FPSLREB Decisions

Heard at Wainwright, Alberta,
February 28 and March 1, 2017.

REASONS FOR DECISION

I. Introduction

1                  Elizabeth Merkley, Bonnie Fisher, and Raymond Cummings (“the complainants”) each filed a complaint on June 16, 2015 (in the case of Mr. Cummings, on June 17), in relation to the non-advertised process for the acting appointment of Colleen Burnett (“the appointee”) to the position of civilian ammunition technical supervisor, classified at the GT-03 group and level (“the GT-03 position”).  They filed their complaints under paragraphs 77(1)(a) and (b) of the Public Service Employment Act(S.C. 2003, c. 22, ss. 12, 13;PSEA).  They allege that the respondent, the deputy minister of National Defence, abused its authority by using a non-advertised process, by favouring the appointee, and by not properly assessing her qualifications.  The respondent denies these allegations.

2                  On August 31, 2016, the respondent announced the appointee’s indeterminate appointment to the GT-03 position, again following a non-advertised process. Ms. Fisher and Mr. Cummings filed complaints in response to that appointment on September 7, 2016.  The allegation in this case was that the choice of process did not respect the applicable Public Service Commission (“PSC”) policies and that there was abuse in the application of merit, as well as favouritism.

3                  The Public Service Labour Relations and Employment Board (“the Board”) consolidated the first three complaints on July 22, 2016, for the purposes of the hearing and the subsequent decision.  At the prehearing conference that was held on January 16, 2017, the parties agreed to consolidate all the complaints for the hearing and the decision.

4                  The PSC filed written submissions regarding the legislative framework applicable to the acting and indeterminate appointments in question, but took no position on the merit of the complaints. It did not appear at the hearing.

5                  For the reasons that follow, I find that the complaints are not substantiated.

II. Background

6                  Ms. Fisher testified at the hearing on behalf of the complainants.  The respondent called three witnesses, each of whom is no longer in the complainants’ workplace but occupied their stated position at the time.  They were Major Doug McCarthy, commander of Canadian Forces Base Wainwright in Alberta (“the base”), where the complainants and the appointee work; Leslie Lambert, the administration officer for logistics support; and Captain Marvin Lacea, the ammunition technical officer at the base. The evidence is summarized below.

7                  The base houses an ammunition component that employs both military and civilian personnel.  The civilian employees take care of shipping, warehousing, and salvaging ammunition, under direction from military supervisors.  Certain operations, such as ammunition disposal (through blow up or other means) are exclusively the work of military personnel, who receive specialized training in such operations.

8                  Three of the services in the ammunition section report to civilian supervisors: the shipping unit, under a transit supervisor; the warehouse unit, under a warehouse supervisor; and the salvage unit, under a salvage supervisor.  These three supervisors have the same title according to the generic work description, which is civilian ammunition technical supervisor, and the same classification, GT-03.

9                  Ms. Fisher and Mr. Cummings work in the warehouse unit, and Ms. Merkley works in the salvage unit; they are classified at the GT-02 group and level.  The appointee works in the shipping unit, and prior to her appointment, she was also classified GT-02.

10        In November 2013, the employees working in the ammunition section were told that the transit supervisor would be retiring in the spring of 2014 and would need to be replaced.  The employees were also told that all of them would have the opportunity to compete for this position. It is unclear whether they were told at that time about the position’s requirements, but it was uncontested that the position required a special training course called Civil Ammunition Technician, level 3, which all witnesses referred to as the “CAT 3” course. It consists of 27 different modules and is generally given on the base over a six-week period.

11        The appointee took the course in the early part of 2014.  It became clear to the complainants that completing it would be required if they were to be considered for the transit supervisor position.

