FPSLREB Decisions

Heard at Toronto, Ontario,
February 16 and 17, 2017.

REASONS FOR DECISION

I. Introduction

1        Tyson George, the complainant, participated in an internal advertised appointment process held by the Canada Border Services Agency (the “respondent” or the “agency”) for a position as a liaison officer (“LO”) in missions abroad. As a result of this process, he was placed in a partially assessed pool, as he met all the essential qualifications save one, the bilingual imperative language requirement that was set at level BBB.

2        The complainant was eventually eliminated from the pool, as he missed the deadline for the second language evaluation (SLE). In late November 2014, the respondent posted on the Publiservice website the Information Regarding Acting Appointments (IRAAs) of several LOs. The complainant filed two complaints, one of which was withdrawn at the beginning of the hearing. The remaining complaint related to the acting appointment of Martina Marsh (“the appointee”).

3        After a rather confusing response to the complaint, the respondent raised for the first time at the hearing an objection to the complaint based on the Public Service Labour Relations and Employment Board (“the Board”) lacking jurisdiction.

4        For the reasons that follow, I find I do not have jurisdiction to decide this complaint. However, after hearing the evidence over two days and studying the various documents that were filed, I believe the complainant is entitled to a more detailed decision than he would have received had the respondent clearly stated its position from the start. Instead, both the complainant and the Board faced considerable obfuscation from the respondent.

5        The Public Service Commission (PSC) filed written submissions but did not appear at the hearing.

II. Background

6        The complainant testified at the hearing. The respondent called two witnesses, Jim Bissett, director of the International Operations Division, and Susan McKinnon, now retired, who was the manager of LO network development within the International Region Directorate at the time of the appointment process. The evidence is summarized below.

7        The complainant first worked with the Immigration department (then Citizenship and Immigration Canada (CIC)), which has become Immigration, Refugees and Citizenship Canada (IRCC). He became an employee of the respondent when it was created in 2003. In 2006, he was deployed to its national headquarters as a senior analyst, and he became a director in organized crime intelligence.

8        From 2008 to 2012, he was a migration integrity officer at the Canadian consulate in Miami, Florida, classified at the FS-2 group and level (“FS” is the Foreign Service classification). In 2011, the job title “migration integrity officer” changed to “liaison officer”. In a mission abroad, such a position can be classified at the FS-2 or FS-3 group and level. Migration integrity officer positions had been filled by CIC employees before the agency was created. After 2003, they were primarily filled with the respondent’s employees, although CIC or IRCC employees could fill them, if there were an insufficient number of qualified agency employees. LOs are mainly responsible for enforcing border security rules, such as verifying the documentation of foreign visitors or immigrants to Canada.

9        Employees filling LO positions do so only for a certain period of time. At all times, they retain their substantive positions in Canada. The complainant explained that these positions, in missions abroad as part of the foreign service, are coveted within the agency. Traditionally, selections for these positions were made on a manager’s recommendation, as happened to the complainant in 2008. An initial posting of two or three years could be extended by a year, or a second posting could occur, called a “cross-posting”, under which the LO would be placed in another mission for a second term of two or three years.

10        In 2011 or 2012, Arianne Reza, the new director general for the newly formed International Region Directorate, announced that LOs would no longer receive cross-postings.

11        In 2013, the respondent posted a job opportunity advertisement for an appointment process for FS-2 and FS-3 LOs. Mr. Bissett explained that the respondent sought to create a more transparent process for recruiting LOs. This process was open to agency employees whose substantive positions were at least at the FB-5 level (“FB” is the Border Services classification). The complainant’s substantive position is at the FB-6 level. Mr. Bissett testified that the president of the agency at the time, Luc Portelance, had imposed two requirements for LOs: a minimum classification level of FB-05 (roughly at the same salary level as an FS-02), and a bilingualism imperative at a minimum level of BBB. This was the first time that a bilingualism requirement was imposed on all candidates, without regard to the language of the country where they would be posted.

12        The job opportunity advertisement stated that a pool was being created for LOs for missions abroad. The term of appointment was three years. Mr. Bissett explained that in fact, the plan was to have postings of three years, followed by cross-postings for another three years (the “3-year/3-year” plan).

