Date: 20210916
File: EMP-2017-10981
Citation: 2021 FPSLREB 109
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Between
ROBERT FOSTER
Complainant
and
DEPUTY MINISTER OF EMPLOYMENT AND SOCIAL DEVELOPMENT
Indexed as
Foster v. Deputy Minister of Employment and Social Development
Before: Joanne B. Archibald, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Himself
For the Respondent: Peter Doherty, counsel
For the Public Service Commission: Alain Jutras, senor analyst
August 5, 2021.
REASONS FOR DECISION
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I.
Introduction
[1]
The complainant, Robert Foster, made a complaint under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”), alleging abuse of authority by the respondent, the Deputy Minister of Employment and Social Development Canada (“the respondent”) in the selection of Milan Aryal (“the appointee”) for a citizen services specialist (CSS) position (“the CSS position”), classified PM-02, in Brampton, Ontario.
[2]
The respondent denied abusing its authority in the appointment process.
[3]
The Public Service Commission (“PSC”) did not attend the hearing, but it provided written submissions addressing its applicable policies and guidelines. It did not take a position on the merits of the complaint.
[4]
The complainant raised issues of discrimination during the hearing but agreed that he did not notify the Canadian Human Rights Commission, as required by s. 78 of the PSEA whenever a complaint raises an issue involving the interpretation or application of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “CHRA”).
[5]
For the following reasons, the complaint is dismissed. The complainant did not demonstrate on the balance of probabilities that the respondent abused its authority in the appointment process.
II.
Background
[6]
The complainant and the appointee both applied and qualified in appointment process 2016-CSD-IA-ONT-17515 for the CSS position.
[7]
On December 5, 2016, Susan Amatangelo, the chairperson of the appointment process and the hiring manager for the CSS position, requested a referral from the pool of qualified candidates based on identified essential merit and asset criteria, as well as organizational needs.
[8]
These were the criteria:
· the highest overall marks on 3 essential merit criteria: oral communication, presentation skills training, and interpersonal awareness;
· the education asset criterion;
· 10 experience asset criteria, all defined as recent (within the past 24 months) and significant (a minimum of 12 months); and
· an organizational need for a visible-minority candidate.
[9]
On February 2, 2017, a “Notice of Appointment or Proposal of Appointment” was issued for the appointee. The complainant made his complaint of abuse of authority on February 17, 2017.
III.
Summary of the evidence
[10]
The complainant’s position was that he was qualified for the appointment and that the selection of the appointee discriminated against other candidates as it was based on the appointee’s self-identification as a visible minority.
[11]
In the complainant’s view, it was absurd to think that he was not qualified. He testified that he presented excellent qualifications for the CSS position. He is fully bilingual. He has three university degrees and strong knowledge of government.
[12]
The complainant argued that he ought to have been qualified for all the asset criteria. He believed that his rejection for the CSS position was based on an inaccurate and incomplete assessment of the asset qualifications.
[13]
The complainant elaborated on his qualifications. He questioned how he could have received full marks for presentation skills yet not qualify for the asset criterion of planning and organizing presentations. He argued that he was certified in social insurance number rapid access (SINRA) and that he ought to have been found qualified. He added that he was once a compensation advisor and that he had the required knowledge of Old Age Security (OAS) and Canada Pension Plan (CPP) programs. He had two years of intermediate and advanced knowledge of employment insurance (EI).
[14]
The complainant self-identified as Caucasian. He argued that the respondent’s organizational need for a candidate who self-identified as a member of a visible minority showed a predisposition toward visible minority candidates that could not pass the test of merit.
[15]
Ms. Amatangelo testified that the CSS position is the face of the federal government in the community. CSS’s negotiate relationships with community organizations serving target groups such as seniors, persons with disabilities, or newcomers to Canada. The goal is to provide education about federal government programs, including social insurance numbers, OAS, CPP, EI, and training. This work serves to substantially reduce office visits and inquiries from the public.
[16]
When Ms. Amatangelo prepared the request for a candidate to be referred from the qualified pool for the CSS position, she selected essential and asset qualifications from the “Statement of Merit Criteria” and one organizational need.
[17]
In the referral request, Ms. Amatangelo provided the following rationale for the use of essential and asset merit criteria:
...
The merit criteria identified for my selection contribute to the current workforce needs as it [sic] allows me to have a candidate with strong oral communication skills and presentation skills able to conduct presentations and carry out the requirements of a Citizen Services Specialist and would have the experience required to undertake the same duties.
...
[18]
Ms. Amatangelo testified that for the appointment process for the CSS position, the essential merit criteria were assessed based on the results of the assessment process. The asset criteria and the organizational need were assessed from the information on the candidates’ applications.
[19]
Ms. Amatangelo stated that she sought a candidate who was ready to perform the duties of the CSS position and who did not require training. Because of Brampton’s diversity, she wanted a candidate who self-identified as a visible minority as she considered that they would be relatable and reflective of the community to be served.
