Date: 20210916
File: EMP-2017-11306
Citation: 2021 FPSLREB 108
| Public Service Employment Act
|
|
Between
aLLISON pOFF
Complainant
and
dEPUTY MINISTER OF fOREIGN AFFAIRS
Indexed as
Poff v. Deputy Minister of Foreign Affairs
Before: Nathalie Daigle, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Paul Raven, representative
For the Respondent: Erik TarBush, articling student, and Jena Montgomery, counsel
For the Public Service Commission: Louise Bard, senior analyst
REASONS FOR DECISION
|
I.
Introduction
[1]
Allison Poff, (“the complainant”), made a complaint of abuse of authority concerning the appointment of 21 individuals to positions of FS-03 Foreign Service Officer with the Department of Foreign Affairs, Trade and Development Canada (DFATD) in 2015. She alleged that the respondent improperly screened her application out of the internal advertised appointment process.
[2]
The respondent replied that the complainant’s application was screened out because she failed to provide concrete examples demonstrating how she met an experience qualification.
[3]
The Public Service Commission (PSC) did not appear at the hearing. It presented a written submission in which it discussed its relevant policies and guidelines. It took no position on the merits of the complaint.
[4]
For the reasons that follow, the complaint is substantiated. The complainant established that the respondent abused its authority in its assessment of her application in this appointment process.
II.
Background
[5]
The parties provided me with an agreed statement of facts that reads as follows:
...
1. In December 2014, an advertised appointment process was launched to staff CO-03 and FS-03 Foreign Service Officers and Deputy Director positions under selection process number 14-EXT-IA-RD-1008083. The job poster listing the essential qualifications for these positions is found at Tab 1.
2. On December 19, 2014, the complainant applied for FS-03 positions through the 14-EXT-IA-RD-1008083 process. The complainant’s CV and cover letter are found at Tab 2.
3. The complainant’s application was assessed by Nathalie Dault. The complainant’s assessment is found at Tab 3.
4. The hiring committee designated Ellen Ruth Zeisler, Director of the Human Resources Task Force and Pool Program Manager, as the chair of the assessment committee. Ellen Ruth Zeisler conducted a final review of all applications that were screened out of the selection process.
5. On February 18, 2015, the complainant was informed by email that her application would not be given further consideration since she did not meet Essential Experience 3(b). The elimination letter is found at Tab 4.
6. On March 9, 2015, an informal discussion was held with the complainant and Nathalie Dault. Nathalie Dault informed the complainant that her application was screened out because she did not demonstrate the breadth and depth of experience required to meet Essential Experience 3(b).
7.On July 4, 2017, a Notification of Appointment or Proposal of Appointment (NAPA) was posted on jobs.gc.ca for the appointments of 36 individuals (“the appointees”) to FS-03 positions. The NAPA is found at Tab 5.
8. On July 6, 2017, the complainant filed a complaint to the Federal Public Sector Labour Relations and Employment Board (FPSLREB).
III.
Preliminary issue - confidentiality order
[6]
At the hearing, the respondent introduced into evidence an answer key for the experience criteria it evaluates when it fills FS-03 or CO-03 group-and-level positions. The respondent redacted the irrelevant parts of it, i.e., the suggested answers to the experience criteria met by the complainant. The document it presented to me contained only the suggested answer for experience 3b). In addition, it asked that the document be sealed. The complainant did not object to the document being sealed. However, she did object to it being redacted. However, I found that the suggested answers to the other experience criteria were not relevant and could be redacted. I did not need to see them.
[7]
The respondent explained that it uses this answer key in all processes when filling FS-03 group-and-level positions and that disclosing it would affect its validity or continued use.
[8]
In keeping with the open court principle, and following the Dagenais/Mentuck test (see Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835; and R. v. Mentuck, 2001 SCC 76), documents will be ordered sealed only if their disclosure would cause harm that would clearly outweigh the benefits of their full disclosure (see Pajic v. Statistical Survey Operations, 2012 PSLRB 70). The Supreme Court of Canada (SCC) restated the Dagenais/Mentuck test as follows in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41:
...
A confidentiality order ... should only be granted when:
(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.
...
[9]
I find that not sealing this exhibit could affect the validity or continued use of the answer key or distort the results of future staffing process by giving an unfair advantage to someone. The salutary effects of this order on the efficacy of the administration of justice also outweigh its deleterious effects on the right to free expression, including the public interest in open and accessible court proceedings. Additionally, not sealing it would be of no benefit to the merits of this decision.
[10]
Accordingly, I order Exhibit B sealed.
IV.
The issue
[11]
The Federal Public Sector Labour Relations and Employment Board (“the Board”) must answer the following question: Did the respondent abuse its authority when it screened the complainant out of the appointment process?
A.
