FPSLREB Decisions
Decision Information
The respondent made a motion to dismiss the complaint on the grounds that the complainant did not enjoy a right of recourse because she was appointed to a director-level position from the same appointment process that was the subject of this complaint – it argued that she was not an unsuccessful candidate – it had the burden of proof since it made the motion – the job opportunity advertisement (“JOA”) stated that the process was for “Director (various positions)” at the AS-06, PM-05, and PM-06 levels at several locations across Canada – the JOA also indicated several appointment tenures and stated that the intent was to create a pool of pre-qualified or fully qualified candidates to staff similar or identical positions with respect to three streams – the position to which the appointee was appointed is named “Director, CRMS Project, Courts and Registry System” (“the CRMS position”) – the complainant had expressed interest in the CRMS position before she was appointed as a director – she argued that although she was appointed to a position from the same appointment process, she was an unsuccessful candidate for the specific position in the appointment under review – she also argued that that appointment was to a completely different position than the one she accepted – she indicated that before accepting her director position, she was told that she would not be precluded from being considered for the CRMS position, which was discussed with her manager – she also submitted that there are significant differences between the director-of-operations position and the CRMS position – she also had an informal discussion with the respondent once the Notice of Consideration was posted – the Board distinguished Hagerty v. President of the Canada Border Services Agency, 2007 PSST 36, and indicated that the key line in that decision is the finding at paragraph 12 that the “… right to file a complaint is determined in the context of each notification, not within the overall context of an appointment process” – the Board indicated that an appointment process can serve to staff similar positions and at times different positions – therefore, subject to the circumstances of each case, this should not preclude a candidate who was appointed to one position from that process from exercising their rights with respect to a subsequent appointment or proposal of appointment arising from the same appointment process – consequently, the Board found that based on the facts, which the respondent did not contest, the complainant was an unsuccessful candidate for the CRMS position to which the appointee was appointed through the appointment process – as such, the complainant was found to have standing before the Board, and her complaint will proceed.
Motion denied.
Decision Content
Date: 20230210
File: 771-02-44376
Citation: 2023 FPSLREB 13
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Between
Maggie Lau
Complainant
and
Chief Administrator of the CourtS Administration SERVICE
Indexed as
Lau v. Chief Administrator of the Courts Administration Service
Before: David Orfald, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Herself
For the Respondent: Richard Vallée
For the Public Service Commission: Louise Bard, senior analyst
REASONS FOR DECISION
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I.
Complaint before the Board
[1] This is a decision about a motion made by the respondent (the Chief Administrator of the Courts Administration Service) to dismiss this complaint for lack of jurisdiction.
[2] The complainant, Maggie Lau, made this complaint on March 16, 2022, about the appointment of Denise Heeney (“the appointee”) from appointment process 20-CAJ-IA-058 to a director - stream 2 (PM-06) position at the Courts Administration Service in Toronto, Ontario.
[3] On April 5, 2022, the respondent made its motion to dismiss the complaint on the grounds that the complainant does not enjoy a right of recourse because she was appointed to a director-level position from the same appointment process that is the subject of this complaint. The respondent argued that as the complainant was not an unsuccessful candidate from that process, she had no right to make this complaint, and the Federal Public Sector Labour Relations and Employment Board (“the Board”) cannot hear it.
[4] The Public Service Commission (PSC) also took the position that if the complainant was appointed to a position from the same internal appointment process, she would not be considered an unsuccessful candidate with a right of recourse.
[5] On June 10, 2022, the Board issued a letter decision stating that it could not rule on the motion on the basis of the information provided by the parties. It requested additional information from the respondent about the appointment process, including the initiating advertisement, a description of the different streams in the appointment process, and information about the streams to which the complainant applied. It also invited any additional submissions from the respondent. Following its receipt of that information, the Board invited further submissions from the complainant, the PSC, and the appointee, and finally, it provided an opportunity for a rebuttal by the respondent.
[6] On June 24, 2022, the respondent provided the additional information requested by the Board but no additional submissions.
[7] On July 14, 2022, the complainant provided her additional submissions. No further submissions were made by the PSC, no submissions were made by the appointee, and no further submissions were made by the respondent.
[8] Based on the information and submissions in front of me and for the reasons that follow, I conclude that the complainant does have a right of recourse with respect to the appointment of the appointee. The motion to dismiss is denied, and the timelines in the file are reactivated.
II.
Background
[9] The respondent initiated an advertised internal appointment process (20-CAJ-IA-058) with a deadline for application of February 12, 2020.