[20]
Ms. Amatangelo testified that the complainant was found not to meet six of the asset experience criteria and that he did not meet the organizational need as he did not self-identify as a visible minority.
[21]
The complainant disagreed with the assessment of his candidacy. He did not dispute that the appointee met the essential and asset merit criteria, as well as the organizational need.
[22]
Although the complainant did not meet the asset criterion of planning, organizing, and delivering presentations, he testified that as a municipal councillor, hospital board member, and Rotary Club president, he had been heavily involved with the community and making presentations.
[23]
Ms. Amatangelo responded that the complainant’s application spoke of this ability to make presentations but that it was missing any mention of the aspects of planning and organizing them. Accordingly, he failed to meet the requirements of this qualification.
[24]
The complainant did not meet three related asset criteria addressing recent and significant experience receiving OAS and CPP applications, delivering CPP programs, and delivering OAS programs.
[25]
The complainant submitted that he was an experienced compensation advisor with extensive knowledge of OAS and CPP.
[26]
Ms. Amatangelo responded that the complainant’s application spoke of his knowledge of CPP and OAS but did not state that he had received applications or delivered either program. Additionally, his application did not provide a time frame for any experience related to CPP or OAS and it could not be determined whether his experience was recent or significant.
[27]
The complainant did not meet the asset merit criterion of recent and significant experience delivering EI programs. His application referred to work he performed from July 2009 through January 2010.
[28]
Ms. Amatangelo stated that the complainant’s experience occurred too far in the past to meet the definitions of recent and significant experience.
[29]
A further asset qualification was recent and significant experience providing SINRA services. The complainant’s application of June 10, 2016, stated that he was scheduled to start providing SINRA services shortly.
[30]
The complainant agreed that his covering letter referred to a SINRA work assignment that had not begun, but he was certain that he had spoken of the experience he was acquiring when he later attended his interview.
[31]
According to Ms. Amatangelo, the complainant’s reference to SINRA in his application addressed an expectation for the future. He had not accumulated recent or significant experience as of his application and could not have achieved it in the six months between his application in June 2016 and his interview in December 2016.
[32]
The complainant concluded by arguing that the assessment was highly subjective and questionable. The inclusion of the organizational need to self-identify as a visible minority was racist.
[33]
The respondent argued that the complainant failed to qualify as his experience either did not address the required experience or failed to meet the definition of recent and significant for those qualifications for six of the asset qualifications. In addition, he did not meet the organizational need that was assessed by self-identifying as a visible minority.
IV.
Analysis
[34]
The PSEA defines “merit” in s. 30. According to s. 30(2), merit includes essential qualifications, official language proficiency, asset qualifications, organizational needs, and operational requirements.
[35]
These were the complainant’s written allegations:
1) Abuse of authority by the respondent by favouring the appointee or not establishing a fair and transparent appointment process in accordance with the PSEA.
2) Abuse of authority by overlooking employees in the area of selection who met the merit criteria and were not provided with an opportunity for the appointment.
[36]
I note first that the complainant provided no evidence of personal favouritism such as an undue personal interest or personal relationship that influenced the selection of the appointee for appointment. (See Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7.)
[37]
As a result, I find that the complainant did not meet the evidentiary burden of the balance of probabilities to show personal favouritism. This aspect of the complaint is dismissed.
[38]
It was alleged that the process was not fair or transparent and that candidates were overlooked. I note that the posting for the CSS position included the essential and asset merit criteria. It explained that the essential merit criteria would be assessed and that the asset merit criteria might later be applied.. The complainant did not state how the appointment process was not fair or transparent.
[39]
The posting also contained the following passage:
...
... It is your responsibility as a candidate to submit a cover letter, which clearly outlines how you meet each of the screening qualifications (i.e. Education and Experience Qualifications, both Essential and Assets) as well as a CV which is linked to the information in your cover letter. Please note that it is not sufficient to only state that you meet the qualifications or to provide a listing of current or past responsibilities. Rather you must provide concrete examples, which illustrate how you meet each qualification.
...
[40]
I find that this was a fair and transparent explanation of the appointment process. In the absence of any evidence to the contrary, I find it conforms to the with any requirements of the PSEA.
[41]
As to the allegation that qualified candidates in the area of selection were overlooked, I note that this appointment process was open to employees in the following area of selection:
...
Employees of Employment and Social Development Canada including the Service Canada Initiative, occupying a position in the Greater Toronto Area, which for the purposes of this process is bordered by Newmarket in the north, Burlington in the west, Oshawa in the east and Lake Ontario in the south.
...
[42]
Only the complainant’s candidacy was placed before me as an example of a qualified candidate who was overlooked. As discussed later in this decision, a review of his application and the testimony of witnesses demonstrates a reasoned basis for the conclusion that he did not meet six of the experience asset qualifications or the organizational need identified for this appointment.
[43]
Neither the complainant’s testimony nor his application contained persuasive evidence that he met any of the disputed asset criteria. As Ms. Amatangelo testified, he provided no information showing that he had delivered or organized presentations. There was no evidence of receiving OAS or CPP applications or of delivering OAS or CPP programs. His EI experience with employment insurance did not fall within the preceding two year period and therefore did not meet the definition of recent experience.