The relevant facts
[12]
The complainant testified at the hearing on her own behalf. The respondent called to testify Ruth Zeisler, who in 2014 was the director, human resources renewal task force and pool program manager. The assessment board was composed of several individuals, including Ms. Zeisler, who was the delegated manager responsible for the process, and Nathalie Dault.
[13]
The complainant is the holder of an FS-02 group-and-level position. She works in one of five areas called “Foreign Policy Diplomacy”. She is currently acting as a manager and counsellor at the FS-03 level. She is an acting readiness program manager.
[14]
In 2014, she applied for the position that is the subject of this complaint. At that time, she had already worked for the respondent for six years.
[15]
The complainant explained that before submitting her application, she read the Job Opportunity Advertisement that specified the essential qualifications to be met and the FAQs for the selection process.
[16]
Experience 3b) read as follows:
b) SIGNIFICANT EXPERIENCE* LEADING a team, an initiative, or a project on substantive DFATD foreign policy, international trade, or international development issues that required horizontal and vertical engagement with DFATD colleagues, partners, and organizations, over the course of a minimum of three (3) assignment cycles**.
* Significant Experience will be evaluated against the following: coordination/advisory functions and level of autonomy.
** An assignment cycle is normally twelve (12) consecutive months.
[17]
The complainant brought to my attention Question 4 in the “Questions and Answers” document. Question 4 was relevant, given her concerns about how to demonstrate that she met the criteria. It read as follows:
Q4. Do I have to meet all essential and asset qualifications?
Applicants must demonstrate that they meet all essential education and experience qualifications to apply. If you have not had an opportunity to demonstrate supervisory experience, an alternative would be to demonstrate engagement within our department and/or with our partners and stakeholders on substantive DFATD issues as per the Statement of Merit Criteria. For example, as part of an intra- or inter-government working group, you could have led a team on a substantive DFATD foreign policy, international trade, or international development issue [sic], that required engagement with DFATD colleagues, and/or OGDs, and/or NGOs, and/or foreign governments, and/or clients and/or or contacts, etc. to provide a recommendation or a course of action to your manager. You would need to explain the length and depth of your experience(s) and as such, indicate mm-yyyy to mm-yyyy in your application per issue(s) and explain the extent of horizontal and vertical engagement both inside and outside of DFATD.
Asset qualifications may be used as a further screening mechanism, as such, asset criteria may be applied. Therefore, you should demonstrate how you meet the asset criteria. As an example, applicants who have proficiency in any of the foreign languages or have worked in a Central Agency as listed in the Statement of Merit Criteria should so describe this in their cover letter. Similarly, should you have experience working abroad as defined in the Statement of Merit Criteria, this should be described in your cover letter.
[Emphasis in the original]
[18]
After reading the answer to this question, she still had questions about how to demonstrate that she met the criteria, so on December 12, 2014, she sent an email to the generic process box. Her email contained the following:
I have a question on the format of the letter: do candidates have to list an overall “how” for how each qualification is met followed by an additional “how” that shows how the experience was obtained? In other words do we need an introductory sentence showing how we met the overall criteria followed by specific examples, or just the specific examples?
...
[19]
On December 17, 2014, the following response was sent to her:
...
We apologize for the delay in responding to you.
As stated in the advertisement, candidates must demonstrate each screening qualification as it relates to the candidate’s Education and Experience listed under Essential and Asset Qualifications. The “ability to follow instructions” and “ability to communicate effectively in writing” will also be assessed in the cover letter.
The following website gives you more information about how to apply : http://www.gcpedia.gc.ca/wiki/14-EXT-IA-RD-1008083_FAQ_EN
...
[20]
On December 12, after sending her first question, the complainant also sent the following question to the generic box:
Do we need to demonstrate in the cover letter how we meet the key leadership competencies (values and ethics, strategic thinking, engagement, management excellence)? Operational requirements? What is the character limit (including spaces) for the cover letter?
...
[21]
On December 17, 2014, the following response was sent to her:
...
We apologize for the delay in responding to you.
As stated in the advertisement, candidates must demonstrate each screening qualification as it relates to the candidate’s Education and Experience listed under Essential and Asset Qualifications. The “ability to follow instructions” and “ability to communicate effectively in writing” will also be assessed in the cover letter.
The character limit for the cover letter is 9600 characters with spaces.
...
[22]
On December 19, 2014, the complainant submitted her application.
