File: 2013-0082
Issued at: Ottawa, August 8, 2014
TOBY-LEE SAUNDERS
AND
THE DEPUTY MINISTER OF NATIONAL DEFENCE
Respondent
AND
OTHER PARTIES
Matter Complaint of abuse of authority under s. 65(1) of the Public Service Employment Act
Decision The complaint is dismissed
Decision rendered by John Mooney, Vice-Chairperson
Language of Decision English
Indexed Saunders v. Deputy Minister of National Defence
Neutral Citation 2014 PSST 13
REASONS FOR DECISION
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Introduction
[1]
Toby-Lee Saunders, the complainant, occupied a Dental Care Program Clerk (DCP Clerk) position at the CR-04 group and level at the Department of National Defence (DND). She alleges that the Deputy Minister of National Defence, the respondent, abused its authority in several ways when it selected her for lay-off. Her principal allegations are that she and the other person assessed in the process for the selection of employees for retention or lay-off (SERLO) held positions that were not similar, that members of the assessment board and a referee were biased against her, and that the respondent discriminated against her because of her disability.
[2]
The respondent denies these allegations and maintains that there was no abuse of authority in the selection of the complainant for lay-off. It asserts that the two employees assessed in the SERLO process held similar positions with similar duties. It also maintains that the assessment board members and the referee were not biased against the complainant and that the complainant’s disability was not a factor in the decision to lay her off.
[3]
The Public Service Commission (PSC) did not attend the hearing but submitted written arguments in which it provided its interpretation of abuse of authority and set out the relevant policies and guides that apply to SERLO processes. The PSC did not take a position regarding the merits of the complaint.
[4]
The Canadian Human Rights Commission (CHRC) did not provide any comments regarding the complaint.
[5]
For the reasons set out below, the Tribunal finds that the complainant failed to establish that the respondent abused its authority in selecting her for lay-off.
Background
[6]
In 2012, as a result of budget reduction initiatives, the respondent reviewed its operations in the 1 Dental Unit located in Edmonton, Alberta. It decided that the two DCP Clerk positions within the unit would be reduced to one due to potential workload reductions.
[7]
On November 22, 2012, Lieutenant Colonel (LCol) Glenda Ross, the Commanding Officer of the Edmonton detachment, informed the complainant that she was an “affected” employee, that is, that her services may no longer be required due to a lack of work or discontinuance of a function.
[8]
On January 23, 2013, Rita Williams, Human Resources (HR) Officer, informed the complainant that a SERLO process would be held to determine which of the two employees would be laid-off.
[9]
The SERLO process was conducted by Ms. Williams, who chaired the assessment board, LCol Ross and Captain Emily Girard, Support Manager 1 Field Ambulance. It was comprised of four phases: a review of the candidate’s cover letter and résumé, an interview, a reference check with the employee’s manager and another one with a person of the candidate’s choosing.
[10]
The assessment board established a Statement of Merit Criteria (SMC) for the SERLO process. The board concluded that both employees involved in the SERLO process met all the essential the qualifications set out in the SMC. There were no asset qualifications.
[11]
At the beginning of the SERLO process, the respondent informed both employees involved that “effective interpersonal relationships” would be used as a selection criterion to identify who among the qualified candidates would be retained for employment. Although the complainant met that requirement, Karen Skinner, the other DCP Clerk assessed in the SERLO process, achieved a better result for that qualification and was therefore chosen for retention.
[12]
On February 15, 2013, the respondent notified the complainant that she had been selected for lay-off as a result of the SERLO process.
[13]
On March 4, 2013, the complainant brought a complaint of abuse of authority to the Public Service Staffing Tribunal (the Tribunal) pursuant to s. 65(1) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (PSEA).
[14]
The complainant gave notice to the CHRC that she intended to raise an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). The CHRC informed the Tribunal that it intended to make submissions in this complaint but later decided not to do so.
Issues
[15]
The Tribunal must address the following issues in deciding whether the respondent abused its authority in selecting the complainant for lay-off:
(i) Were the complainant and Ms. Skinner employed in similar positions or performing similar duties at the same occupational group and level?
(ii) Was there bias against the complainant?
(iii) Did the respondent discriminate against the complainant?
(iv) Where there any other irregularities in the SERLO process?
Analysis
[16]
The complainant alleges that the respondent abused its authority in selecting her for lay-off. The provisions governing lay-off are found in ss. 64 and 65 of the PSEA. The relevant parts of those sections read as follows:
64. (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.
