FPSLREB Decisions

Heard at St. John’s, Newfoundland
April 12 and 13, 2016.

REASONS FOR DECISION

I. Introduction

1         The complainants, Violet Warford, Lori Gosse and Donna Bonia, were unsuccessful candidates in the internal advertised process 14-RCM-IA-X-B-STJ-HQ-41989 for an indeterminate appointment to the position of Information Systems Application Specialist (“ISAS”) at the AS-03 group and level in the Royal Canadian Mounted Police (RCMP), based in St. John’s, NL. The complaints were filed on November 19, 2014 (Bonia, Gosse) and November 18, 2014 (Warford).

2         The complainants allege that the respondent abused its authority in the application of merit by demonstrating favouritism towards the appointee and fettering its discretion in assessing the screening criteria.

3         The respondent denies the allegations, maintaining that the assessment board acted appropriately and that the successful appointee meets all the essential qualifications.

4         The Public Service Commission (PSC) did not attend the hearing. It did make lengthy written submissions that discuss the regulatory and policy framework that underpin appointment processes in the federal public service. I need only note that the PSC took no position on the merits of the complaints in this hearing.

5         For the reasons that follow, I find that the complainants have not established that the respondent abused its authority and therefore dismiss all the complaints.

II. Background

6         The complainants applied to the AS-03 appointment process, which was open to RCMP regular members, public service employees, civilian members and temporary civilian employees in Divisions “B”, “J”, “H” and “L”, which comprise the Atlantic Region.

7         All three complainants were initially screened out of the process. Upon each requesting separate informal discussions to review the results, the respondent re-assessed each applicant’s essential criteria and Ms. Bonia was subsequently screened-in. Ms. Bonia passed the written exam stage of assessment and completed the interview and reference checks. Complainants Warford and Gosse received no revisions to the initial screening results. Ms. Bonia was not successful in the appointment and joins Ms. Warford and Ms. Gosse in this complaint.

III. Issues

I must determine the following issues:

(i) Did the respondent show personal favouritism towards the appointee?

(ii) Did the respondent mislead and disadvantage Ms. Bonia by giving her incorrect information regarding what would be on the written examination?

(iii) Did the respondent unfairly and contrary to the stated application criteria in the job opportunity advertisement accept additional information from Ms. Thomson as an “attachment” to her cover letter and does this amount to an abuse of authority?

(iv) Did the respondent fetter its discretion and abuse its authority by failing to exercise its discretion to use personal knowledge about Ms. Gosse and Ms. Warford to infer that they had acquired one of the essential experience qualifications?

IV. Analysis

8         Section 77 of the Public Service Employment Act (the Act) provides that an unsuccessful candidate in the area of selection for an internal advertised appointment process may file a complaint with the Board that he or she was not appointed or proposed for appointment because of an abuse of authority.

9         Abuse of authority is not defined in the Act. However, s. 2(4) offers the following guidance: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.” Abuse of authority also includes improper conduct and omissions. The nature and seriousness of the improper conduct or omission will determine whether or not it constitutes abuse of authority. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 66.

A. Did the respondent show personal favouritism towards the appointee?

10        The complainants allege that the appointee, Amanda Thomson, was the respondent’s “preferred candidate” and that it “tailored” its rationale or “right fit statement” for the appointment to suit her.

11        As noted, abuse of authority includes personal favouritism. In Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7 at para. 41, the Board’s predecessor, the Public Service Staffing Tribunal (the “Tribunal”), interpreted this principle as meaning that undue personal interests, such as a personal relationship between the person selecting and the appointee should never be a reason for appointing someone. Other examples of personal favouritism include the selection of a person as a personal favour or to gain personal favour.

12        The complainants maintain that the circumstances leading up to Ms. Thomson’s appointment demonstrate that the respondent favoured her and abused its authority. The position in question was located in a relatively small workplace with little turnover, thus making the incumbent’s retirement a topic of strong interest amongst fellow employees. The complainants testified that they were concerned before the position even became vacant that Ms. Thomson was the favoured person in the office being considered for the position.

