Date:  20190823

File:  EMP-2016-10572

 Citation:  2019 FPSLREB 83

Federal Public Sector Labour Relations and Employment Board Act and Public Service Labour Relations Act

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

Between

ROBERT HUNTER

Complainant

and

DEPUTY MINISTER OF INDUSTRY

Respondent

and

OTHER PARTIES

Indexed as

Hunter v. Deputy Minister of Industry

In the matter of a complaint of abuse of authority under paragraphs 77(1)(a) and (b) of the Public Service Employment Act

Before:  David Orfald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant:  Billeh Hamud and Denise Giroux, Professional Institute of the Public Service of Canada

For the Respondent:  Jeffrey Decontie, articling student

For the Public Service Commission:  Louise Bard (written submission)

Heard at Ottawa, Ontario

May 8 and 9, 2019.

REASONS FOR DECISION

I. Introduction

[1]  Robert Hunter (“the complainant”) filed a complaint of abuse of authority in relation to the filling of a senior planning and performance officer (SPPO) position classified at the CO-03 group and level in June of 2016 within the Department of Industry, which is now generally referred to as Innovation, Science and Economic Development Canada (“ISED”).

[2]  The position became vacant as a result of its incumbent’s retirement. The hiring manager for the position, William LeDuc (“the hiring manager”), chose to use a non-advertised internal appointment process to fill it, resulting in an indeterminate appointment.

[3]  The complainant alleged abuse of authority both in the choice of a non-advertised appointment process and in the application of merit, due to personal favouritism.

[4]  The complainant argued that there were several flaws in the appointment process. The most significant was developing the written rationale for using the non-advertised appointment process only after the decision to hire the appointee had been made and only after the complainant had requested it. Furthermore, once it was provided, the rationale did not make sense, given the circumstances.

[5]  In addition, the complainant stated that the respondent disregarded using a CO-03 pool that was in place in one part of ISED’s Small Business and Marketplace Services Branch (“the Branch”) that contained pre-qualified candidates with a higher educational qualification (a university degree). He had been qualified into that pool. He alleged that the educational qualifications for the SPPO position were lowered to favour the appointee’s appointment, that there were flaws in the assessment of her merit, and that those actions demonstrate personal favouritism.

[6]  The respondent denied that abuse of authority occurred. While conceding that some parts of the appointment process could have been improved, the choice of the non-advertised appointment process was within the hiring manager’s authority, the Statement of Merit Criteria (SOMC) was established in accordance with the provisions of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA), the PSEA gives managers wide latitude in selecting assessment methods, and the appointee was properly assessed against the essential qualifications.

[7]  The staffing action took place in the first months following the implementation of the “New Directions in Staffing” policy framework by the Public Service Commission (PSC). It came into effect on April 1, 2016, along with ISED’s new “Staffing Management Policy”.

[8]  The PSC’s New Directions in Staffing initiative was designed to offer delegated public service managers more flexibility in staffing while still adhering to the principles and provisions of the PSEA. This becomes a key issue in the analysis of this case, as the complainant alleges that the hiring manager and the ISED’s Human Resources (HR) advisors did not properly follow the Staffing Management Policy, which had been adopted in relation to the New Directions in Staffing initiative.

[9]  I find that the complaint is substantiated in part. The several flaws in the appointment process with respect to documenting the choice to use a non-advertised appointment process and with the choice itself add up to a finding of bad faith, which is a form of abuse of authority under the PSEA.

[10]  However, I do not find evidence of personal favouritism in the application of merit, and I do not find that the appointee was appointed without merit. Therefore, I do not order the revocation of the appointment as the complainant requested. The order includes a declaration that an abuse of authority took place, and some recommendations are made.

II. Background

[11]  The initiating event leading to the complaint was the posting of a “Notice of Consideration” (NOC) on June 6, 2016, of an appointee’s indeterminate promotional appointment to the SPPO position in appointment process number 16-DUS-INA-SPMS-74248. That position is part of the Strategic Planning and Management Services Unit of the Branch.

[12]  The essential educational qualifications for the position were as follows:

successful completion of a post-secondary program with specialization in business administration, marketing or any other specialization related to the position OR an acceptable combination of education, training and/or experience related to the position being staffed.

[13]  The SOMC also listed several other essential criteria, four in experience, two in knowledge, three in ability, and four in personal suitability.

[14]  After viewing the NOC, the complainant requested an informal discussion with the hiring manager. It took place on June 14, 2016.

[15]  A “Notification of Appointment or Proposal of Appointment” (NAPA) was posted on June 21, 2016, announcing that ISED had proceeded with the appointee’s appointment.

[16]  The complainant filed his complaint with the former Public Service Labour Relations and Employment Board (PSLREB) on July 5, 2016. In it, he alleged abuse of authority in the choice between an advertised and non-advertised appointment process.

[17]  Following the exchange of information, the complainant filed his allegations on September 9, 2016. He alleged abuse of authority in the application of merit by the respondent showing personal favouritism toward the appointee under s. 77(1)(a) of the PSEA and abuse of authority in the choice between an advertised and non-advertised appointment process under s. 77(1)(b).

