. Assessment boards need to know what qualifications they are to evaluate, and candidates have a right to know what essential qualifications are being assessed for a particular job opportunity... [emphasis in the original]

41        The evidence shows that the criterion that was applied was in fact the one stated in the notice of appointment, not the one in the Expression of Interest.

42        The complainant also pointed out the fact that the application sent by Mr. Verwold in response to the call for an Expression of Interest was identical in its wording to the required “Assessment of Qualifications” that Ms. Ferrington wrote to justify the one-month extension and the second four-month appointment.

43        Ms. Ferrington testified that she wrote the assessment at the very beginning of April 2014, if not in March 2014. On its face, it covers the one-month period from April 1, 2014, to May 2, 2014, which immediately followed Mr. Verwold’s first four-month acting appointment. The document was signed by Ms. Salter and dated April 24, 2014, on the last page. Ms. Ferrington explained that the Assessment of Qualifications was used for both the one-month extension and the further four-month less day appointment.

44        On April 22, 2014, Mr. Verwold sent an email in response to the notice of an Expression of Interest to indicate his willingness to be considered for the second four-month less a day appointment. The email includes his statements on the essential qualifications, which are almost verbatim what Ms. Ferrington said she wrote in late March or early April. At the hearing, Ms. Ferrington failed to provide any explanation. I believe that a reasonable inference can be made, given the near-identical texts, that Mr. Verwold used the Assessment of Qualifications authored by Ms. Ferrington in his application.

45        It will be sufficient for the purpose of this demonstration to reproduce what appears in the Assessment of Qualifications for the acting period of April 1, 2014, to May 2, 2014, under “Education”:

Candidate holds multiple educational qualifications which speak to his ability to perform the functions and responsibilities of a Regional manager position. More specifically the candidate has successfully completed all required training in regards to financial and staffing responsibilities within the Federal Public Service and holds sub delegations of authority in both aforementioned categories. Additionally the candidate has many years of experience in areas related to the job in question (see resume), the candidate also has recent and significant experience working in a Correctional Environment and supervising a group of staff member [sic] responsible for the employment and training of Federal inmates.

46        I did not receive enough evidence at the hearing to conclude that Ms. Ferguson and Mr. Verwold had a personal relationship that influenced the outcome of the acting appointment process. Therefore, I cannot conclude that there was personal favouritism.

47        However, I can conclude that the appointment was not made on the basis of merit. The educational requirement applied was not the one stated in the Expression of Interest. Mr. Verwold’s application, on its face, did not meet the educational requirement stated in the Expression of Interest. Ms. Ferrington stated that she knew that Mr. Verwold had in fact post-secondary education leading to a skilled tradesman qualification. With respect, that does not match the “[s]uccessful completion of a two year [sic] post-secondary school diploma related to the position” requirement when the job being advertised has to do with business management, not using a trade. The respondent can choose to apply wider criteria, but it must state so from the start, not when carrying out assessments, to favour one candidate.

48        In addition, the application sent in by Mr. Verwold on April 22, 2014, in response to the Expression of Interest email, reproduced the Assessment of Qualifications written by Ms. Ferrington in late March or early April 2014. No satisfactory explanation was given for what seems a blatant disregard of process.

49        I find that those two actions, the post-facto application of another education criterion and Mr. Verwold’s use of Ms. Ferrington’s Assessment of Qualifications document, amount to an abuse of authority in the assessment of merit.

VI. Decision

50        For all these reasons, I find that the complaint is substantiated.

VII. Corrective Measures

51        As remedy, the complainant asked for damages for the lost opportunity or, in the alternative, to be made whole by being offered the same opportunity as Mr. Verwold had been offered for an acting assignment.

52        The respondent submitted that the Board does not have the authority to grant the remedies requested.

53        I have made no findings as to the application of the complainant; in any event, I can neither grant compensation for the lost opportunity to the complainant nor order the respondent to make an appointment as such remedies are beyond the authority granted by sections 81 and 82 of the PSEA, which read as follows:

81 (1) If the Board finds a complaint under section 77 to be substantiated, the Board may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Board considers appropriate.

 (2) Corrective action taken under subsection (1) may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.

82 The Board may not order the Commission to make an appointment or to conduct a new appointment process.

54        However, in Spirak v. Deputy Minister of Public Works and Government Services Canada, 2012 PSST 20, and Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 35, the Tribunal ordered revocations even though the acting term had expired, in Spirak, and in Beyak, even though the appointee was no longer in the position at issue.

55        Therefore, I order the revocation of Mr. Verwold’s acting appointment from May 3, 2014, to August 29, 2014.

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

VIII. Order

57        The complaint is substantiated.

58        The Board finds that there was no abuse of authority in the choice of process for the RMO, Pacific Region, Corcan, acting appointment for the period of May 3, 2014, to August 29, 2014.

59        The Board finds that there was abuse of authority in the application of merit criteria in the RMO, Pacific Region, Corcan, acting appointment for the period of May 3, 2014, to August 29, 2014.

60        I order the revocation of Mr. Verwold’s acting appointment from May 3, 2014, to August 29, 2014.

April 21, 2016.