(2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head’s organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.
[...]
65. (1) Where some but not all of the employees in a part of an organization are informed by the deputy head that they will be laid off, any employee selected for lay-off may make a complaint to the Tribunal, in the manner and within the time fixed by the Tribunal’s regulations, that his or her selection constituted an abuse of authority.
[...]
[17]
Abuse of authority is not defined in the PSEA; 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 has been established in the Tribunal’s case law, this wording indicates that abuse of authority must be interpreted broadly and is not limited to bad faith and personal favouritism. Abuse of authority can also include errors, improper conduct and omissions. The nature and seriousness of the error, improper conduct or omission will determine whether or not it constitutes abuse of authority. See, for example, Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008.
[19]
Although the above jurisprudence relates to complaints regarding appointments made under s. 77(1) of the PSEA, complaints of abuse of authority under s. 65(1) of the PSEA are not interpreted differently. See Maclean v. Secretary of the Treasury Board of Canada Secretariat, 2012 PSST 21 at para 93; Raymond v. Chief Statistician of Canada, 2013 PSST 25 at para. 13.
[20]
The complainant has the burden to prove, on a balance of probabilities, that there was abuse of authority in the selection for lay-off. See Raymond at para. 16.
Issue I: Were the complainant and Ms. Skinner employed in similar positions or performing similar duties in the same occupational group and level?
[21]
The complainant alleges that she should not have been included in the SERLO process with Ms. Skinner since they do not occupy similar positions or perform similar duties as required by s. 21(1) of the Public Service Employment Regulations, (SOR/2005-334), which reads as follows:
21. (1) If the services of one or more employees of a part of an organization are no longer required in accordance with section 64 of the Act, the deputy head shall assess the merit of the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify, in accordance with merit, the employees who are to be retained having regard to the continuing functions of that part of the organization and the remaining employees who are to be advised that their services are no longer required and are to be laid off.
[22]
The complainant testified that she joined DND in 1993 or 1994. She has worked as a DCP Clerk since 2008. She worked on the coordination of the Dental Care Program. She gave managers weekly statistical reports on the dental fitness of members of the Canadian Forces (CF). For example, on one occasion, the respondent had to send 72 soldiers to Afghanistan. The complainant went through the soldiers’ dental charts to determine which soldiers were fit and to set up a time for treatment if needed.
[23]
The complainant testified that she was never told that there was another DCP Clerk position in the Dental Unit. Staff in that Unit commonly referred to Ms. Skinner as the Blue Cross Clerk. The complainant first learned that there was another DCP Clerk when she was asked to participate in the SERLO process.
[24]
The complainant reviewed the six key activities listed in the work description for the DCP Clerk position. The first one relates to providing administrative support and guidance to DCP management and coordinating and reporting on results of DCP activities. The complainant stated that Ms. Skinner never performed those duties.
[25]
The complainant added that she did not know whether Ms. Skinner performed the duties described in the fifth key activity of that work description, namely compiling dental data into statistical reports.
[26]
The other four key activities deal with providing logistical support for dental procedures and records, updating dental databases, collecting and storing data input and retrieval, and participating in meetings regarding service delivery. The complainant stated that all dental clerks and assistants perform those general duties.
[27]
Ms. Williams explained that there is only one collective work description for all DCP Clerk CR-04 positions in DND, which applies nationwide. The work description used in the Edmonton office contains the position numbers of the two DCP Clerk CR-04 positions in Edmonton. The complainant’s position number is 331750 and Ms. Skinner’s is 804666. The same positions appear on the organization chart for the 1 Dental Unit Detachment Edmonton (2069). Ms. Williams also tendered into evidence two Job Data reports, which describe the two DCP Clerk positions in Edmonton with the same position numbers found in the work description for the DCP Clerk position referred to above.
[28]
LCol Ross was the Detachment Commander of 1 Dental Unit in Edmonton from August 2011 to August 2013. She stated that both the complainant and Ms. Skinner occupy DCP Clerk positions at the CR-04 group and level. At staff meetings, Ms. Skinner was referred to as the Blue Cross Clerk because she worked on files involving that organization, but that is not the official title of her position. The position’s official title is DCP Clerk CR-04 as indicated in the work description and organization chart mentioned above.
