FPSLREB Decisions

Heard at Winnipeg, Manitoba,
January 19 and 20 and May 9 to 12 and 18, 2017.

REASONS FOR DECISION

I. Introduction

1        The complainant, Melody Raabe, alleges abuse of authority in the application of merit in the acting appointments of two of her former peers. She and those peers had received acting appointments from the same appointment process. Unfortunately for the complainant, the Department of Indian and Northern Affairs (“the respondent”) ended her acting appointment within weeks of it commencing. However, the other two appointees were reappointed, effectively extending their acting appointments beyond the initial three-month period. Those reappointments triggered this complaint.

2        The complainant submitted eight pages of allegations, which were amended twice before the matter was heard. She was well prepared for her hearing, and she presented a helpful summary of her many allegations in her opening statement. She argued that the respondent abused its authority in the application of merit in the form of personal favouritism and by acting in bad faith and showing bias against her. She also claimed that there were errors made in the assessment of the candidates who were reappointed.

3        The 7-day hearing involved testimony from 10 people in the complainant’s former office that she called to testify, along with her direct supervisor and the director of the division she worked in. Several volumes of exhibit books, of which the complainant’s comprised 250 different documents, were tendered as exhibits. In her arguments, she relied on 2 volumes comprising 41 different documents.

4        I allowed many hours of testimony, over the respondent’s objections, to give the complainant every possible opportunity, within the bounds of the most generous interpretation of relevance as I could give, to adduce clear, cogent, and convincing evidence to support her many allegations.

5        This decision will reflect what I found was the core of the complainant’s case, but I will not attempt to capture every point of testimony or every piece of documentary evidence as much of it was simply not relevant to the matters I had jurisdiction to hear.

6        Despite the complainant’s extensive preparation, very well organized witness examination, and comprehensive research to support her arguments, I conclude that the majority of the allegations do not fall within my jurisdiction to hear this matter under the Public Service Employment Act (“the Act”). On those matters that do fall within my jurisdiction, I find insufficient evidence to support a finding of errors or other conduct that would amount to an abuse of authority.

7        The complainant filed the complaint with the Public Service Labour Relations and Employment Board on August 6, 2015. 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 the Federal Public Sector Labour Relations and Employment (“the Board”) and the title of the Public Service Labour Relations and Employment Board Act to the Federal Public Sector Labour Relations and Employment Board Act.

II. Background

8        The complainant began working in the public service in 1986. She applied to the advertised process at issue, numbered 14-IAN-IA-AO-HQ-RIA-139877, for appointment to a team leader position, classified PM-03. On January 27, 2015, she was advised that she had been placed into a pool of qualified candidates. This pool remained effective until January 27, 2016.

9        On February 19, 2015, the complainant accepted an offer for an acting appointment to a team leader position (in the clerical unit) in the respondent’s Winnipeg Processing Unit for a period of less than four months, from April 1, 2015, to June 30, 2015.

10        Two other employees, Amber Bryski, and Amanda Wilson, also received acting appointments to PM-03 positions for the same period and worked as co-team leaders in the same office. All three reported to Shannon Barry (classified PM-05), who in turn reported to Keith Desjardins. Ms. Barry was one of three members of the selection committee for the appointments at issue.

11        On May 20, 2015, the complainant’s supervisor advised her that her acting appointment was being terminated due to an office reorganization and that she was required to report back to her substantive position on May 25, 2015.

12        However, Ms. Bryski’s and Ms. Wilson’s acting appointments were not terminated and at their expiry, both employees were reappointed for an additional acting period beginning on July 1, 2015, and ending on November 30, 2015. The complainant filed this complaint in relation to these reappointments.

III. Analysis

13        The complaint was made pursuant to s. 77 of the Act. Ms. Bryski’s and Ms. Wilson’s reappointments were for a period of four months less a day. Appointments of less than four months are excluded from the application of s. 77 of the Act, unless they serve to extend the cumulative period of the employee’s acting appointment to four months or more (s. 14(1) of the Public Service Employment Regulations (SOR/2005-334)). Since both employees’ reappointments extended the cumulative period of their acting appointments beyond four months, the complainant was entitled to file this s. 77 complaint.

14        Section 77 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 has 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).

15        Although the complainant initially succeeded in gaining an appointment through the process complained of in this complaint, she became an unsuccessful candidate when her two former co-team leaders were appointed for the additional terms commencing in July 2015.

