Date: 20220216

Files: EMP-2017-11185 and 11430

 

Citation: 2022 FPSLREB 9

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

RONDA HANSEN

Complainant

 

and

 

DEPUTY HEAD

(Department of Justice)

 

Respondent

and

OTHER PARTIES

Indexed as

Hansen v. Deputy Head (Department of Justice)

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

Before: Joanne B. Archibald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Satinder Bains, Public Service Alliance of Canada

For the Respondent: Elizabeth Matheson, counsel

For the Public Service Commission: Alain Jutras

Heard via videoconference,

September 29 and October 1, 2021.

REASONS FOR DECISION

I. Introduction

[1] The complainant, Ronda Hansen, made two complaints under ss. 77(1)(a) and (b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”) concerning appointment process 16-JUS-PRO-IA-102776 (“the appointment process”). She alleged abuse of authority by the respondent, the deputy head of the Department of Justice, in the advertised appointment process for the paralegal C position, classified at the EC-03 group and level (“the paralegal position”).

[2] According to the complainant, abuse of authority occurred in the application of merit and in the choice of an advertised appointment process to staff two paralegal positions located in Saskatoon, Saskatchewan.

[3] The respondent denied abusing its authority in the application of merit or the choice of the advertised appointment process. It stated that it had an existing pool of qualified candidates from the appointment process. Two candidates were appointed from it. One appointment was to act in the paralegal position for one year and the other was an indeterminate appointment.

[4] The Public Service Commission did not attend the hearing and provided written submissions addressing the applicable policies and guidelines. It did not take a position on the merits of the complaint.

II. Background

[5] The complainant and the appointees were candidates in the appointment process. They were all found qualified.

[6] On April 20, 2017, a notice of acting appointment (NAA) announced the appointment of Tracey Wawryk (“appointee A”) from the appointment process for the period of February 24, 2017, to December 29, 2017 (“the acting appointment”).

[7] On May 4, 2017, the complainant made a complaint of abuse of authority under s. 77 of the PSEA against the acting appointment.

[8] On September 25, 2017, a notification of appointment or proposal of appointment announced the indeterminate appointment of Kelly-Ann Donald (“appointee B”) from the appointment process (“the indeterminate appointment”).

[9] On September 28, 2017, the complainant made a complaint of abuse of authority under s. 77 of the PSEA against the indeterminate appointment.

III. Summary of the evidence

A. For the complainant

[10] The complainant testified that she is an Indian as defined by the Indian Act (R.S.C., 1985, c. I-5). She is active on local, regional, and national committees working on retaining and promoting Aboriginal employees, as that term is used in the Employment Equity Act (S.C. 1995, c. 44). Section 3 of the Employment Equity Act defines “Aboriginal peoples” to mean “persons who are Indians, Inuit or Métis.”

[11] Since 2000, she has occupied a CR-05 legal assistant position with the respondent in its Aboriginal Law section in Saskatoon. She testified that for the first three or four years, she worked in advisory, support, and administrative services (“advisory services” or “the advisory group”). She then transitioned to litigation.

[12] The complainant stated that her career goal to become a paralegal led her to apply to the appointment process. She became aware of the acting and indeterminate appointments when she saw the announcements.

[13] The complainant testified that appointee A told her that she did not finish the examination administered in the appointment process. On that basis, the complainant questioned how appointee A could have been found qualified and appointed ahead of her.

[14] The complainant also felt that appointee A’s appointment reflected personal favouritism. She stated that the deputy regional director, who was the hiring manager (“the hiring manager”), had inquired about using appointee A’s vacation property.

[15] The complainant’s written allegations suggest that appointee A was groomed for the position for several months before the acting appointment was made.

[16] Further, the complainant stated that she had conflicts with the hiring manager, including a grievance about her workload and the assignment of paralegal work to her. She felt that she then became a target and that the hiring manager was biased against her.