[29]
LCol Ross testified that the Dental Care Program encompasses all duties related to dental treatment, including monitoring the dental fitness of CF members and ensuring they are fit for deployment. The complainant deals with in-house treatment, such as verifying who is fit for deployment. Ms. Skinner deals more with outside treatment, which is referring employees to dentists outside the organization and ensuring a follow‑up of their condition. She also deals with the payment of Blue Cross services.
[30]
The Tribunal is satisfied that the complainant and Ms. Skinner are employed in similar positions and perform similar duties at the same occupational group and level. The evidence establishes that both positions have the same title and that the same generic work description applies to both. The complainant herself testified that Ms. Skinner and she performed most of the key activities listed in the work description. Although there may be some differences in their tasks (Ms. Skinner processes Blue Cross claims, which the complainant does not), the essence of both positions is to examine the dental condition of CF members and make arrangements for dental treatment when necessary.
Issue II: Was there bias against the complainant?
[31]
The complainant alleges that two members of the assessment board and a referee were biased against her.
[32]
To establish bias, it is not necessary that actual bias is found. A reasonable apprehension of bias may constitute abuse of authority. See Denny v. Deputy Minister of National Defence, 2009 PSST 0029 at para. 125, referring to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394.
[33]
The Tribunal determined in Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010, that persons assigned to assess candidates in an appointment process have the duty to conduct an unbiased assessment that does not give rise to a reasonable apprehension of bias. At para. 74 in Gignac, the Tribunal adapted the test set out in Committee for Justice and Liberty to fit the context of bias in an appointment process, as follows:
Where bias is alleged, the following test can be used to analyze this allegation, while taking into account the circumstances surrounding it: If a relatively informed bystander can reasonably perceive bias on the part of one or more persons responsible for assessment, the Tribunal can conclude that abuse of authority exists.
[34]
The complainant stated that in the past several years, she presented grievances to management and complaints to the CHRC involving the respondent. The complainant and the respondent submitted a Joint Statement of Facts in which they state that the complainant filed a number of grievances prior to April 2009. These grievances were withdrawn after they were settled. The Joint Statement of Facts also states that the complainant filed two grievances in late 2011. It specifies that these grievances were against management generally. They did not reach the third level of the grievance procedure.
[35]
The complainant testified that several of her grievances dealt with delays in updating her Voice Recognition Technology (VRT), a system by which the computer types what a person dictates. The Individual Grievance Presentation form signed by the complainant on December 5, 2011, with respect to one of her grievances, indicates that the complainant’s grievance deals with harassment, but it gives no further details on that matter.
[36]
The complainant alleges that LCol Ross, as the Commanding Officer of the Edmonton Detachment, knew about these grievances and complaints and was therefore biased against her. She claims that this bias affected LCol Ross’ assessment of her qualifications.
[37]
The complainant puts forth the same argument with respect to Ms. Williams, who chaired the assessment board. According to the complainant, Ms. Williams was also biased against her because, as an HR Officer, she was part of management and was therefore aware of those grievances and complaints against the respondent.
[38]
The grievances were not directed at LCol Ross and Ms. Williams personally, but, as indicated in the Joint Statement of Facts, against “management generally”. Those two persons were therefore not the direct object of those grievances. Both LCol Ross and Ms. Williams testified that they were aware of the grievances and complaints, but were not familiar with their details.
[39]
The complainant argues that the mere knowledge of the fact that the complainant presented grievances and complaints against “management” rendered LCol Ross and Ms. Williams biased against her because they are part of management. The Tribunal does not agree with that proposition. The fact of presenting a grievance or complaint is insufficient in itself to give rise to a reasonable apprehension of bias on the part of a member of the management team.
[40]
The evidence regarding the complainant’s grievances and complaints only refers to the allegation of delays in updating the VRT and, in one instance, of harassment. The evidence does not indicate the existence of any poor relationships between the complainant and LCol Ross or Ms. Williams. As indicated above, the grievances and complaints were not directed at LCol Ross or Ms. Williams personally. The evidence before the Tribunal is therefore insufficient to establish that those grievances and complaints affected LCol Ross’ and Ms. Williams’ assessment of the complainant’s qualifications.
[41]
The complainant also alleges that Master Warrant Officer (MWO) Anna J. Aldrich, who had been the complainant’s manager for a long time and who acted as her referee, was biased against her because of the grievances and complaints mentioned above.
[42]
The complainant testified that she specifically asked Ms. Williams not to ask MWO Aldrich for a reference. She did not remember when that conversation took place. Ms. Williams testified that she did not recall such a conversation.
