FPSLREB Decisions

Heard at Abbotsford, British Columbia,
August 29 and 30, 2017.

REASONS FOR DECISION

I. Introduction

1        Ghalib Dhalla, the complainant, filed a complaint of abuse of authority concerning the appointment of Cari Turi to the position of assistant deputy commissioner, integrated services (ADCIS), classified EX-02 (“the ADCIS position”), with the Correctional Service of Canada (CSC) in Abbotsford, British Columbia.

2        The complainant alleges that the Commissioner of the CSC (“the respondent”) abused its authority in the choice of a non-advertised process and in the application of merit for the appointment. He claims that there was favouritism shown towards Ms. Turi and that the respondent misled him before making the appointment, which is why he was not considered for the position.

3        In addition, the complainant originally alleged that he was not appointed because of his race and therefore that there was discrimination. However, he withdrew this allegation at the hearing.

4        The respondent denies that abuse of authority occurred. It states that the choice of a non-advertised process respected the core staffing values, including merit, and that the appointee was fully assessed and found to meet the qualifications of the position. It also states that there was no favouritism and that the complainant was not misled.

5        The Public Service Commission (PSC) did not appear at the hearing but presented a written submission in which it discussed its relevant policies and guidelines. It took no position on the merits of the complaint.

6        For the reasons that follow, the complaint is dismissed. The complainant has not established that the respondent abused its authority in the appointment process at issue. However, I note that he has shown that the respondent did mislead him by not informing him in a timely fashion that an EX-02 pool for which he had been found qualified had expired.  As a result, he did not apply on a subsequent EX-02 process that may have enabled him to be appointed into this or other positions.  He was also advised to withdraw from a leadership development program without due consideration of the impact that this decision would have on his availability to be appointed to an EX-01 position in the future. However, these issues are separate from the staffing decision to appoint Ms. Turi.

II. Background

7        The respondent launched a non-advertised internal appointment process to staff the ADCIS position in the CSC’s Pacific Region when it became vacant in November of 2014.

8        On January 8, 2015, a “Notice of Consideration” (NOC) was issued specifying that Ms. Turi was being considered for the ADCIS position.

9        A second notification was posted on May 29, 2015, for Ms. Turi’s indeterminate appointment.

10        The complainant filed a complaint of abuse of authority on June 15, 2015, with the Public Service Labour Relations and Employment Board under s. 77 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).

11        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 and the title of the Public Service Labour Relations and Employment Board Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”) and the Federal Public Sector Labour Relations and Employment Board Act.

III. Issues

12        I must determine the following issues:

1. Was there abuse of authority in the choice of a non-advertised process?
2. Was there abuse of authority in the evaluation of Ms. Turi?
3. Was there abuse of authority due to personal favouritism?
4. Was there abuse of authority because the respondent misled the complainant?

IV. Analysis

13        Section 77(1) of the PSEA provides that a person in the area of recourse may make a complaint to the Board that he or she was not appointed or proposed for appointment because of abuse of authority. Although the term “abuse of authority” is not defined in the PSEA, s. 2(4) states as follows: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

14        A complainant bears the burden of proof in a complaint of abuse of authority. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 48 to 55.

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

15        The complainant testified at the hearing on his own behalf. He explained that he has been a CSC employee since 1984. Since 2009, he has been classified at the AS-07 group and level, and his title is Regional Manager, Policy Planning, Pharmacy and Quality Improvement, Pacific Region. He explained that he has received several awards and recognition over the years for his contributions to the CSC. He is also a member of a visible minority group. He testified that he was born in Tanzania and that he is of South Asian origin. His ancestors moved there from India before he was born.

16        In 2011, the complainant participated in the Executive Leadership Program. It allowed him to maintain his substantive position and to take on assignments in the EX group classification.

17        In April of 2012, the complainant was placed in a pool of qualified candidates for a number of EX-02 positions.

18        When the Regional Director, Health Services, retired in 2012, the complainant was appointed as the acting regional director, health services, classified at the EX-02 group and level, from September 2012 to March 2014.

