FPSLREB Decisions
Decision Information
The complainants made complaints under s. 77(1)(b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13), alleging that the respondent abused its authority in the choice of a non-advertised appointment process to staff a WP-04 position – the complainants, who were unilingual English, alleged that the respondent changed the linguistic profile of the position to exclude them from consideration – one of the complainants also alleged that it was inappropriate for the hiring manager to consider the appointee’s work-location preference – the respondent denied that it abused its authority – the Board found that the complainants failed to show that the process had been tainted by something improper – the choice between an advertised and a non-advertised appointment process alone was not improper – the modification of the language profile also fell squarely within the respondent’s authority to establish the qualifications for a position – the evidence showed that the bilingual linguistic profile addressed an anticipated organizational need – the evidence also showed that the appointee’s preferred work location was only one of several reasons cited in the hiring manager’s rationale, which included the appointee’s performance and language ability and the organization’s future needs – as a result, the Board found that there was no abuse of authority in the choice of process.
Complaints dismissed.
Decision Content
Date: 20221228
Files: 771-02-39416 and 39460
Citation: 2022 FPSLREB 106
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Between
Timothy Hay and Tara Harrison
Complainants
and
Deputy Head
(Correctional Service of Canada)
and
OTHER PARTIES
Indexed as
Hay and Harrison v. Deputy Head (Correctional Service of Canada)
Before: Joanne B. Archibald, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainants: Frank Janz
For the Respondent: Marie-France Boyer
For the Public Service Commission: Alain Jutras
REASONS FOR DECISION
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I.
Introduction
[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 complaints.
[4] For the following reasons, the complaints are dismissed.
II.
Summary of the evidence
[5] Documents provided during the hearing show that Nicole Smith, the hiring manager for the respondent’s Saint John parole office (“the hiring manager”), considered Frederic Roy (“the appointee”) for appointment to an English-only PO position in that office in April 2018. At that time, he was working as a bilingual PO at the CSC’s Springhill Institution (“Springhill”) in Springhill, Nova Scotia. He lived in Saint John and preferred to find a position there. The hiring manager’s written comments indicate that she anticipated appointing him to a bilingual position when the current bilingual PO deployed to a position outside the region.
[6] A further document shows the approval on October 15, 2018, for a change to the PO position from English to a bilingual linguistic profile (CCC/CCC). The rationale stated that the linguistic profile change provided “… flexibility when dealing with the preferred language of choice of our clients being supervised at the Saint John Parole Office and the residents at the CCC when bilingual Parole Officer is absent.”
[7] On November 15, 2018, the respondent posted a “Notification of Appointment or Proposal of Appointment” to announce the appointee’s indeterminate appointment to the PO position and provide information concerning the recourse process.
[8] On November 22 and 30, 2018, the complainants submitted their complaints to the Board. They alleged that the language profile of the PO position, formerly English only, was changed to exclude them from consideration. Earlier in the complaint process, the complainants raised many other allegations including bias and improper administration of a priority. However, during the hearing, those allegations were not advanced and the hearing proceeded based solely on the argument concerning the language profile selected for this non-advertised appointment.
[9] The parties agree that both complainants are unilingual English speaking.
[10] Mr. Hay testified that he joined CSC in 2016. In 2017, he accepted an indeterminate appointment in Regina, Saskatchewan. For personal reasons, he elected to return to Saint John in 2018.
[11] Mr. Hay stated that in March 2018, he emailed the hiring manager concerning a position in Saint John when he returned from Regina. He renewed the conversation in September 2018 and learned that there would be a vacancy but that it would be filled locally.
[12] In October 2018, Mr. Hay arrived in Saint John from Regina without a position to assume. He then became a spousal relocation priority as set out in s. 9 of the Public Service Employment Regulations (SOR/2005-334).
[13] Mr. Hay recalled that during the period of his priority entitlement, he was contacted about a medical adjudicator position in Prince Edward Island and a PO position at Springhill. While he preferred to work in Saint John, he accepted the position at Springhill and returned to employment in February 2019.
[14] Mr. Hay knew that unilingual English positions did not come up very often and that when they did, they were more likely at Springhill than in Saint John. He testified that he felt that the language profile of the PO position was changed to bilingual to avoid employing him in Saint John. In his view, the requirement for bilingual service did not merit a bilingual PO position.
[15] Mr. Hay testified that he contacted the hiring manager when he learned of the appointee’s appointment to the Saint John parole office. She told him that it formed part of a succession plan relative to the respondent’s need for bilingual capacity.
[16] Ms. Harrison testified that she commenced employment with the respondent at Springhill in 2007 as a correctional officer. She first acted as a PO in 2011 and continued to accept acting appointments whenever they were offered. She was also in a qualified pool of candidates for a unilingual English PO position.