[17] As an example, the complainant referred to a request she made in August 2017 for leave with income averaging. She did not receive approval until the end of December 2017. She found the delay very disrespectful.

[18] The complainant also alleged that there was an employment equity gap for Aboriginal people that should have been addressed when making the appointments to the paralegal position. In her closing argument, the complainant also alleged discrimination.

[19] Concerning the choice of process, the complainant stated that she believed that she was as qualified as the appointees and that she ought to have been asked whether she was interested in the appointments before they were selected.

B. For the respondent

[20] At the time of the appointment process and the appointments, Voula Karlaftis was the regional director (“the regional director”) of the respondent’s Aboriginal Law section for Manitoba and Saskatchewan. The hiring manager reported to her.

[21] The regional director stated that two senior-level EC employees located in Edmonton, Alberta, conducted the appointment process. It resulted in a qualified pool of candidates, all of whom met the essential qualifications for the position.

[22] Addressing the complainant’s concern that an expression of interest should have been solicited, the regional director testified that applying to the appointment process was considered a sufficient expression of interest in the paralegal position. A further request for expressions of interest would have been sent only had a qualified pool of candidates not been available.

[23] Appointee A was appointed from the qualified pool to perform the work of a litigation paralegal. The regional director testified that the work of a litigation paralegal was intensely focused on documents and discovery. At the time of the acting appointment, the respondent was under great pressure due to the volume of litigation which exceeded the capacity of the staff. The respondent needed a candidate who could step in and carry out the required work immediately.

[24] Asset criteria were applied to select the right-fit candidate for the acting appointment from the qualified pool. The asset criteria were (1) experience working in the Aboriginal Law section, (2) experience working on a litigation file using software such as Ringtail, and (3) experience related to the production of documents in complex and large document cases, both manually and electronically.

[25] The regional director stated that appointee A was selected because she received the highest score for the essential qualifications in the appointment process, met all the qualifications, and received a rating of “exceeds” for six of them. “Exceeds” was defined in the appointment process rating guide as, “Addresses majority of key issues and provides depth on most and/or provides information beyond what was expected. Overall, candidate demonstrated a better than average level of performance.” Appointee A also met all the asset criteria.

[26] The complainant met all the essential qualifications but achieved no ratings of “exceeds”. She met all the asset criteria. As a result, her score was less than appointee A’s score.

[27] The regional director explained that appointee A was initially appointed for a period of less than four months. During that time, steps were taken to secure a secret level security clearance so that she could be assigned more sensitive work. Once it was received, the appointment was extended for a total period of one year, and the NAA was posted.

[28] Linda Kaminski, the legal support team leader (“the team leader”) in Saskatoon, provided references in the appointment process for the complainant and appointee A. She testified that she had good work relationships with both of them but no personal relationship outside the workplace.

[29] The team leader confirmed that prior to the acting appointment, appointee A worked as a litigation assistant. According to the team leader, the appointee was always a good legal assistant and it was common for her to receive comments from counsel describing her work as excellent. The complainant, too, was a good legal assistant.

[30] The regional director testified that appointee B was appointed to a paralegal position in the advisory group. Advisory work was transactional, focused on land and land registry, in conjunction with understanding the reserve process for First Nations, treaty land entitlement, and Indian oil and gas work. The advisory group existed to work with clients to avoid litigation.

[31] Before the appointment, appointee B worked in advisory services as a paralegal at the EC-2 group and level. She met the asset criteria for the appointment, including extensive experience in providing advisory legal support.

[32] Concerning employment equity, the regional director stated that the respondent’s employment equity plan for April 1, 2014, through March 31, 2017, described its quantitative and qualitative commitment to meet its goals. Employment equity gaps were reviewed throughout every year and considered in the context of each appointment process.

[33] The respondent’s employment equity progress report of April 2015 described “... a new gap for Aboriginal Peoples in the EC group (-2); this was the result of separations.”

