FPSLREB Decisions

REASONS FOR DECISION

I. Introduction

1        On February 21, 2014, Terry Casper, the complainant, filed a complaint of abuse of authority concerning an internal advertised appointment process for citizenship and immigration officer - inland and settlement officer positions at the PM-03 group and level in the Department of Citizenship and Immigration (CIC). The complaint was filed with the former Public Service Staffing Tribunal (“the Tribunal”) under s. 77 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13; PSEA).

2        On June 27, 2014, the respondent, the Deputy Minister of CIC, filed a motion to dismiss the complaint on the ground that the complainant is not an unsuccessful candidate in this appointment process and therefore did not have the right to file a complaint.

3        The Tribunal reviewed the submissions filed by the respondent and those filed in response by the complainant and the Public Service Commission (PSC) and decided to convene a hearing via teleconference to determine the complainant’s standing with respect to the right of recourse granted under s. 77 of the PSEA.

4        Before the hearing, the complainant, the respondent, and the PSC agreed that 13 documents would be entered into evidence on consent.

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) came into force and created the Public Service Labour Relations and Employment Board (“the Board”). The Board replaces the Tribunal and the Public Service Labour Relations Board and is responsible for handling complaints filed under the PSEA. Consequently, on February 27, 2015, a panel of the Board heard the respondent’s motion to dismiss the complaint.

6        For the following reasons, the Board finds that the complainant was not entitled to file this complaint under s. 77 of the PSEA. Accordingly, the Board has no jurisdiction to hear it.

II. Background

7        The complainant was on leave of absence from his PM-03 service delivery specialist position at CIC in Vegreville, Alberta. In February 2013, he was cleared to return to work, but he could not work in Vegreville or under the management of his previous supervisors.

8        The respondent had a priority management unit (PMU), which received requests from CIC managers for departmental priority clearance to staff. The PMU determined whether CIC employees with legislative priority status pursuant to the PSEA, regulatory priority under the Public Service Employment Regulations, SOR/2005-334, or CIC employees affected by workforce adjustment (WFA) should be considered for a position or whether departmental priority clearance would be granted. The complainant did not have any priority or WFA status. Nevertheless, in order to accommodate the complainant’s return to work, the respondent initiated a procedure under which when the PMU received a request to staff a PM-03 or equivalent position in the Western and Ontario Regions, the information was sent to the Labour Relations team leader who was dealing with the complainant’s file, who then sent the position information to the complainant. If the complainant was interested in the position, he provided his résumé and a covering letter, which were forwarded to the hiring manager for consideration. In the context of these reasons, this procedure is referred to as “the referral process”.

9        The internal advertised appointment process that is the subject of this complaint, process 13-IMC-IA-WST-020 (process 13-20), was advertised on May 6, 2013 with a closing date for applications of May 17, 2013.

10        On January 6, 2014, the Labour Relations Manager contacted the complainant by email concerning “another poster” for his consideration. The document entered into evidence does not include a “poster” or Job Opportunity Advertisement ; it contains a series of three emails, including one requesting departmental priority clearance for an indeterminate appointment to a PM-03 citizenship and immigration officer - inland position in Saskatoon, Saskatchewan. An English and a French Statement of Merit Criteria (SMC) for PM-03 citizenship and immigration officer - inland and settlement officer positions were attached to the email. The French SMC had “13-020” in the document heading.

11        On January 9, 2014, the Labour Relations Manager sent another PM-03 referral to the complainant. This one was for a settlement officer position and the same two SMCs were attached.

12        The complainant was assessed in February 2014.

13        On February 12, 2014, the complainant was notified that he would not be considered further since he had failed to meet two of the essential merit criteria. The following table was included in the notification:

14        A notice of Information Regarding Acting Appointment was issued on February 18, 2014, for a one-year acting appointment to a PM-03 position, from process 13-20.

15        The complainant filed this complaint on February 21, 2014.

III. Issues

16        The Board must determine the following issues:

i. Is the complainant an unsuccessful candidate in process 13-20?

ii. If the complainant is not an unsuccessful candidate, does the Board have jurisdiction to hear this complaint?

IV. Analysis

A. Issue I: Is the complainant an unsuccessful candidate in process 13-20?

17        A party that brings a motion before the Board has the burden of proof. In this case, the onus rests on the respondent to satisfy the Board that the complainant is not an unsuccessful candidate in the internal advertised appointment process that is the subject of this complaint.

18        Although the term “unsuccessful candidate” is not defined, it is used in s. 77(2)(a) of the PSEA to describe those who have recourse in an internal advertised appointment process. The Tribunal and the Board have consistently held that to be an unsuccessful candidate, a complainant must have been a candidate in the advertised appointment process at issue (see Dayton v. Deputy Minister of National Defence, 2009 PSST 20 at para. 22). In most cases, confirmation of whether a complainant submitted an application during the application period is sufficient to determine whether he or she was a candidate in the process.

19        In this case, there is no dispute that the complainant did not submit an application when process 13-20 was open for applications between May 6 and 17, 2013. However, he argues that in the course of the referral process described earlier in these reasons, he applied and was assessed in the context of process 13-20, which made him a candidate in that process.

20        The evidence shows that on January 6 and 9, 2014, the respondent informed the complainant of PM-03 positions that were going to be staffed. In both instances, the SMCs that were attached to the referral were the same as the SMC for process 13-20; in fact, the French SMCs had “13-020” in the heading.