[10] The job opportunity advertisement stated that the process was for “Director (various positions)” at the AS-06, PM-05, and PM-06 levels at several locations across Canada. The advertisement indicated various tenure of the appointments, such as acting, indeterminate, secondment, assignment, deployment, or specified period.
[11] The job opportunity advertisement indicated that the intent of the process was to create a pool of pre-qualified or fully qualified candidates to staff similar or identical positions with respect to the following three streams:
· stream 1 - PM-05, director, local office;
· stream 2 - PM-06, director, operations; and
· stream 3 - AS-06, director, management services.
[12] The complainant successfully completed all stages of the assessment and was placed in the pool of qualified candidates. The respondent submitted that she applied to both streams 2 and 3.
[13] On March 19, 2021, a “Notice of Appointment or Proposal of Appointment” (NAPA) was published, stating that the complainant had been given a promotional appointment to an indeterminate position as a result of this advertised process. On the same day, the complainant was provided (and accepted) a letter of offer to a position called “Director, Operations I”, position number 00027778, at the PM-06 level in the Toronto Regional Office, General Registry, of the respondent, effective March 29, 2021. This was an appointment from stream 2 of the process.
[14] According to the complainant, and not disputed by the respondent, the position to which the appointee was appointed is named Director, CRMS Project, Courts and Registry Management System, (“the CRMS position”).
[15] The complainant submitted that she first expressed interest in the CRMS position in November 2020, before she was appointed as a director in March of 2021. She submitted that she reached out to the hiring manager several times to express her continued interest in the position after she was appointed as a director of operations.
[16] On June 21, 2021, a “Notice of Consideration” (NOC) was posted, stating that the respondent was considering the appointment of the appointee. The complainant requested an informal discussion relating to the proposed appointment. She submitted that the informal discussion was granted to discuss why she was eliminated from consideration for the position. She submitted that she stated her intent to make a complaint in the future and that she was never told that she could not make a complaint because she had been a successful candidate for another director position.
[17] On March 2, 2022, a NAPA was posted for the appointment of the appointee from the same above-noted process to a director - stream 2 position at the PM-06 level in Toronto. This complaint was made on March 16, 2022.
III.
Summary of the arguments
[18] The respondent made a motion to dismiss the complaint on the basis that the complainant does not have a right of complaint to the Board.
[19] The respondent argued that pursuant to s. 77(2)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the PSEA”), when an appointment is made or proposed, an unsuccessful candidate in the area of selection may make a complaint to the Board.
[20] Since the complainant had been appointed from the same appointment process a year before the appointment at issue, she cannot claim that she is an unsuccessful candidate, the respondent argued. She cannot complain that she was not appointed or proposed for appointment as a result of the appointment process. As noted in Hagerty v. President of the Canada Border Services Agency, 2007 PSST 36 at para. 13, once qualified candidates in an advertised internal appointment process have been appointed or proposed for appointment, they are no longer considered unsuccessful candidates.
[21] Both the complainant and the appointee were appointed to positions in stream 2 of the appointment process at issue, the respondent pointed out. It argued that since the complainant was a successful candidate in the appointment process at issue, she did not enjoy a right of complaint about this appointment, and the Board should summarily dismiss the complaint.
[22] The complainant argued that although she was appointed to a position from the same appointment process, she was an unsuccessful candidate for the specific position in the appointment under review. As an unsuccessful candidate for that position, she had a corresponding right to make a complaint. She argued that the right to make a complaint is created by the notification of an appointment (see Hagerty, at para. 12, and Czarnecki v. Deputy Head of Service Canada, 2007 PSST 1).
[23] The complainant argued that the appointment under review was to a completely different position than the one she accepted. She submitted that before accepting her director position, she was told that she would not be precluded from being considered for the CRMS position. She stated that she accepted her appointment while she waited for the finalization of the position she “was truly interested in”, and this was discussed with the hiring manager.
[24] The complainant argued that she could not make a complaint in anticipation of an appointment or a proposed appointment. She also argued that it would not be logical or reasonable to expect a candidate to decline an offer before him or her just to maintain the right of complaint for future appointments that may or may not happen. The PSEA is written in such a way that complaints can be made only by those with a personal interest in the appointment; see Visca v. Deputy Minister of Justice, 2006 PSST 16. She argued that she maintained a personal interest in the CRMS position.
[25] It should not be assumed that candidates already appointed from a pool would not be considered for future appointments from the same appointment process, the complainant argued. She claimed that candidates who have already accepted positions through the pool have received emails soliciting their interest in appointments to other regional offices and asking them to confirm if they wish to remain in the pool of qualified candidates.