[23]
The complainant’s answer to experience 3b) was the following:
ESSENTIAL EXPERIENCE THREE b)
I have significant experience leading a project on substantive DFATD foreign policy that required horizontal and vertical engagement with DFATD colleagues, partners, and organizations
HOW: In my assignment in START I led stabilization and reconstruction project development, implementation, monitoring and evaluation. In order to fully develop a project I was required to engage horizontally and vertically with other divisions at DFATD headquarters (legal, other programming divisions, geographic bureau, human rights), other government departments (RCMP, Public Safety, National Defence, Correctional Service Canada), implementing partners (Canadian Commercial Corporation, UN Mission in Haiti, UN Development Programme, International Organization for Migration) and other organizations (Government of Haiti, Haitian National Police, USA). This engagement led to a number of projects being approved an [sic] implemented in Haiti including the construction of a police vehicle maintenance garage ($7 million), a first aid training program for new officers ($1.3 million) and installation of training facilities ($1.9 million).
WHERE: START Programs Division (IRG) PERIOD: 08-2009 to 08-2011
HOW: In my posting to the Embassy of Canada to Haiti I led project implementation, monitoring and evaluation on stabilization and reconstruction and international security projects. In order to fully implement a project such as the construction of 2 large police stations ($6 million), the installation of a fingerprint database ($1 million) and the provision of 100 patrol vehicles ($4.9 million) I was required to undertake horizontal engagement with the START programs division at DFATD headquarters, other government departments on the ground in Haiti or undertaking assessment missions (RCMP, Public Safety, National Defence, Correctional Service Canada), implementing partners (Canadian Commercial Corporation, UN, International Organization for Migration) and other organizations (Government of Haiti, Haitian National Police, USA). I also undertook vertical engagement with START management at DFATD headquarters (Director General, Assistant Deputy Minister), other government departments (Directors, Director Generals and Assistant Deputy Ministers at Public Safety, RCMP, Correctional Service Canada, National Defence), implementing partners (Director of Canadian Commercial Corporation, Deputy Police Commissioner, Police Commissioner and Deputy Special Representative of the Secretary General of the UN Mission in Haiti, Country Directors of the United Nations Development Programme and United Nations Office for Special Projects, Country Director of the International Organization for Migration) and other organizations (Director General equivalent of the Government of Haiti, Prime Minister of Haiti, Chief of the Haitian National Police, and Director of the programming division and Deputy Head of Mission at the USA Embassy) to ensure successful monitoring and evaluation.
WHERE: Embassy of Canada to Haiti PERIOD: 08-2011 to 08-2013
HOW: In my current assignment with the Middle East Relations division I have led on several large projects on international security and engagement that involved both horizontal and vertical engagement. I was the lead in drafting the Canada-Jordan partnership strategy in response to a request from the Prime Minister. In order to successfully complete this I need to engage both horizontally and vertically (Director General level and higher) with other divisions at DFATD headquarters (development, trade, security programming) and other government departments (National Defence, Privy Council Office). I was also the lead officer on organizing the Prime Minister’s visit to the Middle East in January 2014. In order to achieve the expected results I undertook horizontal and vertical engagement with other divisions at DFATD headquarters (geographic, trade, development, security programming, protocol), DFATD missions abroad (in Jordan, Israel and the West Bank) and other government departments (RCMP, Public Safety, Natural Resources, Finance, Employment and Social Development, Privy Council) in order to put together the program for the Prime Minister and six accompanying Ministers and to have announceables for the visit. I was also the lead officer for the incoming visit of the Foreign Minister of the United Arab Emirates in July 2014. This visit included stops in three cities and the involvement of the Prime Minister, six federal Ministers and three provincial Premiers. In order to make this a successful visit I undertook horizontal and vertical engagement with other divisions at DFATD headquarters (geographic, trade, defence relations, development, security programming, protocol), regional trade offices (Calgary, Vancouver, Toronto, Waterloo), other government departments (National Defence, Natural Resources, Finance, CSIS, Privy Council Office, Citizenship and Immigration, Heritage) and the UAE Embassy in Ottawa to put together a program that met the expectations of the Minister’s office and to ensure announceables for the visit.
WHERE: Middle East Relations (EMA) PERIOD: 09-2013 to present.
[Emphasis in the original]
[24]
On February 18, 2015, the complainant was informed by email that her application would not be given further consideration since she did not meet experience 3(b).
[25]
The complainant explained that she was devastated when she became aware of the email. She explained that the chances of advancement in her path (Foreign Policy Diplomacy) are not very numerous. A first process was conducted in 2009, and the second in 2014.
[26]
According to the complainant, during a discussion with Ms. Dault in March 2015 after her application was rejected, Ms. Dault informed her that the respondent had been surprised by the large number of applications it received. Her application was rejected because she did not offer sufficient rationale to demonstrate that she met experience 3b) and because she did not include the problems she encountered and how she solved them. According to the complainant, Ms. Dault added, “That was what we chose to look at.”
[27]
Ms. Dault’s evaluation notes for experience 3b) were the following:
lead on projects but does not explain how engaged vertically & horizontally. Only provided a detailed list of who was consulted without specifying how. Does not explain or provide breadth or depth of engagements with partners. No details about how projects were developed or implemented.