16        Section 30(1) of the Act states that appointments to or from within the public service must be made on the basis of merit, and s. 30(2)(a) 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 Chairperson Ebbs of the Board noted 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        That 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. Issues

1. Was the decision to eliminate the complainant’s acting position evidence of bad faith and bias against her?

21        The complainant adduced a significant amount of evidence at the hearing to show that in her opinion, during her tenure and afterwards, there was sufficient work in the office to justify keeping her in the acting position. Hours were spent examining documents, attestations, and position numbers that the complainant argued were proof of the original intent to have her serve for at least the full term of her acting appointment.

22        The premature termination of the complainant’s acting appointment does not come within my authority under s. 77 of the Act. This was confirmed to the complainant prior to the hearing in a letter decision that the Board issued on October 28, 2015, in response to a request for an order for the production of information (OPI).

23        Despite the respondent’s objections, I allowed testimony about several matters of concern to the complainant as she argued that together, these matters were evidence of bad faith and bias by the respondent towards her that factored in the decision to make the appointments about which this complaint was made.

24        The complainant testified and pointed to documentary evidence that she argued proved that the only real change in the purported office reorganization was the deletion of her acting appointment and that if anything, the workload actually increased after her departure. Shortly after she left, someone was assigned into the office to do work that she could have carried out.

25        At the hearing, I received testimony and documentary evidence that showed that Ms. Bryski and Ms. Wilson, who ultimately were reappointed to their acting positions, at times communicated office matters directly to the staff that the complainant managed. She also adduced evidence that showed that one of them took it upon herself to approve vacation leave for staff that the complainant supervised.

26        The complainant was very upset by the fact that her peers usurped her authority in the organization. Evidence was also adduced that showed that the office manager would occasionally share email and hold meetings without including the complainant.

27        The complainant also testified as to how she was excluded from a staff trip to participate in an offsite treaty payment ceremony with a departmental client first nation.

28        The complainant testified that her supervisor, Ms. Barry, was often not available to speak with her and was often tardy in replying to her written communications. The complainant testified that Ms. Barry micromanaged her and that she accused the complainant of being unduly influenced in her work by her bargaining agent interests and participation. The complainant also stated that Ms. Wilson started assigning her work.

29        The complainant questioned Nancy Buchanan who worked in the Unit and who testified that during a conversation at lunch, Ms. Wilson stated that they didn’t like the complainant at the office as she was trying to shake up their management system and change the office.

30        The complainant testified that by April 10, 2015, she requested a meeting with Ms. Barry’s manager, Mr. Desjardins, and that Ms. Barry refused to attend. It was held to discuss the complainant’s concerns about the office not operating according to departmental and Treasury Board policy. Overall, the complainant stated that the management team in her office met only once before the meeting in which she was informed that her appointment was terminated.

31        The complainant also testified and adduced documentary evidence about a meeting held on April 14, 2015, at which she alleged that she was being treated poorly and that meeting minutes had been written many weeks later that had misstated her contribution to the meeting to reflect poorly upon her good work and input.

32        The complainant pointed out Exhibit 3, which is an email dated 12:02 p.m. on May 15, 2015, in which Ms. Barry wrote of someone locating a document that that person felt had been misplaced and that it had been stapled instead of placed in a binder. Apparently, the binder was the complainant’s responsibility. The complainant pointed to this email as evidence of a veiled criticism of her that showed how unfairly she was treated and how the manager was biased against her.

33        The complainant adduced documentary evidence in the form of emails from her co-team leaders Ms. Wilson and Ms. Bryski that were acquired through an access-to-information request (ATIP). The emails purport to document interpersonal conflicts arising from rather banal day-to-day office interactions among staff. The authors claim that other staff asked them if they had “hurt feelings” arising from conversations with the complainant that they had overheard.

34        The complainant testified that these issues were blown out of proportion and that they were turned into a disciplinary issue as a part of an effort to discredit her and hurt her career in the department and that they were used to prevent her from gaining another appointment in the office after her initial one was prematurely terminated.

35        The complainant sought to adduce a document into evidence which she said related to her being disciplined. The respondent objected to my receiving the document on the grounds of it being subject to a labour relations privilege. Having reviewed the document I do not find it to be of sufficient relevance to have any probative value and decline to accept it for this reason alone.

36        Several of the intra-office emails adduced as evidence raise the spectre of matters like the “hurt feelings” of a co-team leader who might have been upset by how the complainant had spoken to her and who then made allegations about the complainant to senior management. I find these emails by the complainant’s co-workers to be petty. However, these emails and the related testimony of several witness that documents the strain and tension within the complainant’s office does do not support my finding bad faith or bias towards the complainant.

37        Within her first week in the acting position, the complainant had become concerned with what she saw as breaches of Treasury Board policies related to things such as breaks. Unsatisfied after raising the matter with her direct supervisor, the complainant wrote to the regional director general. Still unsatisfied, she wrote to an executive member of the department’s head office in Ottawa about her concerns with collective agreement observance. When I asked her how that went, she replied, “Not well.”