19        The complainant inquired in the summer of 2012 as to whether he could be permanently appointed to his acting position as the incumbent was retiring. However, he was informed that because of an intense period of workforce adjustment then underway, others in the EX group classification had priority over him. He testified that he was told nonetheless that it was just a matter of time before he would be appointed to an EX-02 position.

20        From March to December of 2014, the complainant was invited to act as the director general of health, another EX-02 position, in Ottawa, Ontario. He received a subsistence allowance as he was on travel status two weeks per month for the duration of this acting appointment. He explained that because he had a good performance record, this arrangement could be justified. He added that in 2014, he was also approached for other interesting assignments but that he could not accept them as he had then committed to the acting position.

21        The complainant also testified that he met Don Head, the Commissioner of the CSC, in 2014. At that time, the complainant had been acting as an EX-02 for almost two years. He explained that Mr. Head asked him about his plans for the future. He replied that the following two positions interested him: (1) the regional director (Pacific Region), health services, position; and (2) the ADCIS position.

22        The complainant believes that he should have been considered in the non-advertised process at issue. He also alleges that it was unfair for the respondent to consider just one person for the ADCIS position.

23        The complainant called two persons to testify at the hearing, Carol-Ann Reynen, who at the time the complaint was filed was the warden of Matsqui Institution. When she testified, she was the warden of Pacific Institution. He also called Bobbi Sandhu, who at the time the complaint was filed was the warden of Kent Institution; when she testified, she was the warden of Matsqui Institution.

24        The respondent objected to the complainant calling them to testify as it considered that they had not been involved in the appointment process and that their testimony would not be relevant to the issues in this case. The complainant responded that the respondent had adopted an inflexible policy of considering only one person for this appointment and that Ms. Reynen and Ms. Sandhu, like him, had not been considered for the ADCIS position. In his view, their confirmation of this fact was relevant to the questions at issue.

25        I allowed the complainant to call these two witnesses and rejected the respondent’s objection given that the complainant bears the burden of proving the alleged abuse of authority. However, I informed the parties that I would later decide if their evidence is ultimately relevant and, if so, what weight to attach to it.

26        Ms. Reynen testified that she worked with the complainant in the past and that he is a highly professional, pleasant, and competent person. She had participated in a recent EX-02 national process for wardens before being appointed as one. She was asked whether she would have been interested in the ADCIS position, to which she responded in the negative. She also confirmed that she had not been approached or considered for it.

27        Ms. Sandhu testified that she has known the complainant for his entire CSC career. She added that he is very professional and very eloquent. She had also participated in the recent process for wardens. As for the ADCIS position, she recognized that she had expressed an interest in it. She confirmed that she is confident that she would have been qualified for it. However, she was not approached about it. She obtained a warden position instead. Like the complainant, Ms. Sandhu is a member of a visible minority group.

28        The complainant filed in evidence at the hearing the CSC’s “Bulletin on Criteria for Non-Advertised Appointment Processes” (“the Bulletin”), which provides that a non-advertised appointment process must (1) be consistent with the CSC’s human resources planning, unless the vacancy is due to unforeseen circumstances; (2) respect all requirements and procedures with respect to priority entitlements; and (3) respect the PSC’s appointment values of fairness, access, transparency, and representativeness.

29        The Bulletin also specifies that in addition to the appointment values, managers should take the following considerations into account before selecting a non-advertised appointment process:

…

• flexibility, affordability and efficiency;
• nature of the work, urgency and duration of the appointment;
• merit criteria (essential and asset qualifications, operational requirements and organizational needs);
• labour market including existing sources of candidates, employment equity and official languages;
• access to developmental opportunities and career aspirations of employees;

…

30        The complainant submits that the CSC implemented a national audit program of staffing activities to ensure compliance with the PSEA and any other statutory requirements and policies as they pertain to the integrity of appointments. He filed in evidence two audits for the periods of 2009 to 2011. He claims that they show that in certain cases, systematic problems affected the respondent. However, I note that these documents cover a period before the appointment process at issue.