[28]
The complainant explained that applicants had to use a maximum of 9600 characters to demonstrate that they met all the criteria. But, not knowing that she had to describe the problems she encountered while working on projects and how she solved them, she did not provide that information.
[29]
The complainant described the impact she suffered from being excluded from the process for this reason. She explained that still in 2021, it is difficult for her to find assignments at the FS-03 level because she is not an incumbent of a FS-03 position. Therefore, she is forced to accept more difficult assignments at that level in an acting capacity. As of the hearing, her assignment was in Saudi Arabia, which she explained is one of the few assignments that allow her to work on an acting basis in an FS-03-level position. Because she is not the incumbent of an FS-03 level position, she loses many regular opportunities for employment at that level.
[30]
Ms. Zeisler was the chair of the assessment committee. She explained that she has been involved in many staffing processes over the years. She also received all the necessary staffing training to do her job.
[31]
Ms. Zeisler explained that in December 2014, the advertised appointment process was launched to staff CO/FS-03 foreign service officer/deputy director positions. Her role was to ensure that the process respected the core values of fairness, transparency, access, and representativeness. With the assistance of Human Resources representatives, she developed the assessment tools used in the process. She also ensured that the process was conducted in accordance with legislation and PSC and departmental policies.
[32]
Ms. Zeisler was responsible for training the assessment board members. She emphasized that she ensured that they understood how the staffing process was to be conducted. To this end, she helped prepare guidelines for the evaluation committees and reviewed with the committees the best practices to adopt, for example to avoid any appearance of bias. In addition, she helped develop a document containing frequently asked questions (FAQs) and answers for the process. And a mechanism was in place that allowed directing questions from the evaluation committees to Ms. Zeisler.
[33]
Ms. Zeisler explained that the complainant applied to this process and was eliminated at the screening phase as she did not demonstrate that she met one essential experience qualification. For that reason, her candidacy was eliminated from further consideration.
[34]
Ms. Zeisler brought to my attention the language used in the Notice of Advertisement under “IMPORTANT NOTES”. It read as follows:
IMPORTANT NOTES:
...
... Experience factors listed in the ESSENTIAL AND ASSET qualifications.
Please note: It is not sufficient to state simply that the qualification is “met” or to provide a list of current or past responsibilities. The candidate must provide concrete examples in their COVER LETTER as to how they meet the ESSENTIAL and ASSET qualifications per group and level. Candidates MUST use the following format in their COVER LETTER: Use as headers each screening qualification as it relates to the candidate’s Education and Experience listed under Essential and Asset Qualifications. Under each of the headings, candidates are to then provide a description outlining HOW each qualification is met, including WHERE and HOW the experience was obtained, as well as the PERIOD(S) during which the functions were performed (MM-YYYY to MM-YYYY). Your COVER LETTER must adhere to the aforementioned stipulated format.
The COVER LETTER will be used to assess “your ability to follow instructions” and also “your ability to communicate effectively in writing.” The evaluation of these qualifications will lead to a mark of either “pass” or “fail” on these two essential qualifications. You MUST obtain a pass mark on both in this part of the assessment to advance in the process. FURTHERMORE, FAILURE TO DEMONSTRATE CLEARLY IN YOUR COVER LETTER HOW YOU MEET THE SCREENING CRITERIA (Education AND Experiences listed in the ESSENTIAL and ASSET Qualifications) AND the “ability to follow instructions” and “ability to communicate effectively in writing” WILL RESULT IN THE REJECTION OF YOUR APPLICATION.
Resumes MAY be used as a secondary source to validate the Education an Experience described in the COVER LETTER.
...
[35]
Ms. Zeisler explained that on July 4, 2017, a Notification of Appointment or Proposal of Appointment was posted on the federal government’s jobs website (jobs.gc.ca) for the appointments of 36 individuals to FS positions. On July 6, 2017, the complainant made her complaint to the Board.
[36]
Ms. Zeisler explained that all applicants had to demonstrate, using clear and concrete examples, how they met the experience criteria using the template provided. She showed me that in her application, the complainant stated this:
...
... I was required to engage horizontally and vertically with other divisions at DFATD headquarters ... [she then listed stakeholders with whom she engaged]. This engagement led to a number of projects being approved an [sic] implemented in Haiti including the construction of a police vehicle maintenance garage ($7 million), a first aid training program for new officers ($1.3 million) and installation of training facilities ($1.9 million).
WHERE: START Programs Division (IRG) PERIOD: 08-2009 to 08-2011
...
[37]
Ms. Zeisler explained that although the complainant provided an example of leading a project, she failed to demonstrate key points that detailed what the engagements involved. Ms. Zeisler explained that the mere fact that the project resulted in funding approval did not demonstrate how the complainant performed leadership on the project. Ms. Zeisler added that candidates had to explain who they engaged with, how they engaged horizontally and vertically or the engagement strategies, the challenges they faced, and the outcome.
