FPSLREB Decisions

REASONS FOR DECISION

I. Introduction

1        The complainant, Stella Goncalves, was the unsuccessful candidate in the internal non-advertised process for an acting appointment (numbered 15-RCM-ACIN-P-E-SUR-ISOC-MCS-51651) to the position of supervisor of the National Sex Offender Registry (NSOR) at the AS-02 group and level in the Royal Canadian Mounted Police (RCMP) (Public Service Employees) - “E” Division - Major Crime Section, Behavioural Sciences Group, in Surrey, British Columbia.

2        The complainant alleged that the respondent abused its authority in the application of merit by making errors in how the appointee was found to have passed the essential qualifications of the knowledge-based assessment. In her allegations of July 15, 2016, with respect to file EMP-2016-10487, she also alleged bias, however, she did not lead any evidence on the issue and did not pursue it in closing arguments. Therefore, the allegation of bias will not be referred to again in this decision.

3        TheCommissioner of the RCMP (“the respondent”) denied the allegation, maintained that the assessment board acted appropriately, and stated that the successful appointee met the essential qualifications.

4        The Public Service Commission (PSC) did not attend the hearing. It did submit detailed written submissions that discuss the regulatory and policy framework that underpin appointment processes in the federal public service. I note that the PSC took no position on the merits of the allegations in this matter.

5        The respondent, in a foreboding way, referred to the appointment process as “informal”. For the reasons that follow, I find that the complainant established with clear and cogent evidence that the respondent paid little notice to the appointment formalities set out in the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the Act”); composed a written narrative supporting the appointment that contained a false statement supporting an essential qualification; failed to assess or make a record of the assessment of an essential qualification; and erroneously found that the  appointee met all the essential qualifications.

6        Based upon these many errors, omissions, and disregard for the Act, I find that an abuse of authority occurred, and I order the respondent to revoke the acting appointment.

7        Three complaints were filed about this acting appointment and its recent extensions. File EMP-2015-9876 refers to the acting appointment from April 14, 2015 to June 3, 2016. File EMP-2016-10487 refers to the subsequent acting appointment, which is commonly known as an extension, from June 4, 2016 to September 2, 2016. File EMP-2016-10673 refers to a further extension of the acting appointment from September 3, 2016 to January 1, 2017. The first complaint was filed on July 22, 2015 and the subsequent complaints were filed on June 7, 2016 and September 12, 2016 pursuant to s. 77(1)(a) of the Act.

8        The first two complaints were consolidated by the Public Service Labour Relations and Employment Board on June 27, 2016.

9        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board to become the Federal Public Sector Labour Relations and Employment (“the Board”).

II. Background

10        The complainant has approximately 14 years of experience in the public service. She spent the past four years working in the RCMP’s NSOR office in Surrey. She testified that she is a competitive person, that she works hard at her job, and that she takes her duties seriously.

11        The scheduled maternity leave for the NSOR’s incumbent manager was suddenly advanced, and management decided that it had to move very quickly to fill the acting NSOR manager position. Two candidates submitted resumes for the unadvertised appointment, and they were given one day’s notice of their interviews. The candidates were interviewed on the same morning at 9:00 a.m. and 11:00 a.m., respectively.

12        Two members of the assessment board each prepared a list of interview questions on their own. The third board member, Lisa Cheung, who was the manager of administrative staff in the RCMP’s Major Crimes office in Surrey, stated that her role was largely to ensure that the necessary paperwork was prepared for the process and to liaise with the Human Resources branch for support. After the assessment board retired for very brief deliberations over lunch, the complainant was advised at 2:00 p.m. that same afternoon that she had not been successful.

13        The complainant testified that her manager, Sergeant Felker, who chaired the assessment board, told her that although she was fully qualified, she was not given the appointment as it was felt that her friendships with her office colleagues would make the supervisor duties difficult for her to perform.

14        Counsel for the respondent objected to some of the questions being posed to the two witnesses, stating that they were related to allegations that are not in the original complaint. While not specifically citing the case, counsel cited the principle widely followed from Burchill v. Attorney General of Canada,[1981] 1 F.C. 109 (C.A.), which prohibits altering the substance of a grievance after it is referred to adjudication. Upon my review of the complaints, I rejected the objection, as the second complaint directly addresses the matter of the appointee erroneously having been found to have passed her written exam. Therefore, the respondent had clear and obvious notice of this aspect of the complainant’s allegations.

III. Analysis

15        Subsection 77(1) of the Act provides that an unsuccessful candidate in the area of selection for an internal appointment process may make a complaint to the Board that he or she was not appointed or proposed for appointment because of an abuse of authority. The complainant had the burden of proving that on a balance of probabilities, the respondent abused its authority (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 49 and 55).