12        In April 2014, Ms. Fisher filed a grievance about the fact that the training opportunity was not being offered to all interested employees.  The grievance was allowed, and Major Arcouette, the officer in charge of logistics support, assured Ms. Fisher in his response that the training would be offered to everyone.  He added the following: “No indeterminate staffing will be done prior to interested candidates having the opportunity to complete all 27 modules, and no advantage will be given to the candidate who is currently receiving the truncated CAT 3 training.” That candidate was the appointee.

13        Despite those assurances, it took some time, until the spring of 2015, to offer the CAT 3 training to interested employees, including two of the complainants, Ms. Fisher and Mr. Cummings.  Major McCarthy testified that the training that was offered to the complainants was less than satisfactory.  The officer giving the training was somewhat disorganized, and to say the least, the training did not proceed smoothly.  Both complainants failed the course.  Major McCarthy thought it would be important for them to redo the entire course, not just the exam, because he did not think they had received adequate training.

14        Ms. Fisher testified that by the time the course was offered again, she was no longer interested, having been discouraged by the numerous hurdles.

15        Mr. Cummings and Ms. Merkley did not testify at the hearing, although they did attend.  Major McCarthy and Ms. Lambert testified that Mr. Cummings was also not interested in redoing the CAT 3 course.  Ms. Merkley took the subsequent training that Major McCarthy had offered and succeeded. However, for the indeterminate position, there was another necessary qualification, the “Dangerous Goods Shipping and Handling” qualification or “AHUR”, known as the “3K” course, and Ms. Merkley declined that training, according to the respondent’s witnesses.  This evidence was not contradicted.

16        The 3K course is an in-depth shipping ammunition course, and it is offered in Borden, Ontario.  It is primarily designed for military traffic technicians, and when space is available, it may be offered to civilian ammunition workers.  The course lasts several weeks.  It was offered to Ms. Fisher in September 2014.  That offer was then withdrawn, for want of available space.  It was offered again in November 2014, but she had to decline, for personal reasons.

17        Major McCarthy confirmed that the course is meant primarily for traffic technicians and that space is at a premium. He also stated that this qualification is essential for the indeterminate transit supervisor position.  It relates to shipping dangerous materials, and the safety dimension was of prime concern for him.  Ammunition is shipped between army bases on public roads.  It goes without saying that it should pose no threat to the Canadian public.  Both parties agreed that the 3K qualification was not a requirement for the acting position but that it was a valid requirement for the indeterminate position.

18        On October 1, 2014, the appointee, who had successfully completed the CAT 3 training and had the 3K qualification, was appointed on an acting basis for four months.  This appointment was extended starting on January 31, 2015.  The notice of acting appointment was published on June 3, 2015.  The acting appointment was to last until September 30, 2016.

19        Ms. Fisher filed a second grievance related to the GT-03 position on May 19, 2015, and Lieutenant Colonel Richardson, the base’s commanding officer at the time, responded on June 19, 2015.  When the grievance was heard, in June 2015, an announcement had already been made that the appointee was to fill the GT-03 position indeterminately.  In his grievance response, Lt. Col. Richardson answers three concerns:  the time it was taking Ms. Fisher to obtain the CAT 3 training, the appointee’s indeterminate appointment, and the fact that the acting appointment had not been offered to anyone else.  The essential elements of his response read as follows:

...

4. ... The Transit Supervisor position requires the Dangerous Good Shipping and Handling qualification (course code AHUR, commonly referred to as the ‘3K’), in addition to the CAT 3 training in order to complete the full duties of the position. Although this course has been offered to various civilians, including yourself, in the Ammo section in the past, currently only one civilian [the appointee] in the section holds this qualification.

5. I have carefully considered all the information I have available to me. I have determined that, as per the grievance decision you referenced, indeterminate staffing should not have commenced prior to the completion of the CAT 3 training. As such, that process is now being cancelled. The current acting assignment will not be revoked; however, it will be ended earlier than the date on the IRAA. Once the current CAT 3 training has been completed, acting opportunities will be offered to those employees with the CAT 3 qualification. Staffing of the acting and indeterminate positions will be done in accordance with the Public Service Employment Act, which provides an appointment framework based on a common set of guiding values guaranteeing fairness, transparency, accessibility and representativeness. Therefore, to the extent provided above, your grievance is upheld, and your corrective action is partially granted.