[38]
She explained that doing this is like baking a cake. In addition to naming the ingredients, the steps to follow must be set out. The more details, the better the cake. Applicants were clearly instructed to provide, in addition to specifying the period during which the functions were performed, a description outlining “HOW” the qualification was met (leading an initiative that required horizontal and vertical engagement), including “WHERE” and “HOW” the experience was obtained. The complainant did not do so, and she was eliminated from the process.
[39]
In addition, Ms. Zeisler reminded me that at Q4 in the FAQ, candidates were instructed of the importance of explaining the length and depth of their experience. The response to Q4 read in part as follows: “You would need to explain the length and depth of your experience(s) and as such, indicate mm-yyyy to mm-yyyy in your application per issue(s) and explain the extent of horizontal and vertical engagement both inside and outside of DFATD.”
[40]
Thus, in essence, applicants had to provide concrete examples of how they met the experience, and they had to explain not only the length of their experience but also its depth. According to Ms. Zeisler, in doing so, they could include the problems encountered and solved.
[41]
Ms. Zeisler specified that the additional instructions in the FAQ were not an additional selection criterion that candidates had to meet. She insisted that even though a large number of applicants submitted applications, she did not instruct the assessors to look for information not already requested from the candidates. She testified that there was no need to add any criterion because the essential qualifications were very well defined, and the instructions to applicants were very clear.
[42]
She added that the majority of applicants understood the instructions and that over 100 applicants qualified in the process.
[43]
Ms. Zeisler explained that she reviewed all applications eliminated from the process to ensure that the assessments were done in accordance with her instructions. There were 960 applicants in the process. She made sure that the assessments were consistent. As for the complainant’s application, she confirmed that because the complainant had not explained the steps she had taken to secure the funding described, Ms. Zeisler agreed that she did not demonstrate that she met this experience.
V.
Analysis
[44]
Section 77(1) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13; PSEA) provides that a person in the area of recourse may make a complaint to the Board that he or she was not appointed or proposed for appointment because the PSC or the deputy head abused its authority in the appointment process.
[45]
Pursuant to s. 77(1)(a), the complainant alleged that the respondent abused its authority in the application of merit.
[46]
The complainant bears the burden of proof in a complaint of abuse of authority. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 48 to 55.
[47]
The complainant submitted that she was very aware of the character limit available to demonstrate her experiences. She called Human Resources twice to ensure that she understood what to do and how to demonstrate her experience within that space limit. Then, following her elimination from the process, in an informal discussion, she understood that due to the large number of applicants, the evaluation committee had been very strict when it evaluated the application letters. The committee had focused on seeing in what way the candidates explained how they had accomplished the work being assessed (e.g., leading a project that required horizontal and vertical engagements) to achieve the final results. Ms. Dault explained to her that that explanation (or demonstration) was necessary because the instructions required the candidates to provide concrete examples of their experience.
[48]
The complainant explained that this is not how she understood the instructions. She explained at the hearing how she understood them. According to her, there were four steps to follow to answer experience 3b), and she followed the instructions. The four requirements were the following.
[49]
First, the candidates had to use the screening qualifications as headers to demonstrate their experience listed under the essential qualifications.
[50]
Second, the candidates had to present how they had the following experience:
...
... at DFATD Headquarters, at a Regional Office, abroad at a Canadian diplomatic mission, or at an international organization outside of the Government of Canada (e.g. public, private, or nongovernmental) ....
...
SIGNIFICANT EXPERIENCE* LEADING a team, an initiative, or a project on substantive DFATD foreign policy, international trade, or international development issues that required horizontal and vertical engagement with DFATD colleagues, partners, and organizations, over the course of a minimum of three (3) assignment cycles**.
...
[51]
Third, the candidates had to provide concrete examples in their cover letters as to how they met the essential qualifications.
[52]
Fourth, the candidates had to provide a description outlining “HOW” the qualification was met, “... including WHERE and HOW the experience was obtained, as well as the PERIOD(S) during which the functions were performed (MM-YYYY to MM-YYYY).”
[53]
The complainant submitted that she met all the requirements. First, she used the header, “ESSENTIAL EXPERIENCE THREE b)”. Then, she provided three examples of her experience leading projects on substantive DFATD foreign policy, international trade, or international development issues.
[54]
For each example, she also provided details pertaining to the horizontal and vertical engagement that each one involved.
[55]
In her view, the information she provided outlined “HOW” the qualification and the experience were met. She also specified “WHERE” the experience was obtained, as well as the period during which she performed her functions.
[56]
The reason she is of the view that the information she provided outlined how the qualification and the experience criteria were met is that Q4 read as follows:
... Do I have to meet all essential and asset qualifications?