[43]
LCol Ross and Ms. Williams testified that they told the complainant at the end of the interview that they would use MWO Aldrich as a referee and that the complainant did not raise any concerns. The complainant did not refute those statements.
[44]
As indicated above, the evidence on whether the complainant asked the assessment board members not to use MWO Aldrich as a referee is contradictory. The Tribunal finds that it is more probable than not that the complainant did not make such a request. This conclusion is supported by the fact that she did not raise any concerns at the interview when she was informed that the assessment board would use MWO Aldrich as a referee.
[45]
Even if the complainant had asked Ms. Williams not to use MWO Aldrich as a reference, the Tribunal would not have concluded that the assessment board members acted improperly in choosing her. MWO Aldrich was a logical choice for a referee for the complainant since she was her manager and had supervised her for several years. She was in a position to provide the most current and accurate reference. A mere request by the complainant not to use MWO Aldrich is not sufficient to impose an obligation on the assessment board members not to use her. In this case, the assessment board members had no reason to believe that MWO Aldrich would not give them a reference that would correctly reflect her work performance. The fact that there were tensions between the complainant and her supervisor because of previous grievances and requests the complainant presented to management regarding her ATV did not preclude the assessment board from using MWO Aldrich as a referee.
[46]
The complainant pointed out that the Joint Statement of Facts states that during the grievance hearing regarding harassment, the complainant “... specifically named MWO Aldrich.” There was no evidence, however, that MWO Aldrich was the person against whom the claim of harassment was made. Since the complainant did not explain what was meant by the term “specifically named” in the Joint Statement of Facts and did not provide further details on that grievance, the Tribunal cannot draw any conclusion from this vague statement.
[47]
On December 22, 2011, MWO Aldrich sent the complainant an email in which she stated that there was an increased amount of strain during their recent interactions and proposed to resolve the situation through alternate dispute resolution. The complainant refused the offer on January 4, 2012.
[48]
While the above email does suggest there was some tension in the relationship between the complainant and MWO Aldrich, this does not necessarily mean that she had a bias against the complainant. There is insufficient evidence on the nature of that tension to conclude that it rendered MWO Aldrich biased against the complainant.
[49]
As the Tribunal held in Pellicore v. President of the Canada Border Services Agency, 2010 PSST 23 at para. 49, a referee’s alleged bias will not necessarily demonstrate that an assessment board abused its authority. References do not exercise any decision-making authority in the affairs of an assessment board and are therefore not expected to act without any bias, as is required of decision-makers. This not to say, however, that an assessment board should ignore any evidence that may call into question the reliability of the information provided by a referee. In this case, the complainant did not establish that the assessment board members had any reason to doubt the reliability of MWO Aldrich’s reference.
[50]
The complainant argues MWO Aldrich’s reference was unreliable because it provided the assessment board with comments that are contradictory and inaccurate. In most cases, MWO Aldrich starts by praising the complainant, but the positive comment is immediately downplayed by a negative one. For example, the first question asked the referee to describe the candidate’s general disposition and attitude in the workplace. MWO Aldrich states initially that the complainant displays self-confidence, enthusiasm and charisma. But she then goes on to say that she “can be emotionally reactive to situations which have been perceived as argumentative and uncooperative when maintaining enduring workplace relationships with others.”
[51]
LCol Ross testified that she reviewed the reference provided by MWO Aldrich and concluded that it presented a balanced view of the complainant’s work performance because it contained both positive and negative comments. She therefore had no concerns with that reference.
[52]
Ms. Williams also testified that she had no concerns with MWO Aldrich’s reference. MWO Aldrich gave sufficient details, examples and descriptions of the complainant’s effective interpersonal relationships skills. MWO Aldrich balanced the complainant’s strengths and weaknesses. According to Ms. Williams, MWO Aldrich’s reference was objective and factual.
[53]
The Tribunal has carefully reviewed MWO Aldrich’s reference and finds that the complainant has not established that it was unreliable. There are many positive comments accompanied by several negative ones. For example, MWO Aldrich praises the complainant by stating that she exercises considerable influence on many co‑workers who ask for her advice on different issues. But she also underlines some negative aspects of the complainant’s behaviour at work by stating that she can become emotionally charged and her comments can be perceived as vexatious and authoritative. The complainant has not established that MWO Aldrich’s comments were untrue or appeared unreliable, such that they should not have been taken into account.