20        As stated earlier, the appointee was appointed on an indeterminate basis to the GT-03 position on August 31, 2016.

21        I note that the respondent provided in evidence a few documents pertaining to the appointee.  In some documents, her personal information has been redacted; in two others, it has not been.  The Personal Record Identifier (PRI) number appearing on those two documents (both performance evaluations) will be redacted.

III. Issues

22        The complainants submit that a number of grounds support a finding that an abuse of authority occurred in the following three aspects of the appointment process:  the choice of a non-advertised process, the faulty assessment of the merit criteria, and the establishment of the essential qualifications.  I will reformulate the issues, for the purposes of my analysis, as follows:

Issue I: Was there abuse of authority in the choice of a non-advertised process?

Issue II: Was there abuse of authority in the assessment of the merit criteria?

Issue III: Was there abuse of authority in the establishment of the essential qualifications?

IV. Analysis

A. Issue I: Was there abuse of authority in the choice of a non-advertised process?

23        Section 77 of the PSEA provides that an unsuccessful candidate in the area of selection for an internal 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.  As stated in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 66 and 71, an abuse of authority may involve an act, omission, or error that Parliament cannot have envisaged as part of the discretion given to those with delegated staffing authority.  Abuse of authority is a matter of degree.  For such a finding to be made, an error or omission 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 (see Tibbs, at para. 50).

24        Section 33 of the PSEA provides that the PSC (or a deputy head, as in this case, through delegation) may choose a non-advertised process.  Moreover, s. 30(4) provides that the PSC “... is not required to consider more than one person in order for an appointment to be made on the basis of merit.” In other words, as the Board’s predecessor tribunal, the Public Service Staffing Tribunal (“the Tribunal”), stated in Jack v. Commissioner of the Correctional Service of Canada, 2011 PSST 26 at para. 18, there is no right to an appointment.  Even though the sequence of events may have led to an unfortunate result for the complainants, it is not sufficient to find that an abuse of authority occurred.

25        When choosing a non-advertised process, an employer must be careful not to favour an individual and must fairly and objectively assess the candidate’s qualifications.  These issues are considered later in this decision.  The complainants did not directly make an allegation of favouritism at the hearing, but it was underlying their allegations respecting merit and the choice of process.  Therefore, I wish to directly address this point.

26        No evidence was presented about a personal relationship that would have favoured the appointee.  Her military superiors, from their testimony, did not know her before coming to the base.  They had worked with her for a period of two years, and considered this sufficient to assess her capacities, but there was nothing in the evidence presented that suggested personal favoritism.  As the Tribunal has stated in several decisions, there must be evidence demonstrating personal favouritism, and not merely allegations based on perceptions (see Carlson-Needham v. Deputy Minister of National Defence, 2007 PSST 38).

27        The appointee was working in the shipping unit when the supervisor position became available.  She already had the 3K training.  She knew that the CAT 3 training would be essential, and she moved quickly to obtain it.  The respondent’s witnesses all testified that she was the only employee on the base who was both interested and qualified for the acting position.

28        The complainants’ perception, which I gathered from Ms. Fisher’s testimony, is that the appointee seemed to have decided from the start that the position would be hers.  When the transit supervisor retired, she took his parking spot and moved her things into his office.  Because she had the first acting appointment, she received on-the-job training on training and she gained experience mentoring junior personnel.

29        However, if those things could lead to a suspicion that the appointee was being favoured, the argument is defeated by the respondent’s reaction to the two grievances related to this apparent favouritism, which was that training would be offered to all who were interested and that the indeterminate staffing would occur only once the respondent was certain that the training had been completed (or, as occurred, was no longer wanted).  The training was less than ideal, as the respondent acknowledged, but I cannot see that as a deliberate attempt to thwart the complainants’ aspirations.