21        It is well established that to be a candidate in an advertised process, a person must submit an application during the application period. The application period for process 13-20 closed on May 17, 2013, and the complainant had not applied. If he did apply, as he argues, it would have been after he had been referred in January 2014.

22        In Renaud v. Deputy Minister of National Defence, 2013 PSST 26 at paras. 30 to 36, the Tribunal found that the respondent abused its authority by reopening an advertised process to one person several months after the application period had closed. In the Board’s view, the respondent could not have accepted an application to process 13-20 from the complainant in January 2014.

23        The complainant argues that the Board should follow the Federal Court’s decision in Finley v. Canada (Attorney General), 2004 FC 1668; however, the facts in this case are different. Ms. Finley applied to the process at issue in that case during the application period, and she had a statutory priority for appointment at the time as a surplus employee. In this case, the complainant did not apply when process 13-20 was open to applications, and although the respondent was considering him for PM-03 positions, he did not have priority status at that time. Contrary to the complainant’s submission, he was not an “internal priority”. He was on leave, and he required accommodation to return to work; however, his situation did not entitle him to a legislative or regulatory priority. He was not entitled to any exclusion from appointment-related requirements, principles, or practices.

24        The respondent attached the SMC for process 13-20 to the two referrals of January 6 and 9, 2014. In the Board’s view, this demonstrates only that the complainant was expected to meet the same qualifications that were assessed in process 13-20, since the requests that triggered his referrals were for appointments from that process. This is not evidence that he had been made a candidate in process 13-20.

25        By the time the two referrals were made, in January 2014, the assessments in process 13-20 had been completed. Furthermore, there is no evidence that the complainant was assessed against the essential qualifications used in process 13-20. On the contrary, the evidence shows that he was assessed against slightly different qualifications.

26        The evidence shows that the respondent initially planned to assess the complainant each time he was interested in a PM-03 position to which he had been referred. Sadie McLure, team leader, staffing, testified that the complainant had been referred for multiple positions and that he was interested in several of them. In late January 2014, the respondent decided it would be more efficient to assess him once for all the positions in the Western Region for which he had been referred.

27        The evidence demonstrates that the complainant was assessed against a similar but different SMC. Ms. McLure explained that an SMC that had been used for an appointment process in Vancouver, British Columbia, had resulted in a large pool of qualified candidates. Many appointments had been made from that pool, and management was satisfied that the process had produced good candidates. Ms. McLure stated that the Regional Director General and several Directors reviewed the Vancouver SMC and the process 13-20 SMC and determined that the Vancouver SMC would be used to assess the complainant for PM-03 positions in the Western Region.

28        The SMC used to assess the complainant had a lower education requirement and somewhat different experience requirements than those in the SMC for process 13-20. In addition, the SMC for process 13-20 had one more essential behavioural competency qualification than the one used to assess the complainant. In Burke v. Deputy Minister of Department of National Defence, 2009 PSST 3, the Tribunal determined that amending the SMC after the candidates have been assessed and without reassessing them using the new SMC is a fundamental error in an advertised appointment process. That error was significant in the Tribunal’s finding of abuse of authority in that case.

29        For the same reason, the Board finds that the SMC used to assess the complainant could not have been used to make an appointment from process 13-20. Furthermore, he could not have been appointed from process 13-20 because he had not been assessed for all the essential qualifications required in that process.

30        The Board therefore concludes that the complainant was not a candidate in process 13-20. It finds that the referral process was distinct and separate from process 13-20. Had the complainant met the qualifications as a result of the referral process, the respondent would have had to use another staffing process under the PSEA to place him in a PM-03 position because he was not assessed in the context of a particular appointment process. As Ms. McLure stated in her testimony, had he met the qualifications, the respondent could have used deployment or a non-advertised appointment process to place him in a PM-03 position.

31        The notification of assessment results that the respondent sent to the complainant included references to two appointment process numbers, one of which was process 13-20. The Board accepts Ms. McLure’s explanation that the PMU required the process numbers. The PMU had received requests to make appointments from specific appointment processes, which triggered the complainant’s referrals. Therefore, the process number was required so that the PMU could proceed with the initial request to appoint.

32        In its correspondence with the complainant before his assessment, the respondent clearly stated that the assessment was not linked to any particular process but rather to the search for a position so he could return to work in accordance with his accommodation requirements. While the respondent should have been equally clear in its communication of his assessment result, its lapse is not determinative of his standing with respect to process 13-20.

33        The respondent used an existing resource, the PMU, to facilitate a referral process to find the complainant a PM-03 position. The PMU linked at least one referral to appointment process 13-20 because the referral arose when a request was made to appoint from process 13-20. However, the complainant was referred for a position; he was not referred to process 13-20. If the complainant had been qualified, the respondent could have placed him in a PM-03 position rather than make the appointment from process 13-20. The Board finds that the complainant was not a candidate in process 13-20. Accordingly, he is not an unsuccessful candidate in process 13-20.

B. Issue II: If the complainant is not an unsuccessful candidate, does the Board have jurisdiction to hear this complaint?

34        Section 77(2)(a) of the PSEA stipulates that in an internal advertised appointment process, only an unsuccessful candidate in the area of selection can file a complaint under s. 77(1).

35        Having found that the complainant is not an unsuccessful candidate in process 13-20, he did not have the right to file this complaint. Therefore, the Board does not have jurisdiction under the PSEA to consider the complaint.

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

V. Order

37        The complaint is dismissed.

June 10, 2016.