13        Posting employees abroad involves considerable expense and logistics, in addition to the training required. It is more economical for the agency to cross-post an employee than to restart the process entirely with a new appointment. That said, it was clearly stated to the managers that there was to be a six- or seven-year limit (a one-year extension in the same posting was also possible) to postings abroad, to ensure that the successful candidates would return to their substantive positions in Canada after a maximum of seven years. The job opportunity advertisement did not mention cross-postings. The complainant testified that the respondent had never informed him that it now considered cross-postings favourably.

14        The complainant learned in March 2014 that he had successfully completed all the steps to be placed in a partially assessed pool from which LOs would be chosen for yearly rotations. Such postings generally occur at the end of the summer, but the selection is done much earlier, to allow for training during the spring and for obtaining the required approval from both IRCC and Global Affairs Canada (formerly known as the Department of Foreign Affairs and International Trade) for each posting. Only after that approval is received from both departments does the candidate receive a letter of offer.

15        In March 2014, the complainant was told that the pool was valid until December 2016. This was changed in a further email, dated June 16, 2014, in which the respondent stated that the pool was valid until December 2015. Ms. McKinnon testified that the intent had always been for the pool to be valid until December 2015; an administrative error had slipped in, and it was corrected by June 2014.

16        The complainant was placed in a partially assessed pool because he had not yet obtained BBB in the SLE. In March 2014, he was given the option of waiting for the next rotation, in 2015, to have more time to study for the SLE. For the 2015 rotation, a deadline for SLE results was set at October 31, 2014, as the selection was to be done in November 2014, as stated by Ms. McKinnon at the hearing.

17        The complainant planned to study for the SLE during the summer of 2014, as it was scheduled for September. However, he could not attend French courses as planned, as his mother suffered an accident and required care, for which he took time off. At his first attempt, in September 2014, he failed. He had to wait a month to retake the SLE exam, as per the PSC’s rules. He finally passed on November 13, 2014.

18        Mr. Bissett first thought this would be acceptable, given the complainant’s particular family circumstances. However, the human resources section was inflexible. It stated that it was unfair to other candidates who had been told that only one test session would be held for all essential qualifications, including language, and who had bowed out of the pool because they did not hold the BBB level in their second language by October 31.

19        The complainant challenged the appointee’s appointment. She was selected in spring 2014 for the 2014 rotation, before she was evaluated for the BBB level in her second language. She had held that level previously, but her language results had lapsed, and an SLE was necessary. She was retested in July 2014 and was appointed by a formal letter of offer starting September 5, 2014, for a three-year term.

20        The complainant also found out that a number of LO positions would be filled by cross-postings. A number of the persons thus cross-posted did not have the FB-05 minimum level, the BBB SLE results, or both.

III. The complaint and the preliminary procedures

21        In his complaint, the complainant raised the fact that it seemed that the requirements that were applied to those who had responded to the advertised process had not been applied to those who were offered LO positions through cross-postings. Those requirements were the minimum FB-5 classification and bilingualism at the BBB level. According to the complainant, the fact that the same criteria were not applied to cross-postings constituted an abuse of authority. He also raised the issue that the appointee was selected before having achieved valid SLE results.

22        The respondent’s reply was that the LO positions were “… historically staffed via selection processes conducted by the Department of Citizenship and Immigration (CIC)”. It went on to state the following: “In 2014, Liaison Officers who were successful in prior CIC-led selection processes were therefore offered ‘cross-postings’ (subsequent acting assignments in other geographic locations) …”. Finally, the respondent submitted that cross-postings were excluded from the application of merit and that there could be no recourse against them by virtue of s. 17 of the Public Service Employment Regulations(SOR/2005-334; PSER). That section deals with rotational acting appointments. I will return to the text and the application of that provision later in this decision.

23        A first pre-hearing conference was held in June 2016. I asked the PSC for submissions on the apparent contradiction of an advertised appointment process coexisting with appointments shielded from recourse. The parties were asked to submit an agreed statement of facts as a basis for this opinion.

24        The parties were unable to agree on a joint statement of facts. In fact, the statements were so contradictory that I determined that a hearing would be necessary, and one was held in February 2017.

25        The respondent submitted its statement of facts on June 24, 2016. The complainant reviewed it and provided his statement of facts on July 4, 2016. I present in the following paragraphs some statements made by the respondent, the complainant’s point of view, and the evidence from the hearing.

26        The respondent made the following statement about the LO network:

The International Region (IR) in CBSA [the agency] was created April 1, 2011. At this time, the International Liaison Officer (LO) network was managed by Citizenship and Immigration (CIC) and to some extent CBSA.