[18]  As will be discussed in more detail, one of the issues the complainant raised concerns the respondent’s lack of consideration of candidates in the CO-03 pool. The appointment process for it had closed on August 19, 2014, for positions titled “Manager, Client and Partner Relations.” Corporations Canada of the Department of Industry had run the appointment process; it is also part of the Branch at issue. The job advertisement stated, “This process will be used to staff the above-mentioned position; it may also be used to establish a pool of partially qualified candidates to staff similar positions within Industry Canada …”

[19]  The educational qualification for the CO-03 pool was a “degree from a recognized university.” The full SOMC for the pool covered a number of experiences, knowledge, abilities, and personal suitability essential qualifications that are similar to the SPPO position at issue in this case.

[20]  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 PSLREB and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) and the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2).

[21]  The PSC did not appear at the hearing but presented written submissions in which it discussed its relevant policies and guidelines. It took no position on the merits of the complaint.

III. Issues

[22]  I must determine the following issues:

1. Was there abuse of authority in the choice of a non-advertised appointment process?
2. Was there abuse of authority in the application of merit due to personal favouritism?

IV. Summary of the evidence

[23]  The complainant testified and introduced 16 documents into evidence. At the time of the events at issue, he was a project officer classified CO-02 in ISED’s Automotive and Transportation Industries Branch. As of the hearing, he worked for Global Affairs Canada.

[24]  The respondent called the hiring manager and introduced six documents into evidence. At the time of the events at issue, the hiring manager was the director of the Strategic Planning Unit and Management Services Unit, which included the position at issue. As of the hearing, he was a “visiting executive” on an interchange assignment with the Association of Professional Executives of the Public Service of Canada, or “APEX”.

[25]  The need to staff the SPPO position arose when the incumbent announced his retirement from the public service. The incumbent informed the hiring manager of his decision to retire on or about March 8, 2016. It was to take effect on June 28, 2016.

[26]  Mr. LeDuc testified that the main duties and responsibilities of the SPPO position were related to human resources (HR) planning. They included developing an HR and a staffing plan, monitoring and reporting on that plan, being a point person on official languages, employment equity, training and development, and ensuring the running of the performance management program. The position is classified CO-03.

[27]  He testified that he ran about 20 appointment processes while at ISED. He stated that with the vacancy at issue, he believes that he followed his normal practice. First, he would solicit interest from the strategic planning unit (8 to 10 people). Second, he would notify other management team members of the vacancy at meetings and encourage them to pass on the names of interested candidates. Finally, he would solicit interest across the entire sector via email, which comprises some 900 employees, mostly in the National Capital Region. He also testified that the incumbent worked with dozens of people and that he would have shared information about his retirement and the vacancy with his network.

[28]  Mr. LeDuc testified that there are no minutes of record of the unit or management meetings where he would have mentioned the upcoming vacancy, and that he could not find a copy of the email he sent out to the sector soliciting interest.

[29]  Sometime in May 2016, the appointee approached Mr. LeDuc and expressed interest in the position. At that time she was working at the AS-07 level as Special Advisor to the assistant deputy minister (ADM) – the same ADM to whom the hiring manager reported. As such, she worked closely with many members of the sector’s management team, including Mr. LeDuc, and would have frequently attended the management meetings at which he shared information about vacancies.

[30]  Mr. LeDuc stated that several conversations occurred with a staffing advisor, Isabelle Jacques, and that he relied heavily on staffing advisors for their expertise. He reviewed the existing SOMC and approved it for the appointment process at issue. He could not recall the extent to which it was modified. The respondent went through the priority clearance process with the PSC. Mr. LeDuc testified that the respondent’s HR advisor told him that an appointment process was available to appoint without advertising and that he chose that course of action.

[31]  He also testified that had more than one person approached him, he would have considered an alternative to the non-advertised route, but that the appointee was the only person who approached him as interested in the position.

[32]  He did not use a test, formal interview, or reference checks to assess the appointee. He did hold an informal interview with her. Based upon her CV and his knowledge of her work as the special advisor to the ADM, he completed an “Assessment Against Statement of Merit Criteria” form (“the Assessment Form”).

[33]  As noted, the NOC was posted on June 6, 2016, with an end-of-waiting-period date of June 10, 2016.

[34]  Upon seeing the NOC, Mr. Hunter asked for an informal discussion with Mr. LeDuc. Mr. Hunter testified that he did so because he was interested in CO-03 positions and they rarely became available. He had participated in the Corporations Canada CO-03 appointment process and was partially qualified through that pool for CO-03 opportunities.

[35]  Mr. Hunter also served as a union steward for the Professional Institute of the Public Service of Canada (PIPSC). He was aware of departmental policy and practices on staffing and testified that in his experience, ISED promotes staffing pools as an effective and efficient means of filling positions.

[36]  One of the things that struck Mr. Hunter about the NOC was the lower education qualification for this CO-03 position compared to other CO-03 positions. He testified that the CO-03 pool had required a degree from a recognized university. He was able to qualify through the pool because he has both a bachelor’s degree and a Masters of Business Administration degree. He testified that 91% of employees in the CO classification hold university degrees and that many hold master’s degrees.