30        Major McCarthy explained that a non-advertised process was used because he wanted to give the opportunity for advancement to people who had already devoted years to the base.  He explained that advancement opportunities in the ammunitions field are rather scarce, and he wanted to offer them to base employees.  At the same time, his concern was to ensure that whoever was appointed had the necessary qualifications to fill the position.  The respondent had established to its satisfaction that the appointee was the only candidate on the base who had the necessary qualifications.  This reasoning applied to both the acting position and the indeterminate appointment. I do not see it as an abuse of authority.

31        The complainants alleged that PSC policies related to acting appointments were not respected, namely, that an assessment must be completed and a notice of acting appointment must be published, both in a timely manner.  In fact, there was considerable delay completing the assessment and publishing the notice for the appointment on an acting basis, from January 31, 2015 (the starting date of the acting appointment’s extension), to June 2, 2015 (the date of assessment), and to June 3, 2015 (the notification date).  The respondent explained the delay as an administrative error.

32        In other decisions, the Tribunal often dealt with this issue and found that lateness does not amount to abuse of authority (see Soccar v. the Commissioner of the Royal Canadian Mounted Police, 2013 PSST 14; and Bérubé-Savoie v. the Deputy Minister of Human Resources and Skills Development Canada, 2013 PSST 2).

33        Although the assessment was not completed on time, the evidence is that the appointee met the essential qualifications at the start of her acting appointment and that she was appointed for that reason.  Given the length of the acting appointment, although the lateness of the notice was unfortunate, I do not believe it affected the complainants’ right of recourse.

34        Therefore, I conclude that the choice of the non-advertised process was not an abuse of authority.

B. Issue II: Was there abuse of authority in the assessment of the merit criteria?

35        The complainants were of the view that the appointee’s qualifications had not been properly assessed.  Ms. Lambert testified that she assessed the appointee for the acting appointment.  She conceded that she had no experience or specialized knowledge in the ammunitions field, but she stated that she had relied on the documentation (such as certificates), the appointee’s résumé, and the reports of the appointee’s supervisors.

36        Captain Lacea signed the assessment for the indeterminate position.  He conceded that the report had been written in advance, and that his role had consisted of confirming what had been written.  Essentially, his report was a reproduction of Ms. Lambert’s initial assessment.

37        Section 36 of the PSEA provides that the deputy head “... may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether the person meets the qualifications [of the position]...”.  The appointee had seven years’ experience in ammunition services.  The respondent introduced in evidence the appointee’s résumé and performance reviews.  I have no doubt that she met the essential qualifications of the position. Ms. Lambert spoke to the appointee’s supervisors.  Captain Lacea had supervised her work.  They both had access to information that was sufficient to establish that she did have the necessary qualifications.  There is no dispute that at all relevant times, the appointee had the two main qualifications the respondent was looking for in the indeterminate appointment:  the CAT 3 course and the 3K qualification.

38        The complainants disputed that merit had been established for some of the qualifications, specifically experience instructing civilian and military personnel at a trainee level or under on-the-job training (OJT); experience using computer software, specifically “MIMS”, which was no longer in use; experience performing disposal operations, which would be impossible for a civilian to have as only military personnel do that duty.

39        The allegation related to OJT was mainly that it would be impossible to gain such experience except through an acting position.  Major McCarthy and Captain Lacea explained that the qualification meant simply instructing personnel in training, which the appointee had done even before obtaining the acting position, according to her résumé and her supervisors.  I find it reasonable to conclude that the appointee met that qualification.

40        The respondent’s witnesses all agreed that MIMS was no longer used since it had been replaced by other software.  However, the wording gave MIMS as an example, not as a requirement.  The point of that qualification was being familiar with the inventory control of ammunition and the different software used to track it.  I have no reason to doubt the appointee met that qualification, since she had worked in that area for seven years.