[34] The regional director noted that the progress report of April 2016 stated, “The gap for Aboriginal Peoples in the EC group of (-2) at March 31, 2015 was closed at March 31, 2016; this was the result of promotions” [emphasis in the original].

[35] There was no existing gap at the time of the appointments, according to the regional director. Had the gap re-emerged, the respondent’s Human Resources section would have raised the issue before the appointments were made.

[36] The team leader acknowledged that the complainant had submitted an application for leave with income averaging dated August 31, 2017. She identified her response to the complainant on September 20, 2017. It stated that she and the hiring manager supported the leave but that she needed to find someone to replace the complainant and that she was working on it. She believed that the three-week delay before responding was due to the effort to find a solution to manage the complainant’s absence.

[37] The leave was approved in December 2017, and the complainant’s work was covered by distributing it among existing staff members.

IV. Summary of the arguments

A. For the complainant

[38] The complainant felt that she was well qualified but that due to office politics, she was overlooked and denied these appointment opportunities. She was passionate and had received multiple awards. In her view, the appointments reflected discrimination against her.

B. For the respondent

[39] The respondent provided a reasonable explanation for the appointments. The appointees were selected from a pool of qualified candidates.

[40] Appointee A was the highest scoring candidate, achieving a rating of “exceeds” on 6 of 13 qualifications. She possessed the 3 asset qualifications.

[41] Appointee B did well on the assessment, was good at her job, and gave every indication that she would succeed in the position. The key asset qualifications that made her the right fit were her experience in advisory services and her knowledge of the processes and databases, particularly those in real property and land registration. Her experience was recent, and her knowledge was current.

[42] As for the argument of favouritism toward appointee A, the evidence had to show personal favouritism or a relationship between the appointee and the decision maker. While the complainant mentioned a conversation between appointee A and the hiring manager enquiring about appointee A’s vacation property, there was no evidence that might establish a link to personal favouritism.

[43] It was insufficient for the complainant to allege bias without providing more. Bias must be real, probable, or obvious. Speculation is not enough. It could not be inferred that the hiring manager was biased merely because of the complainant’s earlier grievance. Moreover, the team leader explained her reasons for the delay approving the complainant’s leave with income averaging.

[44] As for employment equity gaps, the evidence showed that the gap for Aboriginal employees in the EC group was closed, and there was no evidence of it re-emerging by the time these appointments were made.

[45] Concerning the discrimination allegation that was raised in argument, the respondent agreed that the complainant is a member of protected group and that she suffered an adverse impact when she was not selected for these appointments. However, the evidence did not show that the protected ground was a factor.

[46] As for the choice of process, applying to the appointment process constituted an expression of interest, and a further request for interest was not necessary.

V. Analysis

A. Abuse of authority in the application of merit

[47] The PSEA states at s. 30 that appointments must be made based on merit. In the present case, this included essential and asset qualifications established for the paralegal position.

[48] While the complainant suggested that appointee A did not finish the examination, no evidence was presented either to support her suggestion or to cast doubt on the assessment of appointee A’s examination. This might have been accomplished by presenting the examination in evidence or by challenging its marking as unreasonable. However, this was not done. I am left with the complainant’s bald assertion that in my view, is insufficient to lead me to conclude that appointee A was improperly assessed.

[49] The complainant referred to appointee A being groomed by her prior appointment to act in the paralegal position. The regional director’s evidence was that the initial short-term appointment from the qualified pool allowed appointee A to secure secret level clearance before the acting appointment was extended to a full year. This is a reasonable explanation, consistent with an operational requirement, and does not suggest that appointee A was inappropriately groomed for the appointment.

[50] The complainant presented no challenge to appointee B’s assessment or qualifications.

[51] The complainant expressed her feelings that she was overlooked for these appointments.