[37]  The complainant and the hiring manager met for their informal discussion on June 14, 2016.

[38]  According to Mr. Hunter, the reason Mr. LeDuc provided at that meeting for using a non-advertised appointment process was that it was “the easiest way to fill the position.” In the complaint he filed on July 6, he went on to say the following of the hiring manager:

… He confirmed that he did not have a written rationale and that HR never told him he had to have a rationale for selecting a non-advertised process. He also stated that he did not realize there was an existing pool (from a competition run by his own sector) and so had no explanation for the complete disregard of this pool of qualified candidates. Obviously, HR did not provide any information about existing pools or how they could or should be used, either.

[39]  When he was asked in cross-examination if he disputed that record of the meeting, Mr. LeDuc said, “No.”

[40]  The only dispute about that meeting is that Mr. LeDuc testified that he explained to the complainant why he had appointed the appointee and how that was possible under the new 2016 staffing management policy. Mr. Hunter does not recall the hiring manager explaining how he had assessed the appointee as qualified.

[41]  After that meeting, the complainant made a series of requests for the written rationale on the decision to use a non-advertised appointment process. He involved Denise Giroux, a staff representative at PIPSC. He requested that “The Use of Non-Advertised Processes” be placed on the agenda for the next union-management meeting.

[42]  Initially, the HR representative, Ms. Jacques, took the position that the informal discussion was meant to remain “informal”. Therefore, no written information would be provided. However, after the complainant, HR representatives, and Ms. Giroux exchanged several emails, a written rationale was provided to him on June 20, 2016.

[43]  During his examination-in-chief, Mr. LeDuc recalled writing the rationale “sometime in May.” However, when during cross-examination he was presented with the sequence of events as just outlined, he conceded that it was probably written after the June 14 meeting. He signed it but did not date it.

[44]  The written rationale is worth quoting in full, as follows:

Rationale to proceed with a Non-advertised process:

A non-advertised process was used to staff position 10347 (CO-03 – Senior Planning and Performance Officer) as a result of the recent retirement announcement of the current incumbent – who will be retiring on June 28^th, 2016. Much of the workload and many of the tasks associated with this position (including the analysis and provision of regular and ad-hoc reports to the Department and Treasury Board on Human Resources and related issues) are ongoing and often required on very tight timelines. As a result, the incumbent must have the required knowledge of the Department/Sector (and Branches), a familiarity with the various processes involved in the preparation and analysis of these reports and the ability to formulate and present the appropriate recommendations for Senior Management. Delays associated with not having a fully qualified candidate in this position would compromise the Sector’s ability to meet departmental requirements and the timing of Sector deliverables through having to wait for a potential candidate to be fully trained on the duties and to be able to address the ongoing workload. The use a [sic] non-advertised appointment in this particular situation (i.e. where there was little time between the announced retirement and actual departure) effectively allowed the staffing of the position without delay (or break in service) and also provided for a suitable overlap period for both transition and knowledge transfer. This staffing mechanism (and the selection of the “right-fit” candidate who was able to begin work immediately) was therefore appropriate and the most advantageous from an organizational perspective, as it allowed the regular operations of the Sector (including meeting all departmental requirements linked to this role) and support for the ADM and Senior Management to continue unimpeded.

[45]  The next day, June 21, 2016, the NAPA was posted, to announce the decision to appoint the appointee to the position.

[46]  Neither the complainant nor the respondent could recall if the previous incumbent worked until June 28, 2016 or consequently whether he and the appointee had had any overlap in the position.

[47]  The complaint was filed on July 6, 2016.

[48]  Another meeting took place, on August 11, during the exchange-of-information period. Mr. LeDuc could not recall it. Mr. Hunter testified that he attended, along with Ms. Giroux, Mr. LeDuc, and an HR advisor named Trisha Pagnutti. Mr. Hunter testified that at the meeting, the respondent still took the position that a written rationale was not required, and that the requirement in the policy for one is satisfied when the hiring manager completes the assessment of the appointee and a letter of offer is signed.

[49]  At or following that meeting, the complainant received the appointee’s CV and the Assessment Form, from which he learned that the appointee did not have a degree from a recognized university but instead a secondary school diploma.

[50]  Under the “Education” portion of the Assessment Form, the qualification for a post-secondary program or acceptable combination of education, training, and/or experience is supplemented by a third option, “… OR A secondary School [sic] diploma or employer approved alternatives.” However, that third option is crossed out with a large “X”. In the assessment portion, the initial assessment that “[the appointee] has a secondary School [sic] diploma and has the required combination of training and experience required for the position” is supplemented by a handwritten note adding several additional details about her experience.

[51]  Mr. LeDuc testified that he does not know who “X”-ed out the third education option or who added the handwritten note.

[52]  Following the exchange of information, on September 9, 2016, the complainant filed his allegations as required in the staffing complaint process. He alleged the hiring manager demonstrated personal favouritism by assessing the appointee against the SOMC using inadequate methods.