[17] Ms. Harrison stated that the appointee’s indeterminate appointment to a bilingual position upset her. She stated that the PO position was formerly unilingual English and she had occupied it previously on an acting basis. The hiring manager also told her that the appointee preferred to work in Saint John. Ms. Harrison understood that one justification for the change of language profile was an employee’s right to be supervised in the language of their choice, but the PO position was not supervisory, so this made no sense to her. Someone told Ms. Harrison that there were only two French-speaking offenders in Saint John.
[18] When Mr. Hay later accepted an indeterminate PO position at Springhill, Ms. Harrison saw her only option as taking an indeterminate position in Kentville, Nova Scotia.
[19] The respondent called no witnesses.
III.
Summary of the arguments
A.
For the complainants
[20] Mr. Hay argued that the respondent abused its authority in the choice of a non-advertised appointment process by changing the language profile of the PO position several weeks after it knew of his spousal relocation priority. This action eliminated him from consideration due to his official language proficiency of English only. He easily could have filled a unilingual English position but received no consideration at all.
[21] Ms. Harrison submitted that the respondent considered the appointee’s work location preference in his selection for the PO position, which was an improper justification for the appointment.
B.
For the respondent
[22] The respondent argued that s. 33 of the PSEA gave it the sole discretion to choose an advertised or a non-advertised appointment process and that there was no preference for one over the other.
[23] The respondent has broad discretion to establish the necessary qualifications for a position, including the linguistic profile.
[24] Further, the complainants presented no concrete evidence and only their perception of injustice, which did not meet the threshold to prove their case.
IV.
Reasons
[25] The complainants were interested in an indeterminate PO position at the Saint John parole office. When notified of the appointee’s appointment to the PO position, they were understandably disappointed. They recognized that they did not meet the linguistic profile of the PO position to which he was appointed, and they questioned the appointment. This led them to initiate complaints about the choice of a non-advertised appointment process.
[26] Section 77(1)(b) of the PSEA provides as follows:
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[27] The burden of proving abuse of authority rested with the complainants. (See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8.) At s. 2(4), the PSEA provides that abuse of authority includes bad faith and personal favouritism.
[28] The complainants alleged an abuse of authority in the choice of a non-advertised appointment process. Section 33 of the PSEA addresses the choice between an advertised and a non-advertised appointment process:
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[29] The Board and the predecessor Public Service Staffing Tribunal have been equally clear in stating that there is no preference in law between an advertised and a non-advertised appointment. (See, for example, Jarvo v. Deputy Minister of National Defence, 2011 PSST 6 at para. 25.) To succeed with a complaint of abuse of authority in the choice of appointment process, there must be evidence to demonstrate that the actual choice of process was itself an abuse of authority; that is, it was tainted by something improper.
[30] The evidence does not establish that the respondent’s action to proceed with a non-advertised appointment approached the threshold of an abuse of authority. Rather, the documents presented show that the appointee was considered for the PO position as early as April 2018, when the hiring manager observed that his bilingual ability would address an anticipated organizational need. The documents also show that she then appointed him to a bilingual PO position when one became available.
[31] As for any question of whether the change to the PO position’s linguistic profile constituted an abuse of authority in the choice of process, the documents of April 2018 and October 2018 set out the respondent’s focus on strengthening its bilingual capacity for its clients when a bilingual PO was absent or after the anticipated departure of a bilingual PO deployed from the region.
[32] The establishment of the language qualification fell squarely within the respondent’s authority to establish qualifications, including official language proficiency, for a position pursuant to s. 30(2) of the PSEA. (See Vani v. Chief Statistician of Canada, 2008 PSST 29 at para. 51.)
[33] The complainants questioned the need for a bilingual PO and indicated that they had heard that the need was low. However, without more, their impression is not sufficient to persuade me that the change to the PO position’s language profile was pretextual or done to exclude them from eligibility for it. Proof would be required to demonstrate that the respondent created a qualification that was not grounded in the needs of its organization.
[34] The complainants also suggested that the choice of a non-advertised process was tainted by the appointee’s wish to work in Saint John rather than in Springhill.
[35] While the appointee’s preferred work location was mentioned in the rationale for his selection in April 2018, it is one of several comments that the hiring manager made about his suitability for the PO position, including a positive performance appraisal, language ability, and the future needs of the organization.
[36] Viewed in the entire context of all of these considerations, I do not accept that the appointee’s declared work location preference unduly influenced the choice of a non-advertised process.
[37] Accordingly, I find that the respondent did not abuse its authority in the choice of a non-advertised appointment process.
[38] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V.
Order
[39] The complaints are dismissed.
Joanne B. Archibald,
a panel of the Federal Public Sector
Labour Relations and Employment Board