[54]
In summary, therefore, the complainant did not establish that there is a reasonable apprehension of bias against her in relation to her assessment.
Issue III: Did the respondent discriminate against the complainant?
[55]
The complainant alleges that the respondent discriminated against her because of her disability by pressuring her to participate in the SERLO process while she was on medical leave. According to the complainant, the respondent should have waited until she was able to return to work.
[56]
According to s. 65(7) of the PSEA, in order to determine whether a complaint is founded under s. 65, the Tribunal can interpret and apply the CHRA.
[57]
Section 7 of the CHRA stipulates that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual or, in the course of employment, to differentiate adversely in relation to an employee, if it is based on a prohibited ground of discrimination. Section 3 of the CHRA lists the prohibited grounds of discrimination, which include disability.
[58]
In human rights cases, the complainant must first establish a prima facie case of discrimination. In Ontario Human Rights Commission v. Simpson‑Sears, [1985] 2 S.C.R. 536 (also known as the O’Malley decision), the Supreme Court of Canada described the test for establishing a prima facie case of discrimination:
28 ... The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent‑employer....
[59]
The Tribunal must therefore determine whether, if believed, the complainant’s evidence is complete and sufficient to justify a finding of discrimination, in the absence of an explanation from the respondent. If the complainant succeeds in establishing a prima facie case of discrimination, it is then up to the respondent to provide a reasonable explanation demonstrating that the prima facie discriminatory conduct did not occur as alleged or that the conduct was in fact not discriminatory. See Grant v. Manitoba Telecom Services Inc., 2012 CHRT 10, at para. 49.
Did the complainant establish a prima facie case of discrimination?
[60]
The SERLO process started in late January 2013 and ended in early February of the same year. The complainant testified that she was on medical leave throughout the SERLO process.
[61]
The complainant explained that since 2002, she has suffered pain in her neck, which affects her right arm and hand. She cannot reach high or perform repetitive tasks for a long period of time. She filed a claim with the Alberta Workers Compensation Board (WCB) relating to this disability. A WCB report signed by a physician on January 10, 2005, described her condition as chronic. Her physician wrote on October 22, 2012, that she could not return to her clerical job due to medical reasons.
[62]
The complainant was also involved in two car accidents in 2012, which were not related to her work.
[63]
The complainant testified that the WCB sent her a letter at the time of the SERLO process stating that she should not use a keyboard. She entered into evidence a report from the Millard Heath Centre confirming that she should avoid all keyboard tasks until the VRT is implemented. The report is unsigned and undated so it is not clear whether it is a draft or a final report. The complainant did not have access to VRT during her medical leave.
[64]
The complainant testified that she asked Ms. Williams whether her assessment under the SERLO process, which involved entering information through a keyboard, could wait until she came back to work at the end of her medical leave, when she would have access to her VRT. Her request was denied. According to the complainant, she was compelled to participate in the SERLO process because MWO Aldrich and Paula Seale, an HR officer, told her that she had no other choice. She alleges that having to participate in spite of her physical disability had an impact on her performance during the assessment.
[65]
The Tribunal is satisfied that the complainant has established a prima facie case of discrimination. She has led evidence, which if believed, establishes that she had a chronic disability during the SERLO process that prevented her from using a keyboard. Her assessment involved the entry of information through a keyboard, and as a result of her disability, her performance may have been affected.
Reasonable non‑discriminatory explanation
[66]
In answer to the prima facie case, the respondent provided a reasonable non‑discriminatory explanation for selecting the complainant for lay-off.
[67]
The evidence on whether the complainant was pressured into participating in the SERLO process is contradictory. Although the complainant testified that she asked Ms. Williams whether the SERLO process could wait until her return to work, Ms. Williams testified that she did not recall the complainant telling her that she did not want to participate in the SERLO process.
[68]
The written documentation tendered into evidence indicates a willingness on the part of the complainant to participate in the SERLO process, without any hesitation or concerns. In an email message that the complainant sent to MWO Aldrich on December 6, 2012, the complainant stated that she “[...] would like to participate in the assessment for the CR-04 position as outlined in the SERLO package [. . .]”. In another email she sent to MWO Aldrich and Ms. Seale on January 14, 2013, the complainant stated that she intended taking part in that “competition”.