V. Analysis

A. Issue 1: Was there abuse of authority in the choice of a non-advertised appointment process?

1. Introductory comments

[53]  The complainant argued that a series of flaws arose in the administration of the appointment process for the position at issue, which add up to bad faith and therefore abuse of authority in the choice to use a non-advertised appointment process as well as the allegations of personal favouritism. In summary, the alleged flaws include the following:

1. choosing to use a non-advertised appointment process without preparing a written rationale in advance;
2. not knowing that a written rationale needed to be provided and, at least initially, refusing to provide one;
3. providing reasons in the written rationale (i.e., the urgency of filling the position and creating some overlap) that do not make sense given the facts of the position at issue;
4. including in the rationale a qualification that was not included in the SOMC;
5. failing to even consider using a pre-qualified pool that was still in effect in the Branch;
6. the hiring manager and HR representatives failing to understand and apply the Staffing Management Policy concerning non-advertised appointment processes;
7. establishing a lower educational essential qualification in the SOMC than ISED normally uses at the CO-03 group and level, to allow for the appointment of the selected candidate;
8. conducting the assessment process without any formal interview or testing process and completing the Assessment Form without demonstrating how each essential qualification was met; and
9. through the choice to use a non-advertised appointment process, and these additional flaws, conducting an appointment process that demonstrated personal favouritism towards the appointee.

[54]  The last three alleged flaws will be dealt with primarily in the analysis of issue 2, which are the allegations of personal favouritism.

[55]  When analyzing the flaws, each must of course be given some individual consideration. If none of these alleged flaws are valid, no conclusion of abuse of authority can be reached. And even if some are found valid, they may not reach the level required to find that the complaint is substantiated.

[56]  However, the appointment process as a whole must also be analyzed. The jurisprudence established by the Board and its predecessors is that a series of relatively minor errors can add up to a finding of bad faith, tainting the appointment process as a whole and justifying the finding that there was abuse of authority.

[57]  Intent is not required. Both the complainant and the respondent pointed me to cases in which a series of omissions or mistakes amounting to serious carelessness or recklessness could add up to a finding of bad faith. For example, the respondent cited Jacobson v. Chairperson of the Immigration and Refugee Board, 2009 PSST 19 at para. 52, and Phelan v. Deputy Minister of the Department of Fisheries and Oceans, 2016 PSLREB 115 at para. 20, as authorities for that principle, although it was quick to point out that in neither case did the series of errors reach such a level that the complaints were substantiated.

[58]  The respondent acknowledged that in this case, some of the claimed flaws were errors and omissions. It framed the issue before me by situating this case between Morris v. Commissioner of Correctional Services of Canada, 2009 PSST 9, and Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 24.

[59]  In Morris, the former Public Service Staffing Tribunal (PSST) found a series of errors and omissions in the appointment process that added up to a “significant lack of transparency” (at paragraph 88) but that did not reach the level of serious carelessness or recklessness such that bad faith could be imputed. However, in Robert and Sabourin the series of errors, including the lack of written rationales three times over, the lack of a SOMC, the failure to assess the appointee’s qualifications in a timely manner, the filling of a position with someone who did not meet the language proficiency, and the improper notification, did add up to a finding of abuse of authority due to bad faith in the application of merit.

[60]  The respondent’s framing of the debate as between Morris and Robert and Sabourin was borrowed from Jarvo v. Deputy Minister of National Defence, 2011 PSST 6 at paras. 16 and 17. In that case, the PSST reached a similar conclusion to that in Morris. While it found some deficiencies in the preparation of the rationale for a non-advertised appointment process and some omissions in the assessment of qualifications, it found no abuse of authority.

[61]  I will return to this discussion after analyzing the individual components of the allegations. However, before analyzing each one, some further introduction of the policy framework is required. While I am not bound by the policies, they are useful to review as their intent is to guide hiring managers on how to conduct appointment processes to ensure they are in compliance with the PSEA.

[62]  As noted, shortly before this staffing action took place, on April 1, 2016, the PSC’s New Directions in Staffing took effect. Before then, the PSC had a stand-alone Choice of Appointment Process policy, which was one of several specific policies. As a result, an analysis of that policy is a feature of many Board and PSST decisions in which there was an allegation of abuse of authority in the choice to use a non-advertised appointment process. That policy required deputy heads to establish criteria for using non-advertised processes and to “… ensure that a written rationale demonstrates how a non-advertised process meets the established criteria and the appointment values …”

[63]  As of April 1, 2016, the PSC’s direction to deputy heads was consolidated into a single document called the Appointment Policy. It is a much higher-level document that effectively delegates detailed policy making to deputy heads. It sets out broad goals, including the expected result that “… [a]ppointment processes [are] conducted in a fair and transparent manner and in good faith …” which reflects the principles outlined in the preamble of the PSEA.

[64]  Also of relevance in this case is Annex B to the Appointment Policy, called Information Requirement, which obliges deputy heads to properly document and retain information for a minimum of five years after the last administrative action for each appointment. Included in the list as number 5 are assessment and results for all candidates and as number 8, “The articulation of the selection decision.”