Applicants must demonstrate that they meet all essential education and experience qualifications to apply. If you have not had an opportunity to demonstrate supervisory experience, an alternative would be to demonstrate engagement within our department and/or with our partners and stakeholders on substantive DFATD issues as per the Statement of Merit Criteria. For example, as part of an intra- or inter-government working group, you could have led a team on a substantive DFATD foreign policy, international trade, or international development issue, that required engagement with DFATD colleagues, and/or OGDs, and/or NGOs, and/or foreign governments, and/or clients and/or or contacts, etc. to provide a recommendation or a course of action to your manager. You would need to explain the length and depth of your experience(s) and as such, indicate mm-yyyy to mm-yyyy in your application per issue(s) and explain the extent of horizontal and vertical engagement both inside and outside of DFATD.
...
[Emphasis in the original]
[57]
She pointed out that she followed these additional instructions. She indicated how, where, and during which period each of her three experiences was accrued. Her information sections were clearly prefaced by “HOW”, “WHERE”, and “PERIOD”.
[58]
The complainant brought the following decisions to my attention. Tibbs, at paras. 70 to 74, notes that there are at least five general categories of abuse, which are described in the decision. The third category of abuse of discretion is when the result is unfair, such as when unreasonable, discriminatory, or retroactive actions have been taken.
[59]
The complainant also brought to my attention the decision in Chiasson v. Deputy Minister of Canadian Heritage, 2008 PSST 27 at paras. 50 to 57, in which the Public Service Staffing Tribunal (“the Tribunal”) determined that there was an abuse of authority on the basis that the respondent changed the instructions for the remote written examination without ensuring that the complainant had received the new instructions.
[60]
The complainant argued that also in this case, the committee changed the instructions, and she was not notified of the change. It looked for specific information in her application letter, but she did not understand that she had to provide that kind of information.
[61]
The complainant brought to my attention, as well, Clark v. Deputy Minister of National Defence, 2019 FPSLREB 8 at paras. 44 to 46. In that case, it was held that it is reasonable to assume that candidates participating in a written examination are entitled to rely on the clear and explicit wording of the questions when formulating their answers.
[62]
She submitted that similarly, it is reasonable to assume that candidates participating in a process are entitled to rely on clear and explicit instructions when formulating their responses in their application letters.
[63]
Finally, the complainant brought to my attention Morgenstern v. Commissioner of the Correctional Service of Canada, 2010 PSST 18 at paras. 28 to 34. In that case, the Tribunal noted the following at paragraph 28:
28 The Tribunal finds that the board acted improperly in applying the experience qualifications E1 and E2 in a way that changed them in substance. The plain meaning of E1 is that both management and leadership experience must be demonstrated. Similarly, the plain meaning of E2 is that a candidate must show management experience. The board erred by interpreting management experience and leadership experience as synonymous or interchangeable. If they were intended to be read in that way, the intention would have been apparent on the face of the SMC and it is not.
[64]
She submitted that according to that decision, if the instructions were to be interpreted in a certain way, it would have been indicated in the Statement of Merit Criteria and the FAQ, which was not the case. Precisely, she knew that she needed to outline “... HOW each qualification [was] met, including WHERE and HOW the experience was obtained, as well as the PERIOD(S) during which the functions were performed (MM-YYYY to MM-YYYY).” Yet, also reading Q4 in the FAQ, she interpreted these instructions to mean that the way to demonstrate the length and depth of her experience was to “... indicate mm-yyyy to mm-yyyy in [her] application per issue(s) and explain the extent of horizontal and vertical engagement both inside and outside of DFATD.” That is why she structured her response the way she did.
[65]
Her response was seen as insufficient. She disagrees. In her view, the instructions did not include plain and clear language that was apparent. For this reason, she asked to be screened back into the staffing process.
[66]
In its reply, the respondent submitted that in Visca v. Deputy Minister of Justice, 2007 PSST 24 at para. 42, the Tribunal stated, “Broad discretion is given to managers under subsection 30(2) of the PSEA to establish the necessary qualifications for the position they want to staff and to choose the person who not only meets the essential qualifications, but is the right fit.”
[67]
The respondent submitted that the qualifications to be assessed were clearly outlined and detailed on the Statement of Merit Criteria. It submitted that the instructions on the poster clearly outlined in what way applicants were expected to demonstrate how they satisfied the essential and asset qualifications.
[68]
It reminded me that the advertisement stated the following:
...
Please note: It is not sufficient to state simply that the qualification is “met” or to provide a list of current or past responsibilities. The candidate must provide concrete examples in their COVER LETTER as to how they meet the ESSENTIAL and ASSET qualifications per group and level. Candidates MUST use the following format in their COVER LETTER: Use as headers each screening qualification as it relates to the candidate’s Education and Experience listed under Essential and Asset Qualifications. Under each of the headings, candidates are to then provide a description outlining HOW each qualification is met, including WHERE and HOW the experience was obtained, as well as the PERIOD(S) during which the functions were performed (MM-YYYY to MM-YYYY). Your COVER LETTER must adhere to the aforementioned stipulated format.