[69]
The Tribunal finds that the evidence does not establish that the complainant made it known clearly that she wanted the respondent to wait until she returned to work to conduct the SERLO. Her statements in her emails indicate that she willingly participated in the process. Whether or not she was pressured into participating in the SERLO, however, is not determinative of this complaint, since, as indicated further in these Reasons, the evidence indicates that the decision to select the complainant for lay-off was not affected by her disability.
[70]
There are also some contradictions in the evidence with respect to the restrictions arising from the complainant’s disability. A letter of September 21, 2005, from a case manager of the WCB indicated that the WCB had analysed her medical condition and concluded that she could perform the duties of her position if she complied with certain restrictions, including not working more than four hours a day and typing less than ten minutes out of every hour worked. These work hours could be increased if her employer put in place a VRT.
[71]
Irrespective of the extent of her limitations in the use of a keyboard, the evidence indicates that the decision to select the complainant for lay-off was not based on any assessment that would have been affected by her disability. The only part to the assessment process that required keyboarding was writing a cover letter and a résumé. Ms. Williams testified that she had consulted subject matter experts and the human resources section regarding a proper accommodation for the complainant. In a letter dated January 23, 2013, Ms. Williams informed the complainant that the respondent would accommodate her by extending the time to perform those tasks. She was given 11 calendar days to prepare those documents.
[72]
Ms. Williams testified that she recalled discussions with the complainant on February 1, 2013, about possible accommodations regarding the preparation of the résumé and cover letter. She summarised that conversation the same day in a note to file. The note indicates that Ms. Williams told the complainant that she would be given ample time to write the cover letter and résumé. Another form of accommodation that was discussed was writing those documents at the Dental Clinic, but the complainant stated that the VRT was not operational because the system had not been up-dated. They discussed other options such as having an employee from the Dental Clinic or a person of the complainant’s choosing from outside the organization provide her with assistance in preparing those two documents. The complainant declined the accommodation offers, other than having more time to produce the documents. She did not request or indicate any further need for accommodation.
[73]
The complainant testified that her daughter typed the résumé for her. The complainant met the deadline that had been set for her. Thus, the complainant was able to provide the information that required the use of a keyboard.
[74]
In any event, any accommodation issues regarding the use of a keyboard could not have had any impact on the respondent’s decision to select her for lay-off. The complainant was chosen because Ms. Skinner fared better than her in the assessment of effective interpersonal relationships. The cover letter and résumé were not used to assess that qualification.
[75]
The effective interpersonal relationships qualification was assessed through the interview and reference checks. The interview did not involve any keyboarding or other aspects of the complainant’s disability that could affect her performance. The interview consisted of oral questions put to her by the assessment board members and the complainant replied orally. Her disability therefore played no role in the assessment of effective interpersonal relationships.
[76]
The complainant contends that MWO Aldrich’s negative comments in her reference, such as the complainant being argumentative, could be due to the fact that she had complained several times about her VRT, mainly regarding the need to update it.
[77]
There is no evidence, however, that MWO Aldrich was disturbed or annoyed by the complainant’s requests or complaints regarding her VRT, nor any other evidence that would in any way support the complainant’s assertion.
[78]
The complainant also alleges that the respondent used the SERLO process in bad faith as a pretext to terminate her employment for disciplinary and performance issues. According to the complainant, she was selected for lay-off in reprisal for previous grievances, complaints, accommodation requests, workers’ compensation claims and human rights claims she had presented.
[79]
Aside from her simple assertion of bad faith, however, she did not present any evidence that would indicate that the respondent chose her for lay-off because of performance issues or to discipline her for presenting grievances, complaints, or requests. The Tribunal finds that the complainant’s allegation is unfounded.
[80]
The respondent has therefore provided a reasonable explanation in answer to the prima facie case of discrimination. The evidence establishes that the complainant was selected for lay-off because Ms. Skinner scored higher in the assessment of effective interpersonal relationships, the qualification that the respondent had identified as the determining factor for identifying which employee would be laid-off. The complainant’s physical disability had no impact on the assessment of that qualification because it was assessed through an interview consisting of oral questions and answers, as well as reference checks in which the complainant did not participate.
Issue IV: Were there any other irregularities in the SERLO process?
[81]
The complainant alleges that there were other irregularities in the SERLO process. She contends that the respondent did not establish that Ms. Skinner met all the qualifications of the position, that the assessment methods used to assess effective interpersonal relationships were not adequate, and that it was improper to use that qualification to decide whom to lay-off.
Did Ms. Skinner meet all the qualifications established for the position?