[65]  As noted, associated with the New Directions in Staffing initiative, the ISED adopted its Staffing Management Policy. It details the requirements to “articulate, in writing, selection decisions” along with the requirement to develop a “brief written explanation” for the use of “[n]on-advertised indeterminate appointment for reasons other than those specified in Annex A.” It was not argued that the appointment at issue fits the list of exceptions, so the content of Annex A is not relevant to this case.

2. Analysis of the individual allegations

[66]  I will now analyze the individual alleged flaws.

[67]  With respect to allegation (a), Mr. LeDuc initially testified that he wrote the rationale in May 2016. However, when he was confronted with the sequence of events and Mr. Hunter’s testimony, he eventually agreed that he probably wrote it after the informal discussion on June 14, 2016. In any event, the written rationale is not dated.

[68]  Overall, I give far more credence to Mr. Hunter’s testimony and evidence. Following many questions, Mr. LeDuc simply could not recall the details of meetings and did not have notes or documents to back up his assertions. Mr. Hunter had a clear recollection of the events of 2016, which were backed up by the detailed notes he included in his complaint and in the September 2016 allegations document.

[69]  Based on the evidence before me, I conclude that the rationale was written between June 14 and 20, 2016. The fact that the rationale was not dated and that the respondent could not produce a coherent narrative of how it was constructed is a significant omission that undermines the principle of transparency of employment practices outlined in the preamble of the PSEA.

[70]  This was exacerbated by the initial refusal by the hiring manager and the HR representative to provide the complainant with the written rationale (allegation b). While it was provided in short order (June 20), as late as August, during the exchange-of-information period, the respondent stated that there was no obligation for it to provide one. Clearly, this undermined the transparency of the appointment process, and it appears designed to frustrate even those who file complaints under s. 77(1)(b) of the PSEA, not to mention those who engage only as far as an informal discussion.

[71]  Allegation (c) gets into the content of the written rationale itself, and it is here that more serious problems arise.

[72]  The evidence shows that the incumbent announced his retirement on March 8, some 3.5 months before his departure date of June 28. The rationale claims that “… there was little time between the announced retirement and actual departure …”

[73]  A period of 3.5 months may not be very long to conduct an advertised internal appointment process. The problem lies more in reconciling the statement in the rationale with the actual sequence of events. According to the hiring manager, among the steps he took was sending an email to the entire sector seeking interested candidates. As no actual evidence of it was provided, this claim is disputed. However, according to the hiring manager, had more than one person expressed interest, he would have considered more than one candidate. Thus, the act of sending an expression of interest out to 900 people and setting up a process to consider multiple candidates also had the potential of delaying an appointment.

[74]  What is clear from the evidence is that the appointee approached Mr. LeDuc only sometime in May, more than two months after he had become aware of the impending vacancy. I can understand that by May, with the incumbent’s retirement less than eight weeks away, the hiring manager would have become anxious to fill the position any way he could. What is not clear – if the stated rationale was in fact correct – is why the manager did not take further steps to find interested candidates given the significant passage of time.

[75]  The rationale states that the use of a non-advertised appointment process “… also provided for a suitable overlap period for both transition and knowledge transfer.” And yet, that appointment process resulted in an indeterminate appointment of the appointee effective June 21, 2016, just one week before the previous incumbent retired. There is a weak link between the stated rationale and the facts of the situation.

[76]  In short, the respondent defended its decision to use a non-advertised process in part by indicating it sent out an expression of interest to a very large number of employees, but without properly documenting it. The respondent then developed a rationale after the fact that emphasized the urgency of finding a candidate before the departure of the incumbent, but that urgency is not evident in the actions it describes taking between February (when it learned of the vacancy) and May (when the eventual appointee came forward). These facts lead me to conclude that the rationale developed was not prepared in good faith.

[77]  The complainant also alleges (allegation d) that the statement in the rationale that “… the incumbent must have the required knowledge of the Department/Sector (and Branches) …” is “not found” in the SOMC. It does include an essential qualification worded as, “Knowledge of the organization and mandate of Innovation, Science and Economic Development Canada.” In fact, they are very similar concepts. While there are differences in wording and form, the two cover more or less the same ground. However, the “rationale” version could be interpreted as being more precise, by focusing on the “sector” as opposed to ISED as a whole. Therefore, it can be read as a narrowing of the SOMC, which is at least a minor error.

[78]  Allegation (e) is that the respondent did not consider using the pre-qualified CO-03 pool that was in effect. The hiring manager had a good rationale as to why that pool might not have made sense to use. He described the position posted in the pool as more of a “manager” position, with a focus on work with external clients and stakeholders, and the SPPO position as more “corporate” in nature. However, there is no evidence that he even considered the pool. The evidence shows that he became aware of it only on June 14, when the complainant spoke with him. Given that he “closely consulted” with HR, this suggests that HR was also not aware of or chose not to mention the pool, even though more than two months passed between when the previous incumbent announced his retirement and the appointee came forward.