16        Subsection 30(1) of the Act states that appointments from within the public service must be made on the basis of merit. Paragraph 30(2)(a) of the Act states that an appointment is made on the basis of merit when the person to be appointed meets the essential qualifications for the work to be performed as established by the deputy head.

17        “Abuse of authority” is not defined in the Act;however, s. 2(4) offers the following guidance: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

18        As noted by Chairperson Ebbs of the Board in her recent decision, Ross v. Commissioner of the Correctional Service of Canada, 2017 PSLREB 48 at para. 14, the Board and the former Public Service Staffing Tribunal (PSST) have established that s. 2(4) of the Act must be interpreted broadly.

19        This means that the term “abuse of authority” must not be limited to bad faith and personal favouritism. In Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 21 and 38, the Federal Court confirmed that the definition of “abuse of authority” in s. 2(4) of the Act is not exhaustive and that it can include other forms of inappropriate behaviour.

20        The nature and seriousness of the improper conduct or omission will determine whether it constitutes an abuse of authority. See Tibbs, at para. 66.

A. Did the respondent abuse its authority in the assessment of the appointee’s qualifications?

21        The statement of merit criteria (SOMC) established for this acting appointment listed the essential qualifications, which included the following:

KNOWLEDGE:

1. Knowledge of legislation, policy and procedure of database integrity and security requirements in the RCMP
2. Knowledge of the NSOR and related Sex Offender Information Registration Act

22        The assessment board established an oral examination of 17 questions, of which only 1 addressed the essential knowledge qualifications pertaining to the policies and legislation that created the NSOR. A second knowledge question asked the candidates to describe database integrity and security, but I consider it more of an information technology question rather than one dealing with the substance of the NSOR.

23        Given this finding, question Q3 on the second page of the interview questions was the only one asked in the entire assessment review process to ensure that the candidates had adequate working knowledge of the policies and legislation that were the sole reason for the existence of the position that was being filled.

24        The only witness other than the complainant to testify was Lisa Cheung, who was called by the respondent. She has 25 years of public service experience and has spent the last 2.5 years as the manager of administrative staff. Ms. Cheung presented as a consummate professional and was an excellent witness in that she had clear memories of the events in question and she provided direct and sure responses to the questions posed by both parties.

25        When presented with her interview notes, Ms. Cheung acknowledged that Ms. Rhodes stated in response to question Q3 that she was not sure of the answer and that she had simply guessed.

26        The complainant gave uncontested testimony that in contrast to her detailed reply to this question, the very brief response Ms. Rhodes gave to question Q3 was factually incorrect.

27        Having established that Ms. Rhodes provided an incorrect guess in response to what I have found was the only substantive knowledge question on the whole exam, the hearing then looked at the narrative assessment document that Ms. Cheung wrote to summarize the assessment of each candidate. When presented with that narrative, Ms. Cheung read the statement in it of the assessment of Ms. Rhodes’ reply to knowledge question Q3, as follows: “Hannah is able to thoroughly explain Exemption Order and Termination Order as they pertain to NSOR and related SOIRA legislation.”

28        The significance of the problem with the appointee not being able to correctly answer the only substantive knowledge question is captured in the narrative as it concludes on this point by making the following statement, “These are the main Acts and Regulations that this unit uses on a daily basis.”

29        In further cross-examination on this same point, Ms. Cheung testified that the assessment board did not discuss the candidates’ responses to question Q3 or to any other question but that she inferred from the lack of discussion that there were no problems and that the appointee must have known of the relevant legislation and policies because she had been working in the NSOR unit.

30        Ms. Cheung also stated that written assessments of the interviews from the other two board members were not available to her to help her draft the narrative assessment. She also testified that no answer or marking key was prepared for the assessment to help determine the accuracy of the responses.

31        It is important to note that not only were the interview notes of the other two members of the assessment board not available to Ms. Cheung to compose the narrative, but also that these notes were still not available for the respondent to produce at the hearing. Despite having known since July 22, 2015, that this appointment was the subject of a complaint under the Act, in the following 21 months, the respondent was unable to take control of the notes and produce them at the hearing.

32        I draw an adverse inference from this troubling fact, and given the other evidence before me, I question whether the other two board members even made notes during the interviews.

33        When asked to explain the rationale behind Ms. Rhodes’ appointment, Ms. Cheung testified that the unit that the appointee was to manage had four experienced analysts and three vacancies. She explained that the unit’s senior manager, Sgt. Felker, was concerned that with the need to hire three new analysts to fill vacancies, it was very important that the appointee possess the personal suitability necessary to train new staff and integrate them into the office.