13        Their concerns were based on several factors including that Ms. Thomson was being given AS-03 tasks commensurate with that position, her desk was moved to be located in the immediate vicinity of the retiring incumbent, she was allowed a training course opportunity, and she was invited into closed door meetings with supervisors.

14        The complainants allege that these opportunities were not afforded to them and demonstrate that Ms. Thomson was favoured in the appointment and given an unfair advantage in the appointment process.

15        I find, however, that the respondent had a reasonable explanation for these actions, which is related to workplace requirements and shows that favouritism was not a factor.

16        The evidence demonstrates that when the position became vacant, the respondent appointed several employees including Ms. Gosse on an acting rotation basis to the position. However, when Ms. Warford was offered this opportunity, she chose to accept an acting appointment to a CR-5 position instead. Ms. Bonia expressed her strong desire to be given a share of the AS-03 acting rotation but her request was declined. Jill Lunen, who is the major case management unit supervisor, told her that there were already enough people in the unit to cover the acting responsibilities and that she would not know enough about the duties of the position given that she worked in a different unit.

17        As for how the office was organized, Ms. Lunen testified that Ms. Thomson’s desk was moved to work alongside the incumbent because of new equipment being introduced in the workplace, which limited the available space and made her move necessary. Ms. Thomson was allowed to attend a training course, which the other candidates were not, because the incumbent had already registered to attend but became ill. Ms. Thomson was next most senior person on staff and therefore the opportunity was first offered to her. Space in the course was limited and the others could not be accommodated after she accepted.

18        In relation to the complainants’ claims that that Ms. Thomson was assigned cases to work on, Ms. Lunen explained that this was due to her technical ability to work in “super text” software with which the others in the office were not familiar. She also stated that this software is not commonly used anymore and is not one of the required competencies for the AS-03 position. This same matter at least partially explains concerns voiced by Ms. Gosse who testified that she was given a share of the AS-03 rotation but that she was not given AS-03 duties. She testified that she was told to take the extra pay for the acting duties and to keep quiet about not being given the duties that normally accompany the position.  

19        The complainants also argued that the right fit criteria were designed to favour Ms. Thomson. However, no evidence was tabled to support this allegation.

20        Stephanie Sachsse, who is the highest ranking regular member of the RCMP at the workplace, testified that contrary to the allegation that the outcome of the appointment process had been pre-determined, she in fact directed that the area of selection designated in the job opportunity advertisement be opened to all staff in the Atlantic Region in order to encourage as many applicants as possible.

21        Based upon the evidence before me, I find all the instances cited by the complainants as evidence of preferential treatment towards Ms. Thomson were in fact based upon reasonable operational requirements of the office. They do not establish that any favouritism was shown towards her, let alone any personal favouritism as mentioned in the PSEA, of which no evidence at all was adduced.

B. Did the respondent mislead and disadvantage Ms. Bonia by giving her incorrect information regarding what would be on the written examination?                       

22        Ms. Bonia alleges that Ms. Lunen misled her about the content of the exam. She had completed a written exam in a previous appointment process and did not know all the computer terms used in it. She claims that she discussed this with Ms. Lunen in the context of the present AS-03 competition and says she was assured that the questions would be different and that no computer terms would be used. However, there were in fact some computer terms on the exam. She claims that she was misled and that this shows that the respondent was biased against her.

23        The complainants did not present any evidence before me to compare the exams and even if I were to accept Ms. Bonia’s allegations, I would not find that it sustains a finding of abuse of authority. This kind of “incorrect” information is not akin to situations where candidates have been given detailed information about what would be on an exam, that have been found to constitute an abuse of authority (see, for instance, Martin v. Deputy Minister of Defence, 2010 PSST 19).

C. Did the respondent unfairly and contrary to the stated application criteria in the job opportunity advertisement accept additional information from Ms. Thomson as an “attachment” to her cover letter and does this amount to an abuse of authority?

24        The complainants point to the fact that Ms. Thomson’s cover letter and resume total 18 pages. In their opinion, they are written in a style that is commonly used by regular members of the RCMP. According to the complainants, the public service staff at the RCMP uses more succinct cover letters and resumes. Complainants Gosse, Bonia and Warford’s cover letters and resumes totaled: six, four and nine pages respectively.