38        The complainant testified that after doing all that, she felt even more isolated from discussions between her peer managers and their immediate supervisor. Not long after writing those things, the complainant received notice that her acting position was being eliminated and that she would immediately be returned to her substantive position.

39        I will address this issue of the cumulative impact of this and other evidence as it relates to the allegation of bad faith and bias against the complainant later in this decision.

2. Is there any significance in the July 2015 appointment of another employee from outside the pool of qualified candidates to the complainant’s allegation of bad faith and bias?

40        The complainant adduced evidence that shortly after her acting appointment was terminated, another person working for the respondent, but not from the pool of candidates, was placed into an acting PM-03 position in the branch at issue.

41        The complainant argued that the respondent should have appointed her as she was still in a valid pool and that this was further evidence of bad faith and bias towards her.

42        However, the complainant did not file any complaint about this staffing action. Therefore, the matter is not properly before the Board and I have no jurisdiction to deal with it in any way. Moreover, I do not find this other staffing action to be of any relevance in the complainant’s allegation of bias and bad faith against her.

43        In any event, and for informational purposes only, I must point out that there is no requirement in the Act for hiring managers to select individuals for vacant positions who have already qualified in a pool from a previous appointment processes.

3. Did Ms. Barry and Ms. Bryski have a personal relationship that resulted in personal favouritism improperly influencing the decision to reappoint Ms. Bryski to the term commencing in July? Did the respondent know in advance that she was about to go on leave, and if so, is this relevant, and is it evidence of bad faith and bias against the complainant?

44        The complainant alleged that her managers knew that Ms. Bryski was preparing to take leave before they decided to extend her acting tenure by means of a reappointment. They did so despite her impending absence, which extended over most of the reappointment’s duration. The complainant adduced evidence, acquired through an ATIP request, that showed that Ms. Bryski began an approximate one-year leave of absence on July 13, 2015, shortly after her acting appointment had been renewed on July 1, 2015.

45        Evidence was also adduced showing that Mr. Desjardins acted as a reference for the successful appointees. It was also established in testimony that Ms. Barry referred to Ms. Bryski and Ms. Wilson as the “A Team”, which the complainant argued was proof that they were being treated preferentially and that Ms. Barry, who was on the selection board in the appointment process, showed favouritism.

46        Regardless of the evidence that the respondent knew of Ms. Bryski’s pending leave, there was nothing untoward or objectionable under the Act in her appointment, effective in July.

47        The complainant relied upon the PSST’s decision in Cameron v. Deputy Head of Service Canada, 2008 PSST 16, as an authority. (Note that on judicial review, in 2009 FC 618, the Federal Court allowed the merits of the decision to stand but struck down the corrective actions that the PSST had ordered.) However, I find that this case does not assist in the analysis of the complaint for the following reasons.

48        The respondent in Cameron had made an appointment by non-advertised process, claiming amongst other things, that it had to act urgently because of the sudden departure of the previous incumbent. However, the evidence showed that the respondent had known for some time that the position would be vacated and accordingly, the PSST found that the respondent failed to adequately explain the circumstances surrounding its decision. The PSST concluded that for this and other reasons that the respondent had acted in bad faith.

49        I fail to see the relevance of this decision to the facts in the present case. Here, we are not dealing with a claimed sudden vacancy to justify the use of a non-advertised process. In fact, on the contrary, Ms. Bryski was appointed by advertised process. The only “vacancy” in this case is her departure after her appointment, not a vacancy before the appointment.

50        The complainant also cited Glasgow v. Deputy Minister Public Works and Government Services Canada, 2008 PSST 7, as an authority for the proposition that preferential treatment in office assignments and training opportunities can be found to substantiate a finding of personal favouritism. However, in fact, Glasgow said that such unequal opportunities in a workplace can be justified and in that case were not found to amount to personal favouritism. The PSST also took care to distinguish between favouritism and personal favouritism, which Parliament specifically referenced in the Act as being included in the definition of “abuse of authority”, as I noted earlier in this decision.

51        Similar to what was concluded in Glasgow, I do not find that any of the evidence before me leads me to conclude that management showed personal favouritism towards either appointee in the July non-advertised process. There was no evidence of any personal relationship of any sort between Ms. Barry and Ms. Bryski.

52        I listened carefully to hours of testimony, which the complainant referenced in argument as evidence in her mind of Ms. Barry showing favouritism towards Ms. Bryski. As noted, the evidence showed that meetings were held presumably to discuss office work and management issues with Ms. Bryski, and at times Ms. Wilson, and that the complainant was not invited.