31        The complainant also submits that the CSC adopted an “Employment Equity Program and Action Plan” for 2013-2015. The role of the “Visible Minority/Aboriginal Action Plan” was to facilitate an inclusive workplace. Consultations were conducted with visible minorities in 2011. The plan’s solution was to effectively and efficiently engage and include visible minority employees as part of the CSC’s vision for the public service. The complainant alleges that by not considering him or other visible minorities for the ADCIS position, the respondent did not honor its commitment to effectively and efficiently engage and include visible minority employees as part of the CSC. He submits that not respecting these principles is evidence of an abuse of authority.

32        The respondent called Peter German to testify. At the time the appointment process was underway, he was the regional deputy commissioner, Pacific Region.

33        Mr. German explained that he was informed in November of 2014 that the ADCIS position would become vacant in December of 2014. A letter dated November 17, 2014, was entered into evidence. In it, the person in the ADCIS position in the CSC’s Pacific Region at that time provided notice of retirement, effective December 19, 2014, to the respondent.

34        Given that the incumbent of the ADCIS position was to retire soon, Mr. German immediately took steps to ensure that a new ADCIS would be found. While he did this, an acting post of less than four months was offered to Ms. Turi for the period from December 1, 2014, to March 31, 2015.

35        Mr. German explained that filling the ADCIS position was critical and a high priority for several reasons, including security.

36        Mr. German consulted the person in charge of human resources in Ottawa, the Assistant Commissioner of Human Resources. Together, they considered staffing options that would allow quickly filling this key position while respecting staffing values and principles, as well as meeting organizational and operational needs. He explained that he also needed to address employment equity representation at the most senior levels of the regional management team.

37        Mr. German clarified that there are only five senior ADCIS positions in the country. At the time at issue, all the other ADCIS positions were staffed, and there was no pool of qualified candidates available. Since all the other positions were staffed, he and the Assistant Commissioner of Human Resources did not see the need to conduct an advertised selection process. Instead, they chose to conduct a non-advertised process to staff it indeterminately. Mr. German mentioned that another option would have been to appoint a person to another EX-02 position and subsequently deploy that person to the ADCIS position. However, he felt that this way of proceeding would have been less transparent. So, he opted to conduct a non-advertised process instead.

38        Mr. German also explained that a “Pacific Region Human Resources Plan” (“the Pacific Region HR Plan”) for 2013 to 2015 had been developed, and it included employment equity commitments and strategies for recruitment. In particular, it included objectives for the recruitment, promotion, and retention of designated group members in areas in which the workforce analysis indicated under representation. One designated group was women. As the report indicated, at the time, only 21.4% of EX positions were filled by women, while the target based on workforce availability was 47.7% for this designated group. Another designated group was visible minorities. However, 14.3% of the EX positions were filled by visible minorities at the time, while the target based on workforce availability was 11.3%. Thus, Mr. German felt that it was better to promote a woman instead of someone from another designated group.

39        Mr. German explained that there had been a recent EX-02 national process for wardens and that qualified candidates were available. Thus, the opportunity to select someone from that pool was considered. In addition, the Pacific Region HR Plan specified that the Pacific Region had committed to engaging in four strategic areas, which included renewing and engaging the workforce and preparing leaders for the future. An opportunity to promote from within its senior manager ranks was seen as a positive step in this direction. One of the qualified candidates from the wardens process was a woman from the Pacific Region — Ms. Turi.

40        Mr. German explained that he decided to recommend Ms. Turi based on his knowledge of her skills and abilities. He had seen her work and was impressed with her level of commitment, her knowledge, and the energy she had shown. He had also sat as a member of the assessment board for the recent EX-02 national process for wardens, and Ms. Turi had been among the top candidates in the country. He added that the essential qualifications assessed pursuant to that selection process were similar to those to be assessed for the ADCIS position.