[79]  More significantly, there is no evidence that after learning about the CO-03 pool from the complainant, along with his interest in the position at issue, the hiring manager stopped to consider him or other partially qualified candidates in the pool. The rationale — written after June 14 — makes no mention of him doing so. None of the evidence proffered at the hearing suggests that he did so. Instead, seven days after meeting with the complainant, the respondent posted the NAPA announcing the appointee’s appointment.

[80]  The complainant argues that all that adds up to allegation (f), which is that the hiring manager and the HR representatives failed to understand and apply the Staffing Management Policy. I agree. It is clear from the hiring manager’s testimony that he was unfamiliar with the policy’s detailed provisions. He stated that he relied heavily on HR’s advice at every step of the appointment process, but HR did not bring him the details of the policy. Even after the complaint was filed, the respondent suggested that no written rationale needed to be provided as part of the appointment process. Therefore, it fell to the complainant and his bargaining agent to point out the provisions of the policy requiring a written rationale, to insist on having access to that rationale, and to question whether it made sense.

[81]  Later in this decision, I find that there is some merit to the complainant’s allegation (h), on the completion of the Assessment Form. Essentially, I find there were deficiencies and errors in its completion. While they do not lead to a finding that the appointment was without merit, they do add to the analysis undertaken in this section of the respondent’s failure to accurately document the decisions it made during the non-advertised appointment process.

3. Overall analysis

[82]  Do the errors and omissions add up to evidence of carelessness and recklessness amounting to bad faith such that I should find that there was abuse of authority in this case?

[83]  The complainant cited three cases in which complaints of abuse of authority in the choice of the appointment process were substantiated.

[84]  The complainant identified three factors in Cameron and Maheux v. Deputy Head of Service Canada, 2008 PSST 16, that are common with this case and that led the PSST to its conclusion, which were a staffing need that was less urgent than was stated in the rationale, a weak assessment process, and a rationale prepared after the staffing decision was made. Similar findings led to a substantiated complaint in Ayotte v. Deputy Minister of National Defence, 2009 PSST 21 and 2010 PSST 16.

[85]  In Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 7, several issues arose with respect to preparing written rationales, which led to the following conclusion, at paragraph 151:

151 The Tribunal is concerned that the requirement for producing a rationale for a non-advertised appointment appears to be only the filing of a document without consideration of its content. In these complaints, there was no effective review of the reasons involved in the rationale.

[86]  Both the respondent and the PSC emphasized that the choice of the appointment process lies with deputy heads. The preamble of the PSEA speaks to providing public service managers with the flexibility necessary to staff positions, which it reinforces in s. 33. That provision allows for using either an advertised or a non-advertised appointment process. It is also reinforced in s. 30(4), which indicates that the PSC (and by extension a deputy head) “… is not required to consider more than one person in order for an appointment to be made on the basis of merit.”

[87]  The respondent cited a raft of cases in which those principles were upheld, including Phelan, Jarvo, Soccar v. the Commissioner of the Royal Canadian Mounted Police, 2013 PSST 14, and Stroz-Breton v. the Deputy Minister of National Defence, 2013 PSST 13, to provide just a few examples. In all those cases, complaints about the choice of the appointment process were dismissed, often in spite of errors or omissions.

[88]  As indicated earlier, the respondent took the position that this case is more like Morris than Robert and Sabourin or other cases cited by the complainant where abuse of authority was founded. Ultimately, in Morris the PSST found serious errors that did not warrant a finding of abuse of authority, but did include some strong observations, as follows:

100  The respondent did not comply with PSC policy, resulting in errors and omissions, particularly in documenting the assessment and the justification for this non‑advertised appointment process. However the Tribunal finds, based on the evidence, that the respondent’s errors and omissions, while careless and deficient in terms of transparency, do not reach the level of serious carelessness or recklessness where bad faith could be imputed.

101  Having said this, the Tribunal wishes to emphasize that more could have been done to alleviate the legitimate concerns of the complainant that the appointment process was not transparent. Documenting decisions is essential for the proper administration of appointments. Delegated managers should be particularly diligent in this regard given the broad discretion afforded to them under the PSEA. Timely completion of comprehensive records of decisions helps to ensure transparent employment practices.

[89]  In my view, this case can be distinguished from Morris in one significant way. In Morris, an unforeseen and urgent vacancy had to be filled on an acting basis in a highly operational situation (involving a correctional facility). This case concerns an indeterminate vacancy caused by a retirement that was announced several months in advance.

[90]  Furthermore, the errors in this case amount to more than a mere failure to complete the steps required for transparency. In this case, the hiring manager and the HR representatives did not take responsibility for ensuring the quality of documentation. This included the lack of written rationale at the decision stage, the initial refusal to provide one to a potential candidate, the subsequent position that none was required, the use of one that did not make sense given the situation, the fact that the rationale was not signed and dated, and the fact that key documentation was not kept, such as the email to the sector.