25        The complainants led no evidence to support their allegation on this point and my own review of the respondent’s job opportunity advertisement gives no direction as to page length or the format in which the cover letter and resume should be presented.

26        Perhaps the most compelling evidence on this point was provided by Ms. Warford when she testified that upon questioning one of her superiors about why she was screened out of the process, he replied that her application was “ugly” and that it looked like she “only put ten minutes worth of effort” into preparing it. Ms. Warford testified that she replied to him that in fact she only spent “five minutes” preparing her application. She added in her testimony that she “assumed” her manager knew what she did.

27        None of the three complainants, in fact, provided sufficient details in their letters and resumes to satisfy the screening criteria. The job opportunity advertisement clearly stated that applicants must give “concrete and detailed” examples of how they meet the essential qualifications. This direction was printed in capital letters.

28        I have no evidence before me to support the allegation that the respondent made an error or was unfair in accepting the 18 page application of Ms. Tomson and make no such finding.

D. Did the respondent fetter its discretion and abuse its authority by failing to exercise its discretion to use personal knowledge about Ms. Gosse and Ms. Warford to infer that they had acquired one of the essential experience qualifications through a course that they had taken?                                       

29        The job opportunity advertisement specified that candidates had to illustrate with concrete examples how they met the essential qualifications, which included recent and significant experience using the electronic Major Case Management (MCM) software application known as Evidence and Reports (E&R). “Recent” was defined as experience acquired over the past three years and significant as the depth and breadth of experience normally acquired from carrying out these duties on a regular basis, for a period of approximately 12 months.

30        The job opportunity advertisement clearly directed applicants to give detailed examples of how they met the criteria. It went even further and warned applicants that personal knowledge of their work would not be used:

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VERY IMPORTANT NOTE: It is your responsibility as a candidate to submit a cover letter which clearly outlines that you meet EACH of the screening qualifications (i.e. education and experience qualifications). The screening board cannot make any assumptions about your experience. Please note that it is not sufficient to simply state that a qualification is met or to provide a listing of current of past responsibilities. You must provide CONCRETE EXAMPLES WHICH ILLUSTRATE how you meet each qualification. Please list each screening qualification as a heading followed by a description outlining how that qualification is met. Failure to provide an appropriate cover letter may result in your application being rejected from this selection process.

PROOF OF YOUR EDUCATION will be requested and MUST be provided during the selection process, in order to verify that candidates meet the education requirement. Candidates who are unable to provide proof that they meet this essential qualification as requested may be eliminated from the process.

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[...]

You MUST CLEARLY DEMONSTRATE IN WRITING how you meet the requirements under Language, Education and Experience. The screening board cannot make any assumptions about your experience. It is not sufficient to say that you have the required qualifications or to list your current duties. PROVIDE CONCRETE AND DETAILED EXAMPLES AND DESCRIBE THE WORK/DUTIES YOU HAVE PERFORMED. Failure to do so may result in your job application not being considered further during the screening process

[Emphasis in the original]

31        Ms. Gosse and Ms. Warford both gave uncontradicted testimony that they completed a training course to prepare them to train other staff on E&R. Ms. Warford testified that she had travelled with Ms. Lunen to assist in delivering E&R training sessions.

32        Ms. Lunen admitted in her testimony that she knew that Ms. Gosse and Ms.Warford had completed the “training the trainer” course for E&R. She further confirmed that she did not use this personal knowledge to screen these complainants’ applications. She tried to minimize the relevance of this course by indicating that it is more of a general training course to help people be comfortable appearing before a classroom and to effectively use various instruction methods.

33        In the screening for essential qualifications, Ms. Warford received 0/4, Ms. Gosse 2/4 and Ms. Bonia 2/4. After each of the complainants requested and were granted an informal discussion regarding the screening, their applications were re-assessed. Ms. Warford and Gosse had their initial scores confirmed while Ms. Bonia was advised that she was found to meet all the essential qualifications.

34        On the matter of the E&R training, I note that Ms. Gosse was found to meet the essential criterion of recent and significant experience using E&R but was found not to meet the essential qualification of recent and significant experience in database administration/management of documents using E&R.