[52] The respondent replied by demonstrating through evidence that each appointee’s appointment reflected the right fit. Appointee A outscored all other candidates, including the complainant. Other than the complainant’s statement about the examination not being finished, no evidence to the contrary was presented. Appointee B worked in advisory services before her appointment. Extensive experience in advisory services was required for the position to which she was appointed. The complainant did not challenge the assessment of appointee B’s experience, noting only that she also had experience in advisory services.

[53] I am of the view that no evidence of substance was presented to suggest that either appointee A or appointee B failed to meet the essential and asset criteria for the paralegal position.

[54] The complainant raised an allegation that personal favouritism tainted appointee A’s selection. According to s. 2(4) of the PSEA, abuse of authority includes personal favouritism.

[55] The former Public Service Staffing Tribunal (“the Tribunal”), a predecessor to the present Federal Public Sector Labour Relations and Employment Board (“the Board”), noted in Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7, at para. 39, that the word “personal” precedes “favouritism,” which emphasizes Parliament’s intention that both words be read together. The Tribunal went on to describe personal favouritism at para. 41, as follows:

[41] Where there is a choice among qualified candidates, paragraph 30(2)(b) of the PSEA indicates that the selection may be made on the basis of additional asset qualifications, operational requirements and organisational needs. The selection should never be for reasons of personal favouritism. Undue personal interests, such as a personal relationship between the person selecting and the appointee should never be the reason for appointing a person. Similarly, the selection of a person as a personal favour, or to gain personal favour with someone else, would be another example of personal favouritism.

 

[56] The complainant testified that the hiring manager once asked appointee A about a vacation property.

[57] Such a conversation between the hiring manager and appointee A might indeed be relevant to finding that a personal relationship existed or that a personal favour or gain was exchanged. However, from the complainant’s evidence, I am not able to discern when this conversation occurred relative to the acting appointment, whether the complainant was present, or the outcome of it. Without context or corroboration, the limited information provided is not sufficient to discharge the evidentiary burden of the balance of probabilities.

[58] The complainant also asserted that the hiring manager was biased against her because of an earlier grievance. She pointed to the delayed approval of her leave with income averaging as further evidence of bias.

[59] The test for a reasonable apprehension of bias is well established. In the setting of an appointment process, the question to be answered is whether a reasonably informed bystander could reasonably perceive bias on the part of one or more of the persons responsible for assessment, the Board can conclude that abuse of authority exists (see Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10; Drozdowski v. Deputy Head (Department of Public Works and Government Services Canada), 2016 PSLREB 33).

[60] As for the approval of the leave, I note that it was requested in September 2017 and approved in December 2017. The team leader explained the delay as the time she spent seeking a solution to cover the complainant’s work. This was a reasonable explanation, and there was no suggestion that the hiring manager influenced the delay.

[61] Concerning the question of whether an earlier grievance predisposed the hiring manager against the complainant, I rely on the Federal Court’s decision in Gandhi v. Canada (Canada Border Services Agency), 2015 FC 436, which was confirmed by the Federal Court of Appeal (2016 FCA 124). The relevant aspect of that case concerns an allegation of bias in the assessment of the complainant because of his earlier complaint to the Tribunal.

[62] At paragraph 58 of Gandhi, the Federal Court held, “This type of situation is common in labour relations, and it cannot be inferred from it that a manager loses his or her impartiality towards an employee because the employee has filed a complaint, a grievance or some other recourse.”

[63] In Denny v. Deputy Minister of National Defence, 2009 PSST 29, at para. 124, the Tribunal noted that suspicions, speculations or possibilities of bias are not enough. Bias must be real, probable and obvious. The evidence of the earlier grievance, together with the team leader’s explanation for the delay before approving the leave, does not satisfy this analysis. The evidence does not disclose bias that is “real, probable or reasonably obvious” and does not lead me to infer that the hiring manager was biased against the complainant.

[64] To conclude with respect to personal favouritism and bias, the evidence does not support a finding that they were influences in the acting or indeterminate appointment.

