Date: 20211014

Files: EMP-2017-10924, 10933, and 10934

 

Citation: 2021 FPSLREB 112

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

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

Between

 

Mario McLean

Complainant

 

and

 

deputy head

(Department of Employment and Social Development)

 

Respondent

Indexed as

McLean v. Deputy Head (Department of Employment and Social Development)

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

Before: Bryan R. Gray, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Himself

For the Respondent: April Conn, paralegal

Decided on the basis of written submissions,
filed between July 7 and September 28, 2021.

REASONS FOR DECISION

I. Complaints before the Board

[1] This decision deals with the failure of a complainant to prosecute his complaints before the Federal Public Sector Labour Relations and Employment Board (“the Board”) and their resulting dismissals.

[2] Mario McLean (“the complainant”) made three complaints alleging abuse of authority arising from events dating as far back as June 22, 2015 (see the complaint in file no. EMP-2017-10924, made on January 18, 2017). In all three complaints, he alleged that repeated renewals of three different acting appointments without notice were an abuse of authority in the application of merit. The complaints were ordered joined and scheduled for a videoconference hearing on August 31 and September 1, 2021.

[3] The complainant was sent written notice of his hearing on June 16, 2021. Upon being contacted in writing by the Board’s Registry to request his participation in a case management meeting to be chaired by the Board Member assigned to the matter, to help the parties prepare for their hearing, the complainant replied in writing, stating that after waiting four years, the hearing was years too late. He added that he had left the public service and that he did not wish to attend his hearing but that the Board should “... continue the process without me if that’s at all possible...”.

[4] Upon repeating his intention to decline to participate in his hearing in writing a second time, the Board ordered the complaints heard by means of written submissions, as it is empowered to do by s. 22 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; FPSLREBA).

[5] Later, on August 6, 2021, the parties were advised that the complainant’s three complaints had been joined and that they would be heard by means of written submissions. A description of this process was provided, as well as a copy of the Board’s guide for self-represented parties.

[6] When the September 27, 2021, deadline passed for his written submissions to prove his allegations with no reply from the complainant, the Registry contacted him and advised him as follows:

...

As noted in correspondence on August 6, 2021, your written submissions in support of your complaints 2017-10924, 2017-10933 and 2017-10934 were due yesterday.

You must contact the Board immediately if something has arisen which you believe has caused you to miss this deadline.

If the Board does not receive communication from you by 4.00pm ET this Friday, October 1, 2021 your files will be closed and there will be no hearing of your complaints.

...

[Emphasis in the original]

 

[7] The complainant replied promptly. He again stated his displeasure with the Board’s process and informed it that it should investigate his concerns itself rather than making him present evidence and prove his allegations.

[8] A complainant who has alleged an abuse of authority in an appointment process under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13) carries the burden of proof and leads the hearing by presenting his or her testimony and any other relevant evidence to prove his or her allegations. It is not enough for a complainant to merely present allegations unsupported by evidence. (See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8; and Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 20.)

[9] The former Public Service Staffing Tribunal concluded as follows in Schmid v. the Commissioner of Correctional Service of Canada, 2012 PSST 30 at para. 13:

13 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal determined that it is the complainant who bears the burden of proof in hearings before the Tribunal (see paras. 49, 50 and 55). For a complainant to meet this burden, he must present sufficient evidence for the Tribunal to determine, on a balance of probabilities, whether a finding of abuse of authority is warranted.

[Emphasis added]

 

[10] Having directed that the complaints be joined, I directed that the matters would be determined by means of written submissions as allowed as follows by s. 22 of the FPSLREBA:

Determination without oral hearing

22 The Board may decide any matter before it without holding an oral hearing.

 

[11] Given the complainant’s repeated refusals to engage in the Board’s hearing process after receiving several written communications from the Board about it, and given the fact that his responses confirm his receipt and understanding of the Board’s communications, I am satisfied that he received notice of the hearing, which was to proceed by written submissions.

[12] The complainant failed to provide his written submissions, even though he received and responded to all the previously noted correspondence from the Registry. He consistently stated his displeasure with the timing and format of the Board’s hearing process and stated that instead, the Board should conduct its own investigation and pass judgement upon his allegations.

[13] Under s. 29 of the Public Service Staffing Complaints Regulations (SOR/2006-6), if a party does not appear at the hearing of a complaint, and the Board is satisfied that notice of the hearing was sent to the party, the Board may proceed with the hearing and dispose of the complaint without further notice. Section 29 reads as follows:

Failure to appear

29 If a party, an intervenor or the Canadian Human Rights Commission, if it is a participant, does not appear at the hearing of a complaint or at any continuance of the hearing and the Board is satisfied that notice of the hearing was sent to that party, intervenor or participant, the Board may proceed with the hearing and dispose of the complaint without further notice.

 

[14] I am satisfied that notice of the hearing, which was to proceed by written submissions, was sent to and received by the complainant and that he then failed to appear at the hearing of his complaints by failing to present any submissions.

[15] As a result, he has not tendered any evidence in support of his complaints and allegations. Consequently, he has not met the burden of proving abuse of authority in the application of merit and choice of process at issue.

[16] This situation is similar to the case of Mugabarabona v. Commissioner of the Royal Canadian Mounted Police, 2018 FPSLREB 51, in which at paragraph 50, the Board found that “[t]he complainant clearly indicated a lack of interest to advance his files” and dismissed his complaints.

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

(The Order appears on the next page)

II. Order

[18] I order the complaints dismissed and the files closed.

October 14, 2021.

Bryan R. Gray,

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