35        The complainants referred me to Poirier v. The Deputy Minister for Veterans Affairs, 2011 PSST 3 as an authority supporting their claim that the respondent in the case before me fettered its discretion and thereby committed an abuse of authority by failing to rely upon its assessment board’s personal knowledge of the complainants to deem them as meeting the essential qualifications. I distinguish Poirier on its facts, however, as it is a case dealing with the wording of a job opportunity advertisement that was found to be “ambiguous” (see paragraphs 41 and 49). The Tribunal then found that the respondent in that case, having given ambiguous instructions to applicants, should have used its discretion to give fair consideration of the complainant’s application and that its failure to do so amounted to an abuse of authority. The failure to exercise such discretion is one of the enumerated examples of abuse of authority set out in Tibbs. Unlike Poirier, there was no such problem in the instructions given to applicants in the present case.

36        The complainants also referred me to Payne v. The Minister of National Defense, 2013 PSST 15, which addressed Poirier and considered the additional factor of an assessment board dealing with candidates in an inconsistent manner. The Payne Tribunal noted that the respondent in Poirier claimed that it could not consider the complainant’s application because it was not submitted in the required format, but exercised its discretion nonetheless to screen in other candidates whose applications were also not in the required format. The respondent in that case was found to have abused its authority.

37        The Payne case involved two complainants, Mr. Payne and Mr. Burke. One of the assessment board members in that case was aware that Mr. Burke met one of the essential qualifications, yet Mr. Burke was eliminated from the appointment process for having failed to demonstrate that he had this qualification. In contrast, the assessment board opted to consult Mr. Payne’s supervisor to access his personal knowledge about him. The board ultimately relied upon this information in deciding to screen him out. The Tribunal held that the assessment board acted in an inconsistent and unfair manner by refusing to consider its personal knowledge about Mr. Burke’s qualifications, while relying on the supervisor’s personal knowledge to screen Mr. Payne out.

38        Ms. Gosse claims that the two essential criteria related to E&R are so similar that she doesn’t know how she could meet the first criterion for the program but not the second in dealing with databases in the program. I disagree. It is possible for a person to be adept at training others to use a program but not have recent and extensive experience in actually using the program for things like database entry. It is reasonable that the respondent clearly requested detailed examples of such a competency in the screening process.

39        As the Tribunal held in Edwards v. Deputy Minister of Indian and Northern Affairs Canada, 2011 PSST 10 at paras. 33-48, it is up to candidates to demonstrate on their applications that they meet all the essential criteria, particularly where the job opportunity advertisement specifically requires it. There is no obligation on an assessment board to infer qualifications when candidates have been specifically told that they must demonstrate them clearly in their applications.

40        While I have concerns about the decision of the respondent to disregard the fact that both Ms. Gosse and Ms. Warford were trained E&R trainers in the determination of the criteria related to the E&R program, I do not find this is an abuse of authority.

41        In fact, rather than being an abuse of authority, the assessment board’s decision not to rely on its personal knowledge with respect to certain of the candidates resulted in fair treatment for all candidates. Ms. Bonia was not supervised and did not work with Ms. Lunen, who was on the assessment board. It would have been unfair to Ms. Bonia had the other candidates had the benefit of the screening board relying on its personal and subjective knowledge of their work experience.

42        In summary, while I think it would have been reasonable for this single essential qualification to have been deemed to be met by Ms. Gosse and Ms. Warford, I find it is not an abuse of authority for the respondent to have followed their stated criteria of the job opportunity advertisement and thereby ensure that all candidates are assessed equally. As has been often noted in other staffing decisions, it is not my role, as a panel of the Board, to reassess candidates’ qualifications. My role is to determine whether there was an abuse of authority in the appointment process, such as in the assessment made by the assessment board (see, for instance, Boutzouvis v. the Director of Public Prosecution Service of Canada, 2012 PSST 25 at para. 27; Stamp v. Commissioner of the Correctional Service of Canada), 2014 PSST 4).

IV. Conclusion

43        The complainants have not established that the respondent abused its authority in its assessment of the three complainants.

44        For all of the above reasons, I make the following order.

V. Order

45        The complaints are dismissed.

June 28, 2016.