Date: 20220914

File: 771-02-39300

 

Citation: 2022 FPSLREB 78

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

 

Eric Bossley

Complainant

 

and

 

Deputy Head

(Correctional Service of Canada)

 

Respondent

Indexed as

Bossley v. Deputy Head (Correctional Service of Canada)

In the matter of a complaint of abuse of authority under paragraph 77(1)(a) 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: Frank Janz

For the Respondent: Patrick Turcot

For the Public Service Commission: Alain Jutras

Heard by videoconference,

July 18, 2022.

REASONS FOR DECISION

I. Introduction

[1] The complainant, Eric Bossley, made a complaint to the Federal Public Sector Labour Relations and Employment Board (“the Board”) under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”). He alleged abuse of authority in the application of merit by the respondent, the deputy head of the Correctional Service of Canada (“the respondent”), in appointment process 2017-PEN-IA-PAC-129308 (“the appointment process”) for the position of Food Services Manager in a Regional Food Production Centre (“Regional Food Services Manager”), classified GS-FOS-09.

[2] The respondent denied abusing its authority in the appointment process.

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

[4] For the following reasons, the complaint is dismissed.

II. Summary of the evidence

[5] On October 12, 2017, the respondent posted the appointment process for the Regional Food Services Manager position, with a closing date of November 8, 2017. One of the essential experience qualifications was the following: “Significant* experience managing an institutional food services operation. *Significant experience is defined as at least 4 months [sic] experience within the past 3 years as a Food Service Manager managing an institutional food services operation” (“E1”).

[6] According to evidence tendered during the hearing, this requirement was drawn directly from the national generic statement of merit criteria for the Regional Food Services Manager (Regional) position.

[7] The complainant testified that from 1999 until his retirement in 2014, he was a GS-FOS-09 food services manager (Central Food Distribution or Dual Feeding Systems mostly Central Distribution) (“Central Food Services Manager”) at Matsqui Institution in Abbotsford, British Columbia. According to the work description for the position, the complainant was responsible for planning and directing the daily activities of the institutional food services program, which included ordering, planning, preparing, and distributing meals.

[8] Upon the complainant’s retirement, the Central Food Services Manager position was abolished. This coincided with the modernization and transformation of the respondent’s food services to move food production from the institutional level to a regional production kitchen. As explained by the complainant, the difference was that the regional production kitchen operated a cook-chill facility, preparing meals for distribution to finishing kitchens located in institutions.

[9] The Regional Food Services Manager oversaw the new regional production kitchen. The complainant confirmed that he never worked in that position.

[10] In 2016, the complainant approached the respondent about returning to the workplace. He received a contract to train and mentor GS-FOS-07 managers for the finishing kitchens.

[11] In 2017, the complainant became aware that the incumbent of the Regional Food Services Manager position intended to retire at the end of 2017. He decided that he would like to return to work. He approached several people who worked for the respondent and received their support.

[12] To return to the public service and become eligible to apply for an internal advertised position, the complainant accepted a casual position followed by a specified term position in the kitchen at Matsqui Institution. He then learned that the incumbent would not retire before the end of 2018, and he confirmed his understanding that an internal advertised appointment process would be used to fill the Regional Food Services Manager position.

[13] The complainant testified that when the appointment process was advertised, he was shocked to discover the requirements of E1. As he had retired three years earlier, he did not have management experience in the past three years. E1 would screen him out of the appointment process.

[14] The complainant stated that he endeavoured to have E1 reconsidered. He tried without success to meet with the chairperson of the assessment board. The meeting was declined. He was advised to apply and received assurance that his application would be judged on its merit.

[15] The complainant hoped for some discretion from the assessment board as he had mentored the same GS-FOS-07 employees who would apply for the Regional Food Services Manager position. However, his application was screened out for the failure to meet E1.

[16] The complainant explained that he then participated in an informal discussion with the assessment board, in which he asked to have his qualifications and his contract experience considered as an alternate way to meet E1. He felt that he was more qualified than were other applicants. Having returned from retirement to work at Matsqui Institution, he understood the changes to food services and had identified the challenges of the new system. His reconsideration request was unsuccessful.

[17] Dave Millar, the former incumbent of the Regional Food Services Manager position, testified that he occupied the position from February 2014 until his retirement in 2018. Before that, he was a Central Food Services Manager.

[18] The former incumbent testified that he was one of three assessment board members for the appointment process. He confirmed that the board used the respondent’s national generic statement of merit criteria. He reviewed the screening report and noted that the complainant did not meet the requirements of E1.

[19] The former incumbent stated that the E1 requirement for experience in the previous three years coincided with the introduction of the regional food services model in August 2014. Formerly, food preparation was done at each institution. After food services were reorganized, a production kitchen filled and froze food orders before shipping them to institutions.