41        The respondent maintains that there was no abuse of authority in its decision to choose a non-advertised process. It submits that pursuant to s. 30(4) of the PSEA, there is no requirement to consider more than one person for an appointment to be made on the basis of merit. In addition, there is no obligation for managers to make appointments from pools. Under s. 33 of the PSEA, and as demonstrated in Clout v. Deputy Minister of Public Safety and Emergency Preparedness,2008 PSST 22, managers have the discretion to choose between an advertised and a non-advertised process. The respondent submits that although the complainant feels that the use of a non-advertised process was not fair and equitable as it did not give him an opportunity to participate, choosing to use one was well within management’s authority.

42        The PSC Choice of Appointment Process Policy states that the choice of advertised or non-advertised and internal or external appointment processes is consistent with the organization’s human resources plan and its core and guiding values. That policy requires that deputy heads establish and communicate the criteria for using non-advertised processes. It also requires deputy heads to ensure that a written rationale demonstrates how a non-advertised process meets the established criteria and theappointment values.

43        Section 77(1)(b) of the PSEA provides that a complaint may be made that the respondent abused its authority in choosing between an advertised and a non-advertised appointment process.

44        Section 33 of the PSEA is clear that the PSC or its delegate, in accordance with s. 15(1), may choose an advertised or non-advertised process to make an appointment. It reads as follows: “In making an appointment, the Commission may use an advertised or non-advertised appointment process.”

45        In the circumstances, the complainant cannot allege abuse of authority simply because a non-advertised process was chosen. He has to prove that the decision to choose a non-advertised process constituted an abuse of authority.

46        The complainant alleges that the non-advertised process denied him and other visible minorities, like Ms. Sandhu, the opportunity to be considered for the position. On the other hand, the respondent submits that it can justify its decision. It has filed the narrative rationale justifying Ms. Turi’s appointment. The “Checklist for Non-Advertised Appointment Process Form” was also submitted, as well as a “Rating Guide” confirming that Ms. Turi was assessed and was found qualified for the position.

47        The written rationale that was prepared for the non-advertised process states in essence that to staff the vacant EX-02 position, the Regional Deputy Commissioner, Pacific Region, considered different staffing options. The objective was to find one that allowed quickly filling this key position in the organization and respecting staffing values and principles, as well as meeting organizational and operational needs. The Regional Deputy Commissioner also wanted to address employment equity representation at the most senior levels of the regional management team.

48        I find that the decision to choose a non-advertised process was well explained and documented. Mr. German made it clear that the respondent needed to proceed quickly. It chose to select someone from the pool of qualified candidates that had resulted from the recent EX-02 national process for wardens and to assess that person, Ms. Turi, against the “Statement of Merit Criteria” for the ADCIS position. She was found qualified. Mr. German also considered the fact that her appointment addressed employment equity representation at the most senior levels of the regional management team for the CSC’s Pacific Region. The respondent considered this choice of process the most appropriate course of action and prepared adequate documentation to support its decision.

49        The complainant has not established that proceeding that way was unreasonable. The choice of process was within the parameters of legislative and policy requirements.

50        Furthermore, s. 30 of the PSEA provides as follows that there is no need to go through a selection process and interview many people to make an appointment:

30(4) The Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit.

51        Therefore, I find that the complainant has not proven on a balance of probabilities that there was an abuse of authority by the respondent in choosing a non-advertised process.

B. Was there abuse of authority in the evaluation of Ms. Turi?

52        The complainant maintains that there was abuse of authority in Ms. Turi’s evaluation. However, he did not raise any facts to support his allegation.

53        Mr. German explained that Ms. Turi was fully assessed for the position, and a “Rating Guide” was prepared and finalized on December 23, 2014. It includes the qualifications assessed; the essential ones consisted of five knowledge qualifications and seven key leadership competencies. The Rating Guide described the methods used in assessing them all.