...
[69]
The respondent submitted that using clear and concrete examples, all applicants had to demonstrate how they met the experience criteria using the template provided. It was not sufficient to rely solely on the selection board’s knowledge of the applicants or their résumés.
[70]
Its instructions to applicants were clear. They had to do the following: (1) use as headers each screening qualification (education and experience criteria listed under “Essential and Asset Qualifications”); (2) under each heading, “... provide a description outlining HOW each qualification [was] met, including WHERE and HOW the experience was obtained, as well as the PERIOD(S) during which the functions were performed (MM-YYYY to MM-YYYY)”; and (3) be aware that failing to demonstrate clearly in the cover letter how each candidate met the screening criteria would result in the rejection of his or her application.
[71]
The respondent noted that in her application, the complainant stated this:
...
... I was required to engage horizontally and vertically with other divisions at DFATD headquarters ... [she then lists stakeholders with whom she engaged] ... This engagement led to a number of projects being approved an [sic] implemented in Haiti including the construction of a police vehicle maintenance garage ($7 million), a first aid training program for new officers ($1.3 million) and installation of training facilities ($1.9 million).
WHERE: START Programs Division (IRG) PERIOD: 08-2009 to 08-2011
...
[72]
The respondent submitted that although the complainant provided an example of leading a project, she failed to demonstrate key points that detailed what the engagements involved. The mere fact that the project resulted in funding approval did not demonstrate how the complainant performed leadership on the project. She provided no details about how her projects were developed or implemented.
[73]
It added that it is the candidates’ responsibility to clearly demonstrate in their applications that they meet all the essential qualifications. This was pointed out as follows in the Tribunal’s decision in Walker-McTaggart v. Chief Executive Officer of Passport Canada, 2011 PSST 39 at para. 21:
21 The Tribunal has held in several decisions that it is a candidate’s responsibility to clearly demonstrate in their application that they meet all the essential qualifications. ... The instructions to candidates in this case were clear. The JOA [job opportunity advertisement] explicitly cautioned candidates that failure to demonstrate their qualifications in their applications could result in their elimination from the appointment process.
[74]
Similarly, the respondent pointed out that Charter v. Deputy Minister of National Defence, 2007 PSST 48 at para. 37, states, “In order for a candidate to be appointed to a position, he must demonstrate through the chosen assessment process, that he meets the essential qualifications for the position.” Yet, it submitted that the complainant did not demonstrate that she met an essential experience qualification.
[75]
The respondent also submitted that the assessment board was in the best position to assess whether it had sufficient information to assess each candidate. Since the candidates were informed of the qualifications that would be assessed at the screening phase, it is unreasonable to allege that the respondent abused its authority because the complainant did not provide sufficient information.
[76]
Ms. Zeisler clarified that the requirement that candidates provide the breadth and depth of their experience was not a new criterion. As she explained, she was in charge of the process, so she would have known if a new criterion was added.
[77]
The respondent submitted that it is not mandatory to inform candidates of the complete details of how a particular qualification will be assessed. For example, Neil v. Deputy Minister of Environment Canada, 2008 PSST 4 at para. 51, mentions as follows:
51 However, failure to inform candidates of a specific definition related to a merit criterion does not, in and of itself, amount to abuse of authority. The qualification established by the managers and against which candidates would be assessed was set out in the Statement of Merit Criteria....
[78]
The respondent pointed out that as stated in Jean-Pierre v. Chairperson of the Immigration and Refugee Board, 2016 PSLREB 62 at para. 54, a reference document can be developed before the assessors begin screening. In this case, it insisted that all the guidelines and training of the assessors took place before they began screening candidates.
[79]
The respondent also brought to my attention paragraph 70 of Wilkinson v. Deputy Minister of National Defence, 2017 FPSLREB 1. I wrote the following in that decision:
...
70 The parties often disagree about assessment boards’ answer ratings. However, in this case, it was a judgment call by the assessment board, which was in the best position to determine the degree to which the complainant was successful. As mentioned in Drozdowski v. Deputy Head (Department of Public Works and Government Services), 2016 PSLREB 33 at para. 36: “The assessment board must have some leeway in determining what constitutes satisfactory answers and to what extent the answers reflect the qualities sought ...”. In this case, points were attributed according to the rating scale’s description of the types of answers provided. I am satisfied that the complainant’s answer was properly assessed.
...
[80]
In sum, the respondent submitted that the process was fair and transparent. The same assessment rules were applied to all candidates. Therefore, it asked that the complaint be dismissed.
