FPSLREB Decisions

REASONS FOR DECISION

I. Application before the Board

1        On February 5, 2015, the complainant, Penny Soo-Markell, filed a complaint pursuant to s. 77(1)(b) of the Public Service Employment Act (PSEA) in response to an internal non-advertised appointment process that was used to fill an acting site financial analyst position at the FI-01 group and level from September 15, 2014, to January 13, 2016, at Joyceville Institution in Kingston, Ontario. At the time she filed her complaint, she was a site financial analyst classified at the FI-01 group and level at the Correctional Service of Canada’s (CSC’s) Regional Headquarters in Kingston. She alleged that the CSC’s commissioner (“the respondent”) abused its authority in the choice of process, specifically that the process was biased and non-transparent.

2        The respondent denied all the abuse of authority allegations. On February 18, 2015, it brought a motion to dismiss the complaint on the basis that the complainant lacked the necessary personal interest to file a s. 77 complaint. On March 6, 2015, the Public Service Labour Relations and Employment Board (“the Board”) determined that it was not satisfied that the respondent had met its onus by showing that the complainant lacked a personal interest in the position when she filed her complaint.

3        On August 3, 2016, pursuant to new information obtained during the pre-hearing conference, the respondent brought a second motion to dismiss the complaint on the grounds that the complainant lacked personal interest in the position.

4        The Public Service Commission did not take a position on the matter of personal interest.

5        For the reasons that follow, the motion to dismiss is granted.

II. Summary of the arguments

A. For the respondent

6        During the pre-hearing conference, the complainant expressly informed the Board that she has no interest in an FI-01 position at Joyceville Institution. In addition, she has presented no submissions or evidence to contradict the respondent’s position that she lacks personal interest.

7        The respondent submits that the complainant’s lack of personal interest in working at Joyceville Institution is further evidenced by the fact that she did not respond to an expression of interest emailed on January 19, 2015, for a deployment to an FI-01 position there. She did not complain that she was not appointed to the FI-01 position but filed this complaint on behalf of others. She alleges that others should have been appointed to the FI-01 pool.

8        Moreover, the remedy the complainant seeks is not directly related to the FI-01 acting appointment at Joyceville Institution but rather is to correct a perceived wrong that occurred nearly four years ago in her previous FI-02 acting appointment.

B. For the complainant

9        The complainant submits that she would not be considered for the position of acting site financial analyst at Joyceville Institution due to the biased opinion that the Chief of Finance currently has of her professionally. She takes issue with the fact that her FI-02 acting assignment, dating to 2013, was not extended. Furthermore, she states that management told her that her prior FI-02 acting assignment was not extended because, at that time, she had a case before the Board, and it had been determined that she did not qualify for an FI-02 pool.

10        In terms of remedy, she seeks changes to the staffing rules and practices and the equitable treatment of all employees. She indicated that she has an interest in the fair and consistent application of acting assignments for all employees.

III. Analysis

C. The issue

11        The issue raised by this motion is whether this complaint satisfies the personal interest requirement in s. 77; that is, whether the complainant alleges that she was not appointed or proposed for appointment to the acting site financial analyst position, at the FI-01 group and level from September 15, 2014, to January 13, 2016, at Joyceville Institution, by reason of an abuse of authority.

12        On November 1, 2014, the Public Service Labour Relations and Employment Board Act, (S.C. 2013, c. 40, s. 365), was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Staffing Tribunal (Tribunal) and the former Public Service Labour Relations Board. The Board is now responsible for handling complaints filed under the PSEA. Consequently, this decision was rendered by a panel of the Board. The Board also takes into account the caselaw of its predecessor, the Tribunal.

13        The Board has jurisdiction to hear a complaint under ss. 77 when a complainant has demonstrated a personal interest in an appointment or proposed appointment. That section reads as follows:

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 …

[Emphasis added]

14        The Tribunal considered this question in a number of its decisions, and it consistently held that a complainant must meet the personal interest requirement to have the right to file a complaint under s. 77.

15        This principle was established in Visca v. Deputy Minister of Justice et al. 2006 PSST 16, the Tribunal stated:

In subsection 77(1) of the PSEA, the words “a complaint to the Tribunal that he or she was not appointed or proposed for appointment”, clearly stipulates that a complaint must be personal to the complainant. A person can only complain “that he or she was not appointed” and cannot complain that other persons were not appointed.

16        In Evans v. Deputy Minister of Indian Affairs and Northern Development,2007 PSST 4, the Tribunal considered a complaint that was filed under s. 77 concerning a non-advertised appointment, and held as follows: “The Tribunal finds that a complainant’s right to file a complaint pursuant to section 77 of the PSEA is subject to the preliminary condition that the complainant must have a personal interest in the appointment.”

17        The Tribunal concluded that it did not have jurisdiction to consider and dispose of the complaint on the grounds that it was filed on behalf of others who might have sought the opportunity. On that basis, the complainant had no standing and therefore no right to file a complaint with the Tribunal pursuant to s. 77 of the PSEA.

18        In Beyak v. Deputy Minister of Natural Resources Canada,2009 PSST 35, and Silke v. Deputy Minister of National Defence,2010 PSST 9, the Tribunal held that a complainant must claim that he or she was not appointed or proposed for appointment because of an abuse of authority.

19         In the facts before me, the complainant was an indeterminate FI-01 site financial analyst at Regional Headquarters when she filed her complaint. In her response to the respondent’s motion, she did not indicate that she wished to be appointed or proposed for appointment to the acting FI-01 site financial analyst position at Joyceville Institution.

20        In her complaint, she states that the internal non-advertised FI-01 acting site financial analyst position at Joyceville Institution should have been offered to candidates within the then-current FI-01 pool that resulted from an internal advertised process. In her response to the respondent’s motion, she did not dispute the allegation that she had not been a candidate for the then-current FI-01 pool.

21        She also states that other employees within the CSC’s Ontario Region finance community should have been provided with the opportunity for career development at the FI-01 group and level as the appointee was already qualified in an FI-02 pool. These facts lead me to believe that she had no personal interest in the acting FI-01 site analyst position at Joyceville Institution but rather had a concern for other employees.

22        In Beyak at para.  80, the Tribunal held that the threshold test for having a personal interest in a position is not higher for a non-advertised process than an advertised process. The Board also notes that in Doraiswamy, at para. 16, the complainant expressly informed the Tribunal during a teleconference that he had no interest in the position.

23        The facts of this case are similar in that during the pre-hearing conference call, which was held on July 27, 2016, the complainant expressly stated that she was not interested in working in an FI-01 position at Joyceville Institution. Moreover, she did not dispute the respondent’s submission that she did not respond to an expression of interest that had been emailed on January 19, 2015, for a deployment to an FI-01 position at Joyceville Institution.

24        For these reasons, I conclude that the complainant did not have a personal interest in the acting FI-01 appointment to the site financial analyst position at Joyceville Institution and that, in fact, she complained on behalf of others and about the fact that her FI-02 acting assignment had not been extended. For these reasons, I conclude that the Board does not have jurisdiction to consider and dispose of this complaint.

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

IV. Order

26        The respondent’s motion is granted, and the complaint is dismissed. The Board orders the file closed.

September 15, 2016.