54        Mr. German explained that the assessment tools used to assess the knowledge qualifications K1, K2, and K3 and the competencies from LC1 to LC3 were exam questions 1 and 2 that were assessed in the recent EX-02 national process for wardens. Ms. Turi’s scores were greater than the pass mark for all these qualifications. For the two essential qualifications that were not covered and that were required for the ADCIS position, a written examination was conducted. The evaluation questions could receive only a mark of “pass” or “fail”. Ms. Turi obtained “pass” for these questions and these qualifications, which were K4 and K5. Two other qualifications, which were identified as LC1b and LC4, were assessed through reference checks. Ms. Turi obtained scores of four out of five for these two qualifications while the pass mark was three.

55        A different process number appears on the Rating Guide filed into evidence. Mr. German noted that it appears that someone wrote the wrong process number on it, 2014-PEN-IA-NAT-88537, which might have been for the EX-02 national process for wardens. However, the selection process number for the non-advertised process was 14-PEN-INA-PAC-95334. Yet, the Rating Guide was clearly prepared for the ADCIS position in the CSC’s Pacific Region and not for a warden position. All the criteria included in the “Statement of Merit Criteria and Conditions of Employment” for the ADCIS position were assessed, in addition to two additional criteria that related to departmental and government priorities and community partners. As for the experience criteria, the appointee met them as she was already a CSC senior manager.

56        Therefore, the NOC was issued specifying that Ms. Turi was being considered for the ADCIS position.

57        A person with a priority entitlement then self-referred. That person, who was from Toronto, Ontario, was assessed for the position. Ms. Turi’s acting appointment was then extended from March 31 to July 31, 2015. The “Information Regarding Acting Appointment” was posted on April 22, 2015.

58        Once the priority person’s assessment was completed, the person was found not qualified, and the “Notification of Appointment or Proposal of Appointment” was posted on May 29, 2015, for Ms. Turi’s indeterminate appointment.

59        The “Non-Advertised Rationale” for the ADCIS position signed in June of 2015 by Mr. Head, Mr. German, and the Human Resources Manager, provides the complete rationale for the decision to appoint Ms. Turi.

60        The respondent maintains that there was no abuse of authority in the decision to appoint Ms. Turi. She was assessed and was determined to meet all the essential qualifications for the position, which were established objectively and in relation to the duties to be performed.

61        The PSC submits that when making appointments, s. 36 of the PSEA permits the PSC or its delegate, in this case the respondent, to use the assessment methods “... that it considers appropriate to determine whether a person meets the qualifications ...”.

62        Section 36 of the PSEA allows discretion in choosing methods to assess candidates for appointment, as follows:

36 In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

In this instance, all merit criteria for the ADCIS position, including the knowledge criteria, were assessed. The method used to assess the five knowledge qualifications and seven key leadership competencies was reasonable. It has been shown that Ms. Turi met the established essential qualifications.

63        As long as the successful candidate met the essential qualifications and the respondent can justify its decision, the fact that it opted to select someone from the pool of qualified candidates created in the recent EX-02 national process for wardens for reasons of expediency and convenience is irrelevant. This is in accordance with s. 36 and with the following excerpt from the PSEA’s preamble:

…

delegation of staffing authority should be to as low a level as possible within the public service, and should afford public service managers the flexibility necessary to staff, to manage and to lead their personnel to achieve results for
Canadians ...

…

[Emphasis added]

64        Therefore, I find that it has not been established that the respondent chose inappropriate methods to assess Ms. Turi or that there was abuse of authority in her evaluation.

C. Was there abuse of authority because of personal favouritism?

65        The complainant submits that the respondent personally favoured Ms. Turi in this appointment process.

66        As noted earlier, although the term “abuse of authority” is not defined in the PSEA, s. 2(4) states as follows: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

67        In Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7 at para. 41, the Public Service Staffing Tribunal (PSST) noted as follows:

... The selection should never be for reasons of personal favouritism. Undue personal interests, such as a personal relationship between the person selecting and the appointee should never be the reason for appointing a person. Similarly, the selection of a person as a personal favour, or to gain personal favour with someone else, would be another example of personal favouritism.

68        The PSST pointed out at paragraph 39 that personal favouritism, not other types of favouritism, constitutes abuse of authority.