CIC ran the LO rotational selection process in 2011. A Memorandum of Understanding (MOU) governed the roles and responsibilities of CBSA and CIC with regards to the Liaison Officer Network. The last such MOU, signed on June 29, 2012refers to a transition period which would allow the CBSA to take on the full responsibilities for staffing the positions on a go forward basis.

27        The complainant expressed the following point of view on the LO network:

Prior to the creation of the Canada Border Services Agency (CBSA) in 2003, the Migration Integrity Officer [the title became Liaison Officer in 2011] Network was managed by Citizenship and Immigration Canada (now Immigration, Refugees and Citizenship Canada), the federal department that was responsible for Canada’s immigration enforcement activities.

When the CBSA was created, an order-in-council was passed to transfer specific immigration responsibilities from CIC to the CBSA....

The authorities designated to Liaison Officers under the Immigration and Refugee and [sic] Protection Act and Regulations are delegated by the Minister of Public Safety and Emergency Preparedness, not the Minister of Citizenship and Immigration.

Subsequent to its creation, the CBSA took over the management, priority setting, and policy responsibility of the Liaison Officer Network....

From 2003 to 2013, Immigration, Refugees and Citizenship Canada did not run a competitive advertised process for a Migration Integrity Officer or Liaison Officer (LO) position. These positions were filled by candidates selected and deployed by the CBSA... Often, when the CBSA could not staff these positions with their own employees, Foreign Service employees of IRCC were selected to do so, without competition.

[Emphasis in the original]

28        At the hearing, Mr. Bissett confirmed the complainant’s version. From the time of its creation, the agency had been responsible for the LO network (first for migration integrity officers, then for the LOs) with respect both to recruitment and to placing the LOs. Approval was needed to place them in missions abroad from both IRCC and Global Affairs Canada, as well as the head of mission, but it was clear that the agency was in charge of the LO network. The MOU referred to by the respondent defined roles and responsibilities in immigration matters but did not alter the agency’s responsibility for the LO network.

29        The respondent stated the following in its statement of facts about cross-postings:“In 2014, Liaison Officers who were successful in prior CIC-led processes were offered ‘cross-postings’ (subsequent acting assignments in other geographic locations) by the CBSA.”

30        The respondent’s counsel and Mr. Bissett corrected that statement at the hearing, stating that cross-postings were offered in 2014 to LOs who had been successful in prior agency-led processes.

31        The respondent stated the following in its statement of facts on the future of cross-postings: “The last group of employees who are currently affected to LO positions on cross-postings will return to their substantive positions in April 2017. No other cross-postings will be made in CBSA.”

32        This statement was flatly contradicted at the hearing. Mr. Bissett testified that cross-postings and extensions were the preferred mechanism to fill positions abroad, given that the incumbents already had the training and the experience. At the time at issue, the respondent favoured the 3-year/3-year formula, with a return to Canada after those six years. The pool created by the advertised process was used to fill remaining vacancies. According to both the complainant and Mr. Bissett, it seems that in years past, the formula more generally used had been a two-year posting, a one-year extension, and a two-year cross-posting.

33        From July 4, 2016, to the beginning of the hearing on February 16, 2017, the respondent made no correction to its statement of facts. The complainant prepared a great deal of documentation to set the record straight. At the start of the hearing, the respondent’s counsel conceded that there were several errors in the respondent’s statement of facts.

34        In its submissions on the interaction of an advertised process and s. 17 of the PSER, the PSC submitted that despite the fact that the agency held an advertised process, s. 17 would apply to positions in a rotational system and would exclude such positions from recourse under s. 77 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).

35        Section 17 of the PSER 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.

36        The French version reads as follows:

17 Malgré les articles 14 à 16, les nominations intérimaires à tout poste établi dans le cadre d’un système de permutation créé par l’administrateur général afin de pourvoir au déplacement au Canada et à l’étranger des fonctionnaires des administrations ci-après sont soustraites à l’application des articles 30 et 77 de la Loi :

a) le ministère de la Citoyenneté et de l’Immigration;

b) le ministère des Affaires étrangères et du Commerce international;

c) l’Agence des services frontaliers du Canada.