[82]
The complainant alleges that the respondent did not establish that Ms. Skinner was qualified for the position because it did not assess all the qualifications listed in the SMC. She believes that the respondent relied upon the assessment of Ms. Skinner’s “reliability” dating back to when she was first appointed, rather than assess her “dependability.”
[83]
Ms. Williams testified that the SMC used in the SERLO process was an updated version of an SMC established in 2007 for an external advertised appointment process for the DCP Clerk position. The personal suitability qualification “reliability” was used in the external appointment process, but it was changed to “dependability” in the SERLO process.
[84]
The complainant referred the Tribunal to s. 5 of the PSC’s Guide on the Selection of Employees for Retention and Lay-off. According to the complainant, this provision implies that if the assessment of a qualification used for the initial appointment of the person to the position has changed over time (in this instance, from reliability to dependability), the candidate should be reassessed with respect to that qualification. Section 5 of that guide reads as follows:
5. Process to select employees for retention or lay-off
The assessment and selection of employees for retention or lay-off (SERLO) process is different from an appointment process as all the employees involved in the selection already met the merit criteria for their substantive position, if the qualifications have not changed. At the time of their appointment, the employees were fully assessed against all the requirements of their position. The goal of the SERLO process is to differentiate between, the employees to be retained and, the employees to be selected for lay-off, all of whom had previously been found qualified.
[85]
The complainant did not produce any evidence to support her contention that the respondent did not assess her “dependability”. The respondent’s Selection for Retention and Lay-Off Assessment Guide presented in evidence lists all the qualifications to be assessed and how they will be assessed. Ms. Williams explained how each qualification was assessed, and the Selection for Retention and Lay Off Report indicates that Ms. Skinner was assigned a score for each qualification during the SERLO process, including dependability. Dependability was assessed through reference checks.
[86]
Moreover, it is not clear whether it made a difference if the respondent used the assessment of her “reliability” carried-out in Ms. Skinner’s initial appointment, or whether it did a new assessment of “dependability” during the SERLO process. There is no significant difference between the terms “dependability” and “reliability”. The Canadian Oxford Dictionary defines “dependable” as “reliable”.
[87]
The Tribunal finds that the complainant has failed to establish that Ms. Skinner lacked one of the qualifications set out in the SMC.
Were the assessment methods used to assess effective interpersonal relationships adequate?
[88]
The complainant contends that the assessment methods used to assess effective interpersonal relationships were not adequate. More specifically, she argues that the definition of that qualification was unclear and that the rating scale was vague.
[89]
The respondent defined that qualification in the SMC as follows:
Defined as the ability to establish and maintain good and productive working relations with superiors, peers, support staff clients and outside agencies as required while consistently maintaining a pleasant and positive attitude, enthusiasm and co‑operativeness (sic).
[90]
Even though it is not obvious that “effective interpersonal relationships” needs defining (those words speak for themselves), the Tribunal finds that the above definition is adequate since it specifies what “effective” means and with whom good interpersonal relationships are important.
[91]
The Tribunal does not agree with the complainant’s proposition that the rating scale was vague. There were three scales: “Met Standard”, “Above Standard” and “Exceeds Standard”. For each scale, the respondent created a definition. For example, “Exceeds Standard” is defined as follows:
Experience/capacity is exceptional and demonstrates great breadth and depth. Experience/capacity reflects an extreme ability to perform effectively in this aspect of the role. Experience/capacity is complete and includes all of the key positive criteria. No weaknesses demonstrated.
[92]
This and the other definitions are not vague and were sufficient to enable the assessment board members to rate the performance of the two employees involved in the SERLO process.
Was it improper to use effective interpersonal relationships to decide whom to lay-off?
[93]
The complainant alleges that the respondent should not have used that qualification to decide whom to retain or lay off, given the complainant’s history in the workplace. The complainant did not elaborate more on this allegation.
[94]
The Tribunal finds that there is no basis to support the complainant’s proposition. The respondent has a broad discretion in establishing qualifications for a SERLO process as long they reflect the work of the position. LCol Ross testified about the importance of this qualification. She stated that because the person occupying the position must interact with numerous people within and outside the organization, including patients, staff and dental practitioners. The respondent did not need to set aside that important qualification simply because, according to the complainant, there were problems in the workplace in terms of interpersonal relationships between the complainant and management.
Decision
[95]
For these reasons, the complaint is dismissed.
John Mooney
Vice-Chairperson
Parties of Record