[20] The former incumbent noted that the assessment board felt no need to change E1 as it considered that good candidates were likely to apply who would meet the requirement. In his view, although the complainant had acquired experience before the three-year period stipulated in E1, it would have been unfair to change the position requirements to include him after the process had started.

III. Summary of the arguments

[21] The complainant expressed his surprise when he was screened out of the appointment process. He took it seriously and felt that he had been bypassed. He believed that the respondent abused its authority in the application of merit by screening him out of the appointment process and not considering all his qualifications.

[22] The respondent argued that the E1 requirement was not arbitrary and that the three-year period coincided with the implementation of the organizational changes to food services. The complainant did not meet that requirement and was ineligible for appointment from the appointment process. The respondent has the discretion to create essential qualifications, and it is not for the Board to substitute its determination of the essential qualifications or its assessment of candidates’ qualifications.

[23] The complainant’s representative clarified that the complainant wished to withdraw an allegation of human rights discrimination that was made earlier in this process.

IV. Reasons

[24] Section 77(2)(a) of the PSEA provides that an unsuccessful candidate in the area of selection for an advertised appointment process may complain to the Board that he or she was not appointed because of an abuse of authority. Abuse of authority is defined in s. 2(4) PSEA which provides that it “shall be construed as including bad faith and personal favouritism.”

[25] 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.)

[26] When determining whether there has been an abuse of authority, the Board and the former Public Service Staffing Tribunal (“the Tribunal”) have confirmed that their role is not to reassess candidates or redo the appointment process. (See, for example, Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 20, and Clark v. Deputy Minister of National Defence, 2019 FPSLREB 8.)

[27] As stated in s. 30 of the PSEA, public service appointments must be made on the basis of merit, meaning that an appointee must, at a minimum, meet the essential qualifications and other stated requirements for the position. Moreover, s. 30 provides that qualifications are set by the deputy head.

[28] The evidence in this case shows that in 2014, a significant change occurred in the respondent’s delivery of food services. In late 2017, when the appointment process was posted, E1 required a minimum of four months of management experience in the preceding three years. According to the documentary evidence, this requirement was drawn from a national generic statement of merit criteria. Significantly, in my view, the three-year period approximated the time since the changes were begun. While the complainant argued that E1 was inconsistent with the experience requirements in other similar appointment processes, the evidence did not suggest that, for example, the E1 requirement was illogical, incoherent, or inserted for the improper reason of excluding him from this appointment process.

[29] This complaint addresses the experience qualification for the subject Regional Food Services Manager appointment process. The parties agree that the workplace was reorganized in 2014, three years prior to this appointment process. The Regional Food Services Manager position and the new food preparation and distribution system were then created within the respondent’s operation. This coincides with the period referred to in E1 and provides a reasoned foundation for the experience qualification and the time period to which it refers. As such, the evidence demonstrates a nexus between the position and the requirements of E1.

[30] Although the complainant referred to other appointment processes where a different experience qualification was used, without considerably more detail of the circumstances of those appointment processes and the exigencies of those workplaces, for example, I am not persuaded that they are sufficiently relevant to provide an evidentiary foundation that discharges the burden of proof or provides a basis for a finding of abuse of authority.

[31] The complainant described his circumstances and acknowledged that he did not have management experience in food services in the three years before the appointment process. As such, he did not meet E1.

[32] Section 30(2) of the PSEA defines merit in the context of an appointment. It provides that for an appointment to be made on the basis of merit, the appointee must meet the essential qualifications for the position. In this case, the complainant acknowledged that he did not meet those qualifications.

[33] The complainant argued that if the assessment board extended the time referred to in E1, he would be screened into the appointment process. That may very well be, but that does not necessarily establish that there was an abuse of authority. An abuse of authority involves an act, omission, or error that Parliament could not have envisaged as part of the discretion given to those with delegated staffing authority (see Tibbs at paras. 66 and 71; and, Agnew v. Deputy Minister of Fisheries and Oceans, 2018 FPSLREB 2 at para. 95). Again, it is the deputy head who establishes the essential qualifications for the work to be performed under s. 30(2)(a) of the PSEA, and it is for the complainant to establish that there was an abuse in the exercise of that authority. Having found that the adoption of E1 was consistent with the national generic statement of merit criteria, the complainant has not otherwise shown that there was any error by the assessment board to not extend that criterion.

[34] It remains that the complainant has not demonstrated that he met the requirements of E1. Correspondingly, he has not discharged the burden of proof to establish that the respondent abused its authority in the application of merit in screening his application from further consideration.

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

(The Order appears on the next page)

V. Order

[36] The complaint is dismissed.

September 14, 2022.

Joanne B. Archibald,

a panel of the Federal Public Sector

Labour Relations and Employment Board