37        That section is a regulation made by the PSC under s. 22(2)(c) of the PSEA, which allows the PSC to exclude acting appointments “... from the operation of any or all of the provisions of this Act ...”. In its submissions, the PSC quoted from the “Regulatory Impact Analysis Statement” (RIAS) that appeared when the PSER were published in the Canada Gazette. RIASs are included to explain the policy intent behind new regulations. With respect to acting appointments to rotational positions, the following statement appeared in that RIAS:

…

Special provision is made for acting appointments to rotational positions, which will be excluded from merit, statutory priorities, notification and recourse to the Public Service Staffing Tribunal [now the Board]. A rotational position is one which is part of a rotational system established by the deputy head for the purpose of providing for the movement of employees within and outside Canada for the Department of Citizenship and Immigration, Department of Foreign Affairs and International Trade and the Canada Border Services Agency.

…

38        As to the interaction between an advertised process and s. 17 of the PSER, the PSC stated that excluding acting appointments to rotational positions did not preclude using an advertised process to find qualified personnel. However, any reference made to recourse under s. 77 of the PSEA was voided by the operation of s. 17 of the PSER.  

39        In its submissions filed for the purpose of the hearing, the PSC reiterated that if s. 17 of the PSER applied, then the Board would not have jurisdiction to hear the complaint. The PSC did not take a position on whether that section applied to this complaint and left that decision to the Board.

40        In its closing argument on February 17, 2017, the respondent raised for the first time the issue that all the appointments made to the LO network were covered by s. 17 of the PSER.

41        The respondent argued that the recruitment and placement of LOs in missions abroad was exactly the rotational system referred to in s. 17 of the PSER and that consequently, there was no recourse before the Board, despite the fact that the appointee’s letter of offer referred to the right to recourse, as did the IRAA announcing Ms. Marsh’s acting appointment.

42        The complainant argued that the use of cross-postings, which allowed the respondent to avoid applying the essential qualifications criteria to those who were cross-posted, was in itself an abuse of authority, especially since the respondent had utterly lacked transparency in explaining how cross-postings worked. The advertised process was meaningless if the whole of the process could not be subject to recourse before the Board.

IV. Issue: Jurisdiction of the Board

43        The Board’s jurisdiction is defined by s. 88 of the PSEA. The Board is to consider and dispose of complaints made under ss. 65(1), 74, 77, and 83. Section 77 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.

44        As stated earlier, the PSC has authority under s. 22 of the PSEA to exclude certain acting appointments from any section of the PSEA, including section 77. As noted earlier, s. 17 of the PSER specifically excludes “... an acting appointment to a position in a rotational system ...” allowing agency employees to move to and from Canada.

45        For the jurisdictional issue before me, I must examine the facts presented in this case to determine whether s. 17 of the PSER applies.  Does the evidence before me lead to a finding that the LO system is “... a rotational system established by the deputy head, in order to provide for the movement of employees within and outside Canada ...”?

46        The term “rotational” is not defined in the PSEA or the PSER. If a dictionary is consulted, the closest meaning applicable in this context would be as an adjectival form of rotation in the sense of “tour of duty” (Canadian Oxford Dictionary, second edition, 2004). The term used in French is permutation, defined as “échange d’un emploi, d’un poste contre un autre” (Petit Robert, édition 1993).

47        The evidence presented by both the respondent and the complainant, viva voce and documentary, confirms that the LO positions, including the appointee’s LO position that is the subject of this complaint, are rotational in nature. The explanation given by Mr. Bissett was a temporary posting outside of Canada to a position classified in the FS category that does not lead to a substantive position. An incumbent of an LO position will return after his or her posting (and perhaps cross-posting) to his or her substantive position in Canada. The evidence further confirms that the agency annually determines the missions abroad where LO vacancies exist, and fills these positions accordingly.

48        I find that the LO positions are part of a rotational system. From the evidence adduced, they are temporary (in the sense of being for a limited duration) positions that do not represent the substantive positions of the agency employees thus employed. In the case of the agency, another classification is used (FS and not FB), and the person is placed temporarily in another position with another position number. In other words, they are assigned new duties, but they are not appointed to another position.

49        The fact that the respondent chose to proceed with an advertised process did not change the nature of the position. The advertisement announcing the appointment process states that the type of action resulting from the process would be “acting, assignment”. The temporary nature of the position is emphasized by the following statement: “An assignment or an acting appointment is a temporary resourcing option. Therefore, the approval of your substantive Director General will be required before an offer can be made”. In other words, the chosen candidate continues to be the incumbent of his or her substantive position, and he or she will be expected to return to it once the posting abroad is completed.