69        The complainant argues that Mr. German demonstrated personal favouritism towards Ms. Turi because he chose her without considering others. He had also worked with her before and was impressed with her level of commitment and her knowledge and the energy she had shown.

70        Mr. German testified that he and Ms. Turi had only a professional relationship. He initially met her at work meetings. They had no contact outside the office except on one occasion. After she was hired, Mr. German and his wife organized a Christmas party for his senior staff. Ms. Turi and her husband attended.

71        In response to the personal favouritism allegation, the respondent asserts that the appointee was selected in a fair and transparent manner and according to merit on the basis of knowledge, abilities, experience, and personal suitability as well as operational needs. As pointed out in the PSST’s decision in Portree v. Deputy Head of Service Canada, 2006 PSST 14, the fact that the complainant does not agree with the assessment board’s decision does not in and of itself constitute abuse of authority.

72        I find that the complainant has presented no evidence that personal favouritism was a factor in Ms. Turi’s appointment. There is no evidence that she and Mr. German had a personal relationship that could have affected the appointment process. Therefore, I conclude that the complainant has failed to prove that the respondent abused its authority based on personal favouritism.

D. Was there abuse of authority because the respondent misled the complainant?

73        The complainant also claims that the respondent misled him before making this appointment, which is why he was not considered for the position. In particular, he claims that it omitted to inform him of the cancellation of an EX-02 pool in which he was a qualified candidate, which is why he did not submit an application to the EX-02 appointment process for wardens that led to Ms. Turi’s appointment. Ms. Turi, who qualified in that EX-02 process, was eventually appointed through the non-advertised process on the grounds that she met the ADCIS position’s essential qualifications.

74        The complainant claims that the respondent also encouraged him to withdraw from the EX-01 Leadership Development Program (LDP) to occupy an acting position at the EX-02 level. He explained that in February of 2013, Michele Brenning, the Assistant Commissioner, Health Services, advised him to make that withdrawal. This was necessary, she told him, for him to receive his EX-02 acting pay.

75        The complainant explained that his preference was to maintain his candidacy in both the EX-01 and EX-02 pools in which he was a qualified candidate. However, as he was told that he would be appointed before long as an EX-02, he did withdraw from the LDP and did not do the final wrap-up interview required under the program. He testified that Ms. Brenning reassured him that that EX-02 pool had no expiry date and that it would be used to staff vacancies.

76        The complainant filed as an exhibit an email dated February 18, 2013, written by Ms. Brenning, to prove that he was asked to withdraw from the LDP; that he was told that the EX-02 pool, in which he was a qualified candidate, had no expiry date; and that it would be used to fill vacancies. This email was sent to the Director of Executive Group Services. It reads as follows:

Christine

I met with Commissioner [sic] and the following are the next steps with Ghalib:

1. He will withdraw from LDP effective September 2012 which was when he successful [sic] completed 2 assignments

2. His acting pay commences with the extension of his time in the EX2 HS position (back pay starting September 2012)

3. I will also be extending Ghalib’s acting for another year so there is no break in leadership – I believe that is April 1 2013 to March 31 2014

4. As per your note this morning pool has no expiry so future decisions can be made as needed.

…

77        In September of 2014, the EX-02 pool in which the complainant was a qualified candidate expired. However, he was not advised of it.

78        In October of 2014, the new EX-02 national process was initiated to fill warden positions. The complainant did not apply as he did not know that the pool in which he was a qualified candidate had expired.

79        In November of 2014, the complainant advised Mr. German that he was interested in the ADCIS position, which would soon be vacant. He told Mr. German that he was a qualified candidate in an EX-02 pool. The complainant did not know then that this pool had expired. As for Mr. German, he stated at the hearing that he did not remember if he knew about the expiration of that specific pool as it had occurred many years ago. But his understanding was that no EX-02 pools were available then. The complainant also wrote to the Commissioner to remind him that he was interested in the position.