[91]  I am left to conclude that what really drove the decision making in this case was the hiring manager’s initial assertion, on June 14, 2016, that the non-advertised appointment process was simply “the easiest way to fill the position” and that rather than helping him really understand the appointment process, the  respondent’s HR advisor used the increased policy flexibility offered through the New Directions in Staffing framework to offer the manager justification for use of a non-advertised appointment process, in spite of the series of errors and omissions. This might have met the goal of “efficiency” incorporated into ISED’s Staffing Management Policy, but it is harder to see how it reconciles with the goal of “staffing integrity” in that policy or the principles of fairness and transparency in the PSEA.

[92]  Such a position effectively renders meaningless s. 77(1)(b) of the PSEA, which allows for complaints to be made about the choice between an advertised and a non-advertised appointment process.

[93]  Ultimately, the  respondent’s actions fall short of the requirement to properly document and retain information about an  appointment process, as required in the PSC’s Appointment Policy, and fall short of the provisions of its Staffing Management Policy, which requires articulating selection process decisions in writing. I agree with the decision maker in Beyak — this requirement is not merely to produce a written rationale but to produce one that makes sense.

[94]  I do not believe that strong observations in obiter, as in Morris, are sufficient to send a message about the problems with the appointment process in this case.

[95]  For all of the above reasons, I conclude that the respondent’s course of action amounted to bad faith, which is a form of abuse of authority.

B. Issue 2: Was there abuse of authority in the application of merit due to personal favouritism?

[96]  The complainant argued that the noted series of flaws in the administration of the appointment process added up to an abuse of authority. As a reminder, they include the following:

g) establishing a lower educational qualification in the SOMC than ISED normally uses at the CO-03 group and level, to allow appointing the preferred candidate;

h) conducting the assessment process without any formal interview or testing process and completing the Assessment Form, which failed to demonstrate how each essential qualification was met; and

i) through the choice to use a non-advertised appointment process, and these additional flaws, conducting an appointment process that demonstrated personal favouritism towards the appointee.

[97]  The complainant’s allegation of personal favouritism is rooted in the assertion that because the appointee and the hiring manager reported to the same ADM, they had a personal relationship that resulted in her being selected as the favoured candidate. He argued that she had “inside information” about the vacancy because she sat at the management team meeting at which information about vacancies was shared. He alleged that the hiring manager established the SOMC with her in mind, specifically by eliminating the qualification for a university degree that is common in the CO community. Finally, he completed the Assessment Form based entirely on her CV and on his personal knowledge based on having worked with her over a two-year period, when he should have used more robust assessment methods.

[98]  On the education qualification, the complainant questioned whether the appointee met the essential qualification. He noted the fact that the respondent did not produce evidence that she held a secondary school diploma. He pointed to the handwritten note in the Assessment Form as an indication that further proof and justification should have been required. Referencing Ross v. Commissioner of the Correctional Service of Canada, 2017 PSLREB 48 at para. 108, he argued that I should accept neither the Assessment Form nor the appointee’s CV on their face.

[99]  While conceding that s. 36 of the PSEA gives the PSC (and by extension the deputy head) wide latitude when selecting any assessment method it considers appropriate to establishing merit, the complainant said that the completed Assessment Form has several weaknesses. Again referencing Ross, he argued that the Board should reject a side-by-side assessment that lacks sufficient detail. The lack of examples in the Assessment Form indicates a superficial evaluation of the appointee’s capacity. In particular, he cited the essential qualification of “[a]bility to communicate effectively both orally and in writing”, which was assessed without any reference to having reviewed written communication. He took the position that it is not possible to qualify someone for that essential qualification solely on the basis of a résumé and personal knowledge.

[100]  The complainant argued that a similar fact situation arose in De Santis v. Commissioner of the Correctional Service of Canada, 2016 PSLREB 34. In that case, at paragraph 33, the former PSLREB recognized an assessment based on personal knowledge as a legitimate tool (if it is done properly). However, in that case, the assessment was done by a hiring manager who was the employee’s supervisor. As the hiring manager in this case was not the appointee’s supervisor and had never completed a performance assessment of her work, he could not presume to have a detailed enough knowledge of her knowledge and abilities and therefore should have chosen other assessment forms.

[101]  The complainant reinforced this point by citing Thompson v. President of the Canada Border Services Agency, 2017 PSLREB 22. The complaint in that case was rooted in an appointment assessment form that “lacked detail in some sections”. It was dismissed because the former PSLREB found it legitimate that a direct supervisor would be able to assess her employee’s ability to meet the essential qualifications of the position. In this case, in the complainant’s eyes, the hiring manager did not meet that test.

[102]  Finally, citing Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007, the complainant argued that evidence of personal favouritism can be direct but that “… it will often be a question of circumstantial evidence where some … comments or events prior to, and during, the appointment process will have to be reviewed” (at paragraph 44). The circumstantial evidence in this case includes the lower education qualification, the weaknesses in the Assessment Form, and the fact that the hiring manager stated that he would have changed the appointment process had someone else expressed an interest but did not when the complainant expressed interest at the June 14 informal discussion.