50        In line with the definition of “acting appointment” found at s. 1 of the PSER, which is “... 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 ...”, the PSC adopted s. 17 of the PSER to cover temporary postings to missions abroad when such a posting is at a classification above the person’s substantive position. If the rotational posting is at-level, there is no appointment and therefore no recourse (see Kachmar v. Deputy Minister of Foreign Affairs and International Trade, 2016 PSLREB 70). In other words, if the staffing action concerning Ms. Marsh were an assignment, the complainant would have no recourse to the Board under the PSEA. However, according to the complainant’s documentary evidence, the appointee occupied an FB-05 substantive position, and was posted as an FS-03 to a mission abroad. I have evidence that an FB-05 salary is roughly equivalent to an FS-02. Since Ms. Marsh’s posting was not at-level, I find that the staffing of the appointee constituted an acting appointment rather than an assignment.   

51        Given my findings that Ms. Marsh’s appointment constituted an acting appointment to a rotational position pursuant to a rotational system of posting employees to missions abroad, to carry out the agency’s mandate outside Canada, I conclude that Ms. Marsh’s appointment is excluded from the application of s. 77 of the PSEA by virtue of s. 17 of the PSER. Thus, the Board has no jurisdiction to hear or decide this complaint.

V. Additional Comments

52        I do not have jurisdiction, but the respondent’s behaviour in dealing with this complaint warrants a few comments.

53        The complainant was not provided with a proper response to his legitimate concerns. He had been told there would be no further cross-postings. Mr. Bissett testified that cross-postings were the preferred method of selection. The evidence the respondent provided at the hearing confirmed Mr. Bissett’s version. The respondent provided no explanation for this glaring contradiction, which emanated from senior management.

54        The respondent kept changing its language requirements, so through ill luck, the complainant was penalized and disqualified. Prior to the 2013 process, bilingualism was not imperative. For the 2014 rotation, the selection was made before the SLE results had been received. For the 2015 rotation, the one to which the complainant could aspire, an arbitrary deadline was set at October 31. The complainant missed it by 13 days. No deadline had been set for SLE results in 2014 when Ms. Marsh was selected despite not having the qualification. The respondent strongly insisted that she was qualified at the time of appointment. The deadline was rigidly applied in the complainant’s case, despite circumstances that could have been taken into account. Moreover, he would have been qualified at the time of his appointment, exactly as Ms. Marsh had been. Finally, cross-postings did not take language requirements into account, and Mr. Bissett testified that as of 2016, the essential qualifications no longer included bilingual imperative for all LO positions.

55        The complainant has worked for the agency since its inception. He is a manager, and by all accounts, an excellent employee. He should know what the policies of his employer are, and how staffing decisions for postings to missions abroad are made. He was never informed that cross-postings were still used within the agency, despite Ms. Reza’s pronouncement. He was never told that the agency had changed its views and had established a 3-year/3-year posting and cross-posting mechanism. Obviously, no strategy was put in place to communicate this information to employees, despite their manifest interest.

56        The respondent’s response to the complaint was woefully inadequate. The statement of facts was riddled with mistakes. Crucially, the complainant was never told that s. 17 of the PSER applied not only to cross-postings but also to appointments from the qualified pool. This argument was made at the hearing. It should have been articulated from the start. The matter could have been decided on the basis of written submissions had the respondent provided solid facts and a thoughtful legal argument. Instead, it invoked obscure and non-existent arrangements with CIC. The changing rules, the absence of communication, and the faulty information provided both to the complainant and to the Board all added up to a situation which lent an air of reality to the complainant’s allegations of abuse of authority.

57        It was irresponsible for the respondent to refer to the right of recourse of candidates, in the IRAA published on Publiservice and in the letter of offer to the appointee, despite the fact that this right did not exist because of s. 17 of the PSER.

58        In sum, the respondent’s haphazard response to the complaint is mind-boggling and indeed remains unexplained. However, in the end, I must reiterate that I do not have jurisdiction to decide the complaint because an LO position at a mission abroad is either an assignment that cannot be the subject of a complaint (see Kachmar) or an acting appointment covered by s. 17 of the PSER.

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

VI. Order

60        The complaint is dismissed for lack of jurisdiction.

March 22, 2017.