80        On December 1, 2014, Ms. Turi started acting in the ADCIS position.

81        When his acting director general of health position ended in December of 2014, the complainant went back to his substantive AS-07 position.

82        In March of 2015, the complainant spoke again to Mr. German. The complainant learned that a person with a priority entitlement was being assessed for the ADCIS position. Believing that the position would be staffed by this person, the complainant then informed Ms. Brenning that the regional director, health services, position interested him. This position also would soon be vacant. However, she told him that she believed that the EX-02 pool in which he was a qualified candidate had expired. She recommended that he check with Executive Group Services.

83        In April of 2015, the complainant asked Executive Group Services for a status report on the EX-02 pool, but received no response.

84        In May of 2015, the complainant learned that Ms. Turi had been appointed to the ADCIS position and that the EX-02 national process for warden positions had been used to fill it.

85        In June of 2015, the complainant received a confirmation from Executive Group Services that the pool in which he was a qualified candidate had expired in September of 2014.

86        The complainant also learned in August of 2016 that the regional director, health services, position had been filled permanently with another person.

87        The complainant’s assumption was that he would be appointed from the EX-02 pool into an EX-02 position, such as the ADCIS position or the regional director, health services, position once the incumbents retired. He testified that the following three things led him to believe that he would obtain one of these positions: (1) his direct supervisor had indicated as much to him; (2) the Commissioner knew that he was interested in these positions; and (3) Mr. German was also aware that the complainant was interested in them.

88        A document entered into evidence, an email dated July 10, 2015, and prepared by a representative of the respondent, confirms that the candidates remaining in the EX-02 11-PEN-IA-NAT-51717 pool, in which the complainant was a qualified candidate, were not notified of its closure.

89        The respondent submits that while the complainant raised issues with respect to his withdrawal from the LDP, his participation in the other EX-02 process, his career aspirations, and other EX appointments that took place, they are separate from and did not impact the staffing decision in question.

90        While I agree that these issues are separate from the decision to appoint Ms. Turi to the ADCIS position, I find it regrettable that the complainant was not told that the EX-02 pool, in which he was a qualified candidate, expired in September of 2014 even though he was advised in 2013 that the pool had no expiry date. The evidence shows that the respondent omitted to inform the candidates in that pool of its cancellation. The complainant said that he did not apply to the wardens process that led to Ms. Turi’s appointment because he did not know that the pool he had been in was no longer valid. Had he known that the wardens process could be used to staff EX-02 positions such as the ADCIS position, he could have participated in it.

91        The evidence also shows that the respondent encouraged the complainant to withdraw from the LDP without due consideration of the impact that this decision would have on his availability to be appointed to an EX-01 position in the future. He did withdraw from the program under the assumption that he would shortly obtain an EX-02 position, but that did not happen.

92        However, there is no evidence that these issues impacted the staffing decision in question. The respondent had the discretion to choose an appointment process that was within the parameters of legislative and policy requirements. The decision to appoint Ms. Turi to the ADCIS position was distinct from these other matters.

93        Still, the complainant maintains that since he reported the fact that he had been misled and filed his complaint, he has not been offered developmental or acting appointments. In his view, he is suffering reprisals as a result of disclosing these facts. He explained that his career progressed steadily until he filed the complaint. He added that throughout his career, his performance has been qualified as more than satisfactory. Yet, his performance appraisals since he filed the complaint have gone from fully satisfactory to satisfactory. He feels let down by the respondent.

94        As he explained, he received several awards and recognitions over the years for his contributions to the CSC. He was honoured one year with the Peace Officer Exemplary Service Medal. In addition, in recognition of his years of work, he received the Queen’s Golden Jubilee medal one year.

95        These reprisals have had financial, emotional, and psychosocial effects on him, which are why he went ahead with his complaint.

96        I sympathize with the complainant, and I know that this situation must be very difficult for him. My hope is that the respondent will not punish him by refusing him developmental and acting opportunities for having reported these facts in good faith.

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

V. Order

98        The complaint is dismissed.

February 8, 2018.