53        Mses. Bryski and Wilson were taken on a trip to attend a first-nation treaty payment ceremony, but the complainant was not invited. She testified as to how she was denied the ability to manage her staff in some particular way, but then, within weeks of her departure, she found out Ms. Bryski was allowed to do it that way. Apparently, it occurred without management correcting it. Other similar anecdotal reports were also adduced in evidence.

54        I do not find that any of the evidence supports that the allegation of favouritism was of a personal nature as is required by the Act for me to find that wrongdoing occurred.

55        I conclude that there was no personal favouritism in the decision to appoint either of the appointees.

4. Was Ms. Bryski’s reappointment process for the term commencing in July flawed?

56        Was Ms. Bryski’s reappointment process in July 2015 flawed? Was there a conflict of interest with respect to one of her references? Were her qualifications improperly assessed in terms of merit against the established criteria? In one word, no. There was no evidence that either Ms. Bryski’s or Ms. Wilson’s initial appointments or later July reappointments were tainted in any material way by bias against the complainant.

57        The evidence very clearly shows that the workplace in question had a small number of staff who had been there for some time. Interpersonal conflict arose almost immediately after the complainant was appointed on an acting basis to the PM-03 position.

58        The complainant argued that her supervisor, Ms. Barry, was biased against her and that Ms. Barry was involved in marking the interview questions. However, that argument is not supported because the evidence shows that she did not have a relationship with Ms. Barry, either good or bad, during the selection process that resulted in the complainant and two others being selected to the pool and later assigned acting appointments.

59        The complainant argued that it was somehow improper for Ms. Bryski to have the director, Mr. Desjardins, serve as a reference for her. The complainant argued that they had not had a working relationship long enough for that to be justified and that it was a conflict of interest.

60        The complainant also alleged that flaws existed with both Ms. Wilson and Ms. Bryski’s references as one person listed as a reference was a colleague and not a supervisor and that some of the periods of supervisory experience only lasted for a few weeks which she argued were insufficient time for the person to gain enough knowledge about the candidate to be able to provide a meaningful reference. Having considered the testimony on this matter, I am satisfied that the references had sufficient knowledge of the candidates.

61        Having reviewed the evidence, I am not persuaded that there was anything improper in the process. I therefore conclude that the complainant did not establish that there was any flaw in the assessment of the appointees.

5. Does the evidence as a whole show bad faith and bias by the respondent towards the complainant?

62        Much of the complainant’s evidence was allowed over the reasonable objections of counsel for the respondent based upon this catch-all allegation of bad faith.

63        It is well established that bias on the part of an assessment Board can constitute bad faith under the Act. See Gignac v. Deputy Minsiter of Public Works and Government Services, 2010 PSST 10.

64        This Board has recently considered the historical evolution of the concept of bias and defined it as follows: “If a reasonably informed bystander could reasonably perceive bias on the part of one or more of the persons responsible for the assessment, the Board can conclude that abuse of authority exists.” Drozdowski v. Deputy Head (Department of Public Works and Government Services), 2016 PSLREB 33.

65        The complainant cited the Federal Court decision of Brown v. Canada (Attorney General), 2009 FC 758 at para. 54, which found that the PSST had failed to consider the evidence before it from a global perspective and that instead it had focused on isolated events.

66        In my careful review of the totality of the evidence, both the oral testimony and the documentary evidence, I am not convinced that anything untoward was done in the reappointments of Ms. Bryski and Ms. Wilson. Nor am I led to conclude that the evidence gives rise to reasonable apprehension of bias or demonstrates bad faith towards the complainant sufficient for me to make such a finding.

67        I did hear hours of testimony and read many emails that clearly show hurt feelings and interpersonal conflict between the complainant and her co-team leaders and their immediate supervisor, Ms. Barry. Several witnesses and the complainant all became upset during the hearing and many breaks were required to allow them to regain their composure. Hurt feelings among the staff at the office in question clearly linger. But I cannot conclude that any of this constitutes an abuse of authority under the Act. Just because there are strained relations with co-workers or a supervisor does not mean that there has been an abuse of authority in a staffing process involving them.

68        In short, my answer to the catch-all allegation of bad faith and bias is “No.” I have carefully considered all the evidence, both testimony and documentary, and taken together, I do not find that it proves the allegation.

IV. Conclusion

69        Given my determination that the evidence does not support a finding of any errors or personal favouritism, bad faith, or bias against the complainant, I conclude that the complainant has not established that there was an abuse of authority.

70        The complaint is therefore dismissed.

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

V. Order

72        I order the complaint dismissed.

April 19, 2018.