[44]
The complainant’s experience with SINRA had not started at the time of his application. Even at the time of his interview, he had acquired no more than six months of SINRA experience, and it would have been insufficient to satisfy the definitions of recent and significant.
[45]
The complainant strongly asserted his disagreement with the assessment of his qualifications. However, as the former Public Service Staffing Tribunal stated in Portree v. the Deputy Head of Service Canada, 2006 PSST 14 at para. 56, “Simply disagreeing with the final result does not constitute evidence of wrongdoing on the part of the assessment board.”
[46]
It is not the role of the Federal Public Sector Labour Relations and Employment Board (“the Board”) to reassess candidates. It is mandated to determine whether, on the balance of probabilities, an abuse of authority occurred. (See Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 20 at para. 54.)
[47]
The complainant bore the burden of proving that an abuse of authority occurred, which he did not discharge. (See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 50.) The evidence satisfied me that he did not have the required experience and that the respondent could not properly have considered him to meet the six asset qualifications that he disputed.
[48]
The complainant was also concerned with the operational need and the requirement for self-identification as a member of a visible minority. It is undisputed that he did not self-identify as a visible minority and that he did not meet the stated organizational need. He self-identifies as Caucasian, and he considered it discriminatory and contrary to the PSC’s Appointment Policy to limit the consideration for this appointment to visible minority candidates.
[49]
Ms. Amatangelo explained the organizational need for a candidate who was relatable and reflective of the community to be served through the CSS position. This was identified as a right fit criterion, and a visible minority candidate was sought.
[50]
I note that self-identification was expressly addressed on the job posting, on which candidates were encouraged to indicate their membership in an employment-equity group.
[51]
As for the PSC’s Appointment Policy, although it does not bind the Board, one of the express expected results of it is a “... non-partisan and representative workforce of individuals drawn from across the country, benefitting from the diversity, linguistic duality and range of backgrounds and skills of Canadians ...”. In my view, the expression of this objective conflicts with the complainant’s perception of the PSC’s Appointment Policy and merit.
[52]
I find that the respondent satisfactorily explained the reason for using an employment-equity criterion to address an organizational need. This is not a new or novel approach. (See, for example, Brown v. Commissioner of Correctional Service of Canada, 2011 PSST 15 at para. 71.) Given the respondent’s rationale, the use of this organizational need fell within the “... considerable discretion [that] is given to choose amongst the applicants who meet the essential qualifications, the person that in the manager’s judgment is the right fit for the job” [emphasis in the original]. (See Visca v. Deputy Minister of Justice, 2007 PSST 24 at para. 44.)
[53]
Accordingly, I see no basis for the Board to intervene in the respondent’s decision to apply this organizational need to selecting a candidate for appointment.
[54]
Even had the allegation of human rights discrimination been properly brought before the Board in accordance with s. 78 of the PSEA, my decision would not change. My analysis follows.
[55]
To show that the respondent has committed a discriminatory act, the complainant must show prima facie (meaning at first view) evidence of discrimination, or evidence that “... 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” (from Ontario Human Rights Commission. v. Simpsons-Sears, [1985] 2 S.C.R. 536).
[56]
The evidence must demonstrate that (1) the complainant possesses a characteristic protected against discrimination, (2) that the complainant suffered an adverse employment-related impact, and (3) that the protected characteristic was a factor in the adverse impact. (See Moore v. British Columbia (Education), 2012 SCC 61.)
[57]
Firstly, the complainant’s self-identified race is Caucasian, and race is a characteristic protected from discrimination, according to s. 3 of the CHRA.
[58]
Secondly, the evidence shows that the complainant suffered an adverse employment-related event when he was not chosen for appointment to the CSS position.
[59]
The third question is whether the protected characteristic was a factor in the adverse impact. The evidence disclosed a comprehensive explanation showing that he was ineligible for the appointment as he failed to meet six of the asset qualifications, based on the facts he presented in his application.
[60]
As such, the evidence showed that the complainant was not qualified. It did not show that he was equally or more qualified than the appointee. Human rights discrimination was not demonstrated, on a balance of probabilities.
[61]
Lastly, I note that the complainant referred anecdotally to discrimination on the basis of gender. He suggested that women had received other appointments from the qualified pool. He presented a list of names without any substantiation that appointments had taken place. It was not clear how this was relevant to the matter before me. Even if it were, I did not find that the evidence had the weight or reliability to allow me to consider it further. Therefore, these reasons are confined to the appointment that is the subject of the complaint.
[62]
On the basis of the evidence presented, I find that the complainant did not persuade me on the balance of probabilities of an abuse of authority in the application of merit in the appointment at issue within the meaning of s. 77(1)(a) of the PSEA.
[63]
For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V.
Order
[64]
The complaint is dismissed.
September 16, 2021.
Joanne B. Archibald,
a panel of the Federal Public Sector Labour Relations and Employment Board