[81]
As mentioned, the complainant was eliminated at the screening phase of the process. The assessment board concluded that she failed to provide concrete examples of how she met the experience qualification at issue. It determined that she did not demonstrate that she met the essential experience qualification, and her candidacy was eliminated from further consideration. The respondent provided the following example: it was not enough to say that the mandate was to bake a cake (or that the mandate was to lead a project on substantive DFATD foreign policy, international trade, or international development issues), that she used ingredients x, y, and z (that she engaged horizontally and vertically with stakeholders) and that the cake had been served (or that the project was successful). It was important to explain how she had done it.
[82]
Although the Board has no jurisdiction to reassess the complainant’s answers, it can assess whether she was properly assessed, to determine whether there was an abuse of authority in the assessment. If the tool used to assess a qualification is flawed, the result cannot be considered fair or reasonable and will constitute an abuse of authority.
[83]
I note that the complainant provided several examples of her experience leading projects on substantive DFATD foreign policy, international trade, or international development issues, which required horizontal and vertical engagements. Specifically, she provided the following examples of projects she led:
...
... In my assignment in START I led stabilization and reconstruction project development, implementation, monitoring and evaluation. In order to fully develop a project I was required to engage horizontally and vertically with ... This engagement led to a number of projects being approved an [sic] implemented in Haiti including the construction of a police vehicle maintenance garage ($7 million), a first aid training program for new officers ($1.3 million) and installation of training facilities ($1.9 million)....
...
... In my posting to the Embassy of Canada to Haiti I led project implementation, monitoring and evaluation on stabilization and reconstruction and international security projects. In order to fully implement a project such as the construction of 2 large police stations ($6 million), the installation of a fingerprint database ($1 million) and the provision of 100 patrol vehicles ($4.9 million) ....
...
... In my current assignment with the Middle East Relations division I have led on several large projects on international security and engagement that involved both horizontal and vertical engagement. I was the lead in drafting the Canada-Jordan partnership strategy in response to a request from the Prime Minister... I was also the lead officer on organizing the Prime Minister’s visit to the Middle East in January 2014... I was also the lead officer for the incoming visit of the Foreign Minister of the United Arab Emirates in July 2014. This visit included stops in three cities and the involvement of ....
...
[84]
For each example, she provided a detailed list of whom she engaged with (horizontally and vertically).
[85]
I find that given the instructions in Q4 in the FAQ, the answer the complainant provided was correct. The wording of Q4 included the following: “You would need to explain the length and depth of your experience(s) and as such, indicate mm-yyyy to mm-yyyy in your application per issue(s) and explain the extent of horizontal and vertical engagement both inside and outside of DFATD.”
[86]
In her answer, the complainant did explain the length of her experience (month and year, or mm-yyyy, to mm-yyyy in her application). Then, to explain the depth of her experience, as instructed in the response to Q4, she listed in detail (using many characters) “the extent” of her horizontal and vertical engagements both inside and outside DFATD. She listed each partner with which she collaborated to carry out the projects.
[87]
In her view, the information she provided outlined how the qualification and the experience criteria were met.
[88]
I find that given how the experience requirements and instructions were worded in the Job Opportunity Advertisement and the response to Q4 of the FAQ, it was reasonable for the complainant to provide the answer she did to demonstrate her experience under experience 3b). She made sure to define “the extent” of her engagements (horizontal and vertical). She used many characters for this purpose. In doing so, she felt that she provided all the requested information.
[89]
Thus, if the respondent feels that the answer that the complainant provided was not what it was looking for, I think that it is important that it revise the instructions it gives to candidates to ensure that this kind of literal interpretation is corrected. Obviously, the language in the Job Opportunity Advertisement and FAQ should be unambiguous to avoid the potential occurrence of similar misunderstandings in the future.
[90]
It might also be a good idea to define the terms “horizontal engagement” and “vertical engagement” in the Job Opportunity Advertisement or FAQ, to avoid any confusion about them.
[91]
Therefore, I conclude that the evaluations of Ms. Dault and Ms. Zeisler, which were based on a more stringent interpretation of the instructions to the candidates, cannot be considered fair or reasonable and that they can constitute an abuse of authority.
[92]
For these reasons, I find that the complainant has proven that the respondent abused its authority when it concluded that she failed to demonstrate that she met the essential experience qualification at issue.
[93]
For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VI.
Order
[94]
The complaint is allowed.
[95]
I order that the complainant be given the opportunity to proceed to the next stages of the assessment process. If she is deemed qualified, she shall be eligible for an appointment to a position until the pool of qualified candidates from that process expires or, if the pool has already expired, until two years have passed from the date of this decision, whichever is longer.
September 16, 2021.
Nathalie Daigle,
a panel of the Federal Public Sector Labour Relations and Employment Board