[103]  The respondent countered these arguments by stating that the complainant failed to demonstrate that there was a personal relationship between the hiring manager and the appointee. Also citing Glasgow, it argued that it was Parliament’s intention that “personal” and “favouritism” be read together and “that it is personal favouritism, not other types of favouritism, that constitutes abuse of authority” (emphasis in the original, paragraph 39). Glasgow goes on to clarify at paragraph 41 that complainants must establish “undue personal interests, such as a personal relationship between the person selecting and the appointee …” or the selection of a person “… to gain personal favour with someone else …” to establish personal favouritism.

[104]  Citing Carlson-Needham v. Deputy Minister of National Defence, 2007 PSST 38, the respondent argued that “… a complainant must appear before the Tribunal with convincing evidence demonstrating personal favouritism and not merely make an allegation based on perceptions and irrelevant facts” (at paragraph 52). “Thus, a complainant must prove, on a balance of probabilities, that the person was appointed because of personal favouritism based on factors other than merit” (at paragraph 54).

[105]  The respondent referenced Bain v. Deputy Minister of Natural Resources Canada, 2011 PSST 0028, and Beyak, in which personal favouritism was alleged, to argue that I should not find personal favouritism founded in this case.

[106]  In his testimony, the hiring manager stated that he had no personal relationship with the appointee. They had a purely professional working relationship solely from the time they worked together at ISED, which did not extend outside the workplace. While his testimony had many discrepancies with respect to the events surrounding the decision to use a non-advertised appointment process, in this area he was clear and unequivocal. The complainant proffered no direct evidence to counter that testimony.

[107]  As for the indirect evidence, I find it unconvincing.

[108]  The hiring manager testified that the SOMC for this position was reviewed and adapted from an earlier version used when the previous incumbent was appointed. There is no evidence that he lowered the educational qualification to facilitate the appointee’s appointment. The educational qualifications were the completion of a post-secondary degree or an appropriate combination of education, training, or experience. Managers have the authority under s. 30 of the PSEA to establish the essential qualifications for the work to be performed. The hiring manager spoke knowledgably about the unique nature of the SPPO position and distinguished it from other CO positions, including the one captured by the CO-03 pool that required a university degree.

[109]  The complainant’s point that “91%” of employees in the CO classification hold a university degree may be true, but it does not establish a violation if the employer has not set out that minimum requirement in a qualification standard in accordance with s. 31 of the PSEA.

[110]  However, the handwritten note on the education portion of the Assessment Form is cause for comment. The fact that Mr. LeDuc did not know who added the additional justification is indicative of a sloppy attention to record-keeping in this appointment process. It leads one to suspect that someone in HR felt that the hiring manager’s typewritten notes on the form were insufficient to establish that the appointee met the educational qualifications. This adds to the analysis under Issue #1, which was that the respondent was more concerned about justifying its decision than insisting on the quality of the documentation. However, that does not lead to a conclusion that the appointee did not meet that essential qualification.

[111]  I place no weight on the fact that the respondent did not bring before me proof that the appointee has a secondary school diploma. The complainant did not make a production request for the diploma. The appointee’s CV lists her education and documents her experience of progressing from a CR-04 to an AS-07 position over the course of 16 years. Under these circumstances the fact that a diploma was not placed before me does not convince me the education/experience qualification was not met, as sought by the complainant.

[112]  I find that there is a contradiction in the complainant’s arguments that on the one hand, the hiring manager knew the appointee so well that personal favouritism was at play, while on the other hand arguing that he did not know her well enough to assess her because he was not her supervisor. On a balance of probabilities, I am satisfied that he had sufficient knowledge of the candidate to allow him to assess her merit in relation to the essential qualifications.

[113]  For the above reasons, I conclude that the allegations of personal favouritism amounting to abuse of authority are unfounded. Errors and deficiencies certainly arose in completing the Assessment Form, and the hiring manager could have used more rigorous assessment methods to assess some of the essential qualifications. He might have even been wise to, to avoid the complainant’s allegations. But his decision not to do so did not amount to an abuse of authority.

VI. Corrective action

[114]  As described, while I find that there was abuse of authority in the choice to use a non-advertised appointment process, I find the allegation of personal favouritism unfounded. The complainant did not convince me that the appointee was appointed as a result of an abuse of authority. This is similar to the result in Cameron and Maheux. I reach the conclusion that the facts of this case should not result in a revocation of the appointment.

[115]  Citing Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 0034, and Ayotte (2010 PSST 0016), the complainant and the respondent agreed that beyond a declaration or revocation, the Board’s remedial powers in this situation would be to make recommendations. The complainant requested that the respondent provide training for the hiring manager and ISED with respect to the provisions of the PSEA and ISED policies on the effective documentation of the decision to use a non-advertised appointment process. The training should cover the requirements of the PSEA, the significance of the responsibilities upon delegated managers under the PSEA, as well as the manner in which human resources carry out their advisory function to meet the requirements of the PSEA. I so recommend and encourage the respondent to refer to this decision in its training.

[116]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

 

VII. Order

[117]  The complaint is substantiated in part. I declare that an abuse of authority occurred in the choice to use an internal non-advertised appointment process.

August 23, 2019.

David Orfald,

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