FPSLREB Decisions

REASONS FOR DECISION

I. Motion to dismiss

1        On June 9, 2016, the complainant, Michael Kachmar, filed a complaint pursuant to s. 77(1)(a) and (b) of the Public Service Employment Act (PSEA) in relation to a rotational assignment within the Department of Foreign Affairs and International Trade (now known as Global Affairs Canada). The complainant submits that there was abuse of authority in the choice of process and in the application of merit.

2        On June 23, 2016, the respondent moved that the complaint be dismissed on the grounds that an appointment had not been made to the position within the meaning of the PSEA; rather, an assignment had taken place.  

3        The complainant contests the respondent’s motion. 

4        The Public Service Commission states in its response to the motion to dismiss that if the information provided by the respondent is correct, there would be no right to complain under s. 77(1) of the PSEA.

5        For the reasons that follow, I allow the motion to dismiss.

II. Background

6        In 2015, the respondent posted on its intranet an announcement concerning temporary assignment openings abroad for 2016. The respondent also posted on its website the 2016 Guidelines for Assignments Abroad (“the Guidelines”) to explain how departmental employees could apply for postings in foreign missions.

7        The complainant states that he applied for a posting at the CS-03 group and level, with Tokyo, Japan, as his first choice. In the end, the respondent assigned Debbie Whippler to the “FSITP Team Lead Tokyo” position at the CS-03 group and level. The complainant alleges that the respondent abused its authority in the choice of process and that it “overstaffed” the position since Ms. Whippler is a CS-04. The Guidelines state that people at-level will be selected before people of a different level. The complainant is at the CS-02 level.

8        The complainant argues that the selection of persons for rotational assignments is in fact an appointment process that is advertised and to which persons apply; they are then assessed against established qualifications. 

III. Issue

9        The issue raised by this motion is whether Ms. Whippler was assigned or appointed to the CS-03 position in Tokyo.

IV. Analysis

10        The Board has jurisdiction to hear a complaint under s. 77(1)(a) and (b) when an appointment has been made or is proposed:

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 ....

11        In other words, as the former Public Service Staffing Tribunal (PSST) has determined, an employee’s right to make a complaint under s. 77 of the PSEA is conditional on an appointment or proposed appointment having been made (see Czarnecki v. Deputy Head of Service Canada, 2007 PSST 1, and Tennant v. President of the Canadian International Development Agency,2007 PSST 6). 

12        Assignments within the federal public service are not defined or mentioned in the PSEA or in the Public Service Employment Regulations (PSER). However, the issue of assignment was dealt with in Ait Lahcen v. Commissioner of the Correctional Service of Canada, 2009 PSST 13. In that case, it was clear that the situation complained about was an assignment, not an appointment. The assignment protocol was clearly established, and the person in the assigned position never lost his substantive position. The PPST ruled that it did not have jurisdiction.

13        In the same way, the Board finds that the staffing action being challenged by the complainant in this case is an assignment, not an appointment. Employees are selected to be sent abroad on missions to fulfill the duties of their positions temporarily in another setting. Their substantive positions remain in Canada.

14        There is no doubt that candidates must be qualified to perform the duties of the position to which they are assigned; however, this is not the test for finding that an assignment is in fact an appointment, as was the case in Beyak v. Deputy Minister of Natural Resources Canada,2009 PSST 7. In that case, the respondent argued that a period of acting appointment was in fact an assignment and therefore not subject to complaints under s. 77. However, the PSST found that the alleged assignment had all the features of an appointment. A new position had been created that had become the appointee’s substantive position. That is not so in this case. (See also Doré v. Canada, [1987] 2 S.C.R. 503.)

15        The Board is satisfied that Ms. Whippler’s posting is an assignment during which she fulfills her duties at-level (albeit, in her case, at a lower classification level). As stated inBeyak,at para. 90:

90 An assignment can be defined as the temporary move of an employee, within a government department, to perform the duties of an existing position or to carry out a special project. While on assignment, the employee retains his or her substantive position, and performs duties at the same group and level. The employee does not acquire tenure in the position to which he or she is assigned, but rather is expected to return to his or her substantive position....

16        It may be that in certain cases, the position abroad is at a higher classification level than the substantive position of the person who is posted, in which case it can be considered an acting appointment as defined in s. 1 of the PSER, which reads as follows:

1 ... acting appointment means the temporary performance of the duties of another position by an employee, if the performance of those duties would have constituted a promotion had they been appointed to the position....

17        The Board would nonetheless lack the jurisdiction to hear a complaint under s. 77 of the PSEA for such an acting appointment due to s. 17 of the PSER, which reads as follows:

17 Despite sections 14 to 16, an acting appointment to a position in a rotational system established by the deputy head, in order to provide for the movement of employees within and outside Canada in the following organizations is excluded from the application of sections 30 and 77 of the Act:

(a) Department of Citizenship and Immigration,

(b) Department of Foreign Affairs and International Trade, and

(c) Canada Border Services Agency.

18        The Board finds that s. 17 of the PSER does not apply to the circumstances of this case. It is meant to cover those instances in which an assignment results in a promotion. In this case, the person whose assignment is being challenged is in fact assigned to a position at a lower classification level. Therefore, there was no promotion, and the assignment cannot be considered an acting appointment. Had the complainant been assigned to the CS-03 position, it would have constituted an acting appointment as defined by the PSER but without the possibility of recourse being taken against it under s. 77 of the PSEA because of s. 17 of the PSER.

19        Ms. Whippler’s posting to the Tokyo position is an assignment. The Board is not ruling on whether the complainant has reason to complain about the assignment carried out by the respondent. This decision is simply that the Board is not the proper forum, as it does not have jurisdiction under s. 77 of the PSEA to hear complaints about assignments.

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

V. Order

21        The motion is allowed. The complaint is dismissed.

July 29, 2016.