[65] I turn next to the complainant’s concern that an unfilled employment equity gap existed that ought to have been addressed in these appointments. The respondent’s records show a gap on March 31, 2015, for Aboriginal people in the EC group. However, by March 31, 2016, the gap was closed. No contradictory evidence was presented.

[66] The notifications for the appointments of appointee A and appointee B occurred on April 20, 2017, and September 25, 2017, respectively. The appointments occurred more than a year after the gap closed, and there is no evidence of the gap for Aboriginal people in the EC group recurring by the time these appointments were made.

[67] The complainant advanced a discrimination allegation in her closing argument.

[68] Section 80 of the PSEA provides that in considering whether a complaint under s.77 is substantiated, the Board may interpret and apply the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “CHRA”). According to s. 7 of the CHRA, it is a discriminatory practice to refuse to employ or to continue to employ an individual based on a prohibited ground of discrimination. Section 3 of the CHRA states that race is among the prohibited grounds of discrimination.

[69] To demonstrate that the respondent has committed a discriminatory act, the complainant must show prima facie (meaning at first view) evidence of discrimination, namely, 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).

[70] To establish a prima facie case of discrimination, the complainant had to demonstrate that (1) she possesses a characteristic protected against discrimination under the CHRA, (2) she suffered an adverse employment-related impact, and (3) the protected characteristic was a factor in the adverse impact. See Moore v. British Columbia (Education), 2012 SCC 61.

[71] Turning to the first stage of the test, as the complainant stated at the outset of her evidence and the respondent acknowledged, she is Indigenous. She possesses a characteristic that is protected from discrimination; namely, race.

[72] Secondly, the complainant suffered an adverse employment-related impact when she was not selected for either paralegal position.

[73] Thirdly, objective assessment criteria formed the basis for the choice of the appointees. Appointee A outscored the complainant for the essential merit criteria. Appointee B had the requisite experience in advisory services. I note that her experience was current and ongoing. By contrast, according to the complainant’s testimony, she last worked in advisory services prior to 2005.

[74] The respondent provided a rational and coherent explanation for the selections from the qualified pool. Appointee A’s higher score and appointee B’s experience were determinative in selecting them as the right fit for the appointments. The evidence does not support in any way the assertion that discrimination was a factor in the adverse impact that the complainant experienced. The third branch of the test for a prima facie case of discrimination is not established.

[75] Therefore, I conclude that a prima facie case of discrimination has not been made out by evidence. It was not sufficient for the complainant to claim that she was treated unfairly. The discrimination allegation required support from evidence to suggest that the prohibited ground of race was a factor in the adverse employment-related impact.

[76] Because the complainant did not demonstrate a prima facie case of discrimination, no further answer to the discrimination allegation is required from the respondent.

[77] To conclude, the evidence does not support the allegation of an abuse of authority in the application of merit.

B. Abuse of authority in the choice of process

[78] Section 33 of the PSEA gives the respondent the discretion to use an advertised or a non-advertised process to make appointments.

[79] The complainant’s assertion is that it was an abuse of authority to use an advertised appointment process. She felt that she ought to have been approached for an expression of interest before the respondent accessed the qualified pool of candidates from the appointment process.

[80] As the Tribunal held in Robbins v. Deputy Head of Service Canada, 2006 PSST 17 at para. 36, a complainant must demonstrate that the choice of process constituted an abuse of authority.

[81] As the complainant acknowledged in her evidence, she expressed her interest in the paralegal position by applying for it. On that basis alone, it was unnecessary for the respondent to contact her further once it exercised its discretion under section 33 of the Act use the results of that advertised appointment process to select qualified candidates.

[82] On the basis of the evidence presented, I find no abuse of authority in the choice of process.

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

(The Order appears on the next page)

VI. Order

[84] The complaints are dismissed.

February 16, 2022.

Joanne B. Archibald,

a panel of the Federal Public Sector

Labour Relations and Employment Board