34        Ms. Cheung further explained that the board was impressed by the fact that Ms. Rhodes had given music lessons to children and that she had explained in her interview that doing so had allowed her to gain experience in overcoming challenges by finding teaching methods that met the needs of different students. Ms. Cheung repeated how important it was to the hiring manager that the new unit manager be able to properly train incoming staff filling the unit’s vacancies. I note the complainant’s uncontested testimony that after the appointment was made, she was asked to assist with training new staff in the unit.

35        In cross-examination, Ms. Cheung also testified that because she did not have any assessment notes from the other two board members, she reviewed the office files and used a performance evaluation of Ms. Rhodes to help her draft the narrative assessment. This fact and the evaluation itself had not been disclosed to the complainant. She also acknowledged that the board had no document that showed the rationale behind which exam and interview questions satisfied which essential qualification on the SOMC.

36        The PSST established quite some time ago in a decision rendered by Chairperson Giguère that the appointee “must meet the essential qualifications for the work to be performed.” (see, for example, Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 44 at para. 35).

37        Chairperson Ebbs confirmed that again recently in Ross in which she found that the evidence before her did not establish that the appointees met all the essential qualifications. Therefore, she found that an abuse of authority had occurred in the application of merit. (See Patton v. Deputy Minister of National Defence, 2011 PSST 8, and Ayotte v. Deputy Minister of National Defence, 2009 PSST 21, for similar findings).

38        The complainant relied upon Rochon v. Deputy Minister of Fisheries and Oceans, 2011 PSST 7 at paras. 72 and 73, to argue that careless errors in assessing essential qualifications have been found to be abuses of authority.

39        The respondent cited 25 cases in argument. The more relevant of them correctly note that an employer may establish essential qualifications that it considers necessary having regard to the nature of the work to be performed and the current and future needs of the workplace. The respondent also correctly noted that it is not my role to reassess candidates. Both propositions are well established in the Board’s jurisprudence and are not at issue in the facts before me.

40        It is well established indeed that a hiring manager has wide latitude to establish essential and asset qualifications tailored to the specific operational needs of his or her workplace. The deputy head also has considerable flexibility to determine the right-fit criteria and the candidate that best fits them. However, once these criteria are established, and when called to account, the respondent must be able to show that the criteria have been assessed and met.

41        In particular, the respondent argued that this Board should not intervene if there is no evidence of a serious error, omission, or improper conduct, as the PSST established in Portree v. Deputy Head of Service Canada, 2006 PSST 14 at para. 52.

42        The respondent also submitted that I should find that the assessment board found the appointee’s answers more complete, that the explanation of the assessment in evidence before me was straightforward and reasonable, and that the evidence explained how the board worked to reach consensus to assess candidates and establish marks as in Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7 at para. 70.

43        The respondent argued that the threshold for finding an abuse of authority is high and that I must find that a serious transgression occurred to support a finding of abuse of authority (see Portree, at para. 46, which relies upon Tibbs).

IV. Conclusion

44        The evidence before me established that the respondent did not adequately assess the merit criteria. The appointee clearly did not meet all the established essential qualifications. The respondent could not produce interview notes from the two technical knowledge experts on the assessment board. The assessment board’s members did not discuss their findings once the interviews concluded. Contrary to the Act, the appointee did not possess the essential qualification of sound working knowledge of the legislation and policies that direct the NSOR’s operations. The board did not even discuss the clearly incorrect knowledge question that was linked to an essential qualification (although the board did not document that link, I accept the testimony to this effect). This matter should have been discussed and should have been found to remove the appointee from consideration for appointment.

45        Given my findings, which are based upon clear and compelling evidence, I conclude that the complainant established on a balance of probabilities that a series of serious errors and omissions occurred in that the appointment of Ms. Rhodes that amount to an abuse of authority in the application of merit.

46        In my determination of there being an abuse of authority, I note the clear and compelling evidence of the blatant nature of the errors and the significant impact they had upon the outcome of the appointment process. I also note the gravity of the duties of the position in question in this matter. If I were to find that these serious errors did not amount to an abuse of authority, as the respondent suggests, I believe public confidence could be eroded in the functioning of the sex offender registry, which is an important tool in our law-enforcement efforts to keep citizens safe from dangerous individuals who are subject to the registry’s requirements.

47        For all of the above reasons, I make the following order:

VI. Order

48        I find that an abuse of authority occurred in the appointment process at issue.

49        I order the respondent to revoke the acting appointment, of Hannah Rhodes to the position of supervisor of the National Sex Offender Registry (appointment 15-RCM-ACIN-P-E-SUR-ISOC-MCS-51651).

June 26, 2017.

Bryan R. Gray,

a panel of the Federal Public Sector Labour Relations and Employment Board