41        As for ammunition disposal, I will deal with it under the third issue, which is related to the allegation of abuse of authority in the establishment of the essential qualifications.

C. Issue III: Was there abuse of authority in the establishment of the essential qualifications?

42        At first, the complainants had disputed the need for the 3K course requirement, as it appeared for the indeterminate position but not the acting position.  The respondent’s point of view on this was clarified at the hearing, and both parties agreed that the 3K course qualification was a valid requirement for the indeterminate GT-03 position, but not for the acting position.  The evidence shows that the appointee had in fact completed the training before August 2014.  She renewed her certification that month through an online test. She therefore had that qualification even before her first acting appointment, but according to the respondent witnesses, it would not have been a requirement for others who were interested in the acting appointment.

43        The one contentious issue in the essential qualifications was experience performing disposal operations.  The complainants were adamant that civilian employees do not perform any disposal operations.  Consequently, it was impossible for the appointee to have met that particular essential qualification, and it was abusive to state it as an essential qualification.

44        At the hearing, both Major McCarthy and Captain Lacea agreed that civilian employees do not perform disposal operations; they are carried out exclusively by military personnel.  However, the quoted qualification meant having some experience in the first stage of disposal, that is, the capacity to identify damaged ammunition that needs to be taken out of circulation.  The wording was unfortunate, but I do not think it made a difference in assessing the appointee.  She had experience in salvaging operations and some experience dealing with damaged or spent ammunition.  In other words, the respondent found that she had the experience it was looking for with respect to the preliminary steps to dispose of ammunition, and her résumé and performance reviews confirm as much.

45        Therefore, I find that in setting the merit criteria and in assessing the appointee, there was no abuse of authority on the part of the respondent.

V. Conclusion

46        The complainants reacted to a process that seemed a little too favourable to the appointee.  However, now that the context has been provided and the decisions have been explained, the Board cannot conclude that there was an abuse of authority.  The appointee had the necessary qualifications, especially the two main requirements according to the respondent’s witnesses, i.e., the CAT 3 training and the 3K qualification.

47        In cases in which the Tribunal found abuse of process in a non-advertised process, the evidence was that qualified employees were disregarded in favour of someone who did not have the essential qualifications (see Ayotte v. Deputy Minister of National Defence, 2009 PSST 21; and Robert v. Deputy Minister of Citizenship and Immigration, 2008 PSST 24) or that the appointee had not been assessed on all essential qualifications (see Patton v. Deputy Minister of National Defence, 2011 PSST 8; and Cameron v. Deputy Head of Service Canada, 2008 PSST 16).

48        That is not so in this case.  The appointee met the essential qualifications for the acting and the indeterminate appointments.  At the start, when the respondent knew that the transit supervisor would be replaced because of retirement, no one had received the CAT 3 training.  For some reason, the appointee received it before the others.  This might have led to a conclusion of abuse of authority, were it not for the grievance process that twice interrupted what could appear to be an unfair process of not offering the training to all interested employees, then appointing the appointee prematurely (in June 2015) before the other employees had had the chance to complete their training.  The first grievance response was to offer the training to all interested employees; the second was to cancel the indeterminate appointment in June 2015 to allow for the training of other interested employees to complete.

49        It is mainly because the respondent twice slowed the process to allow the complainants to catch up that I cannot find that there was an abuse of authority in this process.  It is unfortunate that the CAT 3 training that Ms. Fisher and Mr. Cummings received was inadequate.  I see it as an error, but the respondent sought to correct it by offering the course again.  Ms. Merkley did complete the course successfully but then declined the 3K training, which was essential for the indeterminate appointment.  The complainants did not meet the essential qualifications for the GT-03 position.  The appointee did.  The respondent did not abuse its authority.

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

 (The Order appears on the next page)

VI. Order

51        The complaints are dismissed.

May 1, 2017.