[26] The complainant argued that the respondent treated her as an unsuccessful candidate when it agreed to meet for an informal discussion after the posting of the NOC for this appointment in June 2021.
[27] The respondent indicated that both appointments were made from stream 2, and both positions are based on the same job description. The appointee’s position is a newly created position that does not currently have employees reporting to that position, but the intention is to add subordinate positions once the CRMS project is launched.
[28] The complainant submitted that there are significant differences between the director of operations position and the director of the CRMS project. The former is responsible for a large unit of staff, managing day-to-day operations. It involves significant responsibility for human and financial resources. Its scope covers the Federal Court of Appeal, the Court Martial Court of Appeal, and the Federal Court. On the other hand, the director of the CRMS project does not oversee a unit and is not responsible for the management of human and financial resources. She submitted an organizational chart reflecting those differences. She also said the scope of the CRMS position covers only the Federal Court, and it reports directly to headquarters in Ottawa, Ontario.
[29] As noted, the PSC is of the view that if the internal appointment process that is the subject of this complaint was an advertised one, and that the complainant was appointed to a position from the same appointment process a year before the appointment that is the subject of this complaint, then the complainant would not be considered an unsuccessful candidate, and would not be in the area of recourse. As such, it said, the complainant would not have a right of recourse to the Board.
IV.
Reasons
[30] The respondent brought the motion to dismiss; therefore, it has the burden of proving that the complainant is not an unsuccessful candidate in the internal advertised appointment process that is at issue in this complaint.
[31] The right to make a complaint to the Board is set out at ss. 77(1) and (2) of the PSEA as follows:
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[32] Breaking this down, what s. 77(1) says is that “[w]hen the Commission has made or proposed an appointment in an internal appointment process …”, a person may make a complaint if “… he or she was not appointed or proposed for appointment …” (for the reasons set out at ss. 77(1)(a) to (c)). The further condition placed on the right to make a complaint is set out in s. 77(2), which says that a person is in the area of recourse if they are “… an unsuccessful candidate in the area of selection …”.
[33] The PSEA does not define the term “an unsuccessful candidate”. According to Casper v. Deputy Minister of Citizenship and Immigration, 2016 PSLREB 49, at para. 18, “… to be an unsuccessful candidate, a complainant must have been a candidate in the advertised appointment process at issue ….” It is not disputed that the complainant was a candidate in this appointment process.
[34] In s. 2(1) of the PSEA, the term “internal appointment process” is defined as “… a process for making one or more appointments in which only persons employed in the public service may be considered.”
[35] It is clear that in this matter, the complainant participated in an internal appointment process, from which she was successfully appointed to a position. She was one of at least two such candidates appointed to a position as a result of the process (herself and the appointee, and perhaps others).
[36] But does the fact that she was a successful candidate for one position, as a result of the internal appointment process conducted by the respondent, mean that she has no right of recourse in relation to other appointments made as a result of that process?
[37] It is clear that the right to make a complaint is triggered by the making of an appointment from an internal appointment process. I agree with the former Public Service Staffing Tribunal (“the Tribunal”), which found as follows in Hagerty that each notification triggers a right of complaint (at paragraph 12):
12 With each notification of one or more appointments or proposed appointments, there is a corresponding right to file a complaint to the Tribunal under the PSEA. Therefore a complainant’s right to file a complaint is determined in the context of each notification, not within the overall context of an appointment process.
[Emphasis added]
[38] In Hagerty, an appointment process resulted in three rounds of appointments, made March 13, 2007 (six persons), March 22, 2007 (two or more persons), and June 6, 2007 (five persons). The complaint was filed following the first round of notification of March 13, 2007. The complainant in that matter was appointed in the third round. The respondent in that matter sought to have his complaint dismissed on the basis that he was not an unsuccessful candidate. The Tribunal found that the complainant was an unsuccessful candidate when the first notification was issued and dismissed the respondent’s motion. It also found, “The complainant was not entitled to complain following the third notification since he was proposed for appointment and, therefore, was not an unsuccessful candidate” (at paragraph 13).
[39] The respondent argued that this ruling by the Tribunal answered the question of whether once someone is appointed from a process, they may not make a complaint about further appointments resulting from that process.
[40] I do not agree with that interpretation of Hagerty. That case can be distinguished from the present case. The question with which the Tribunal was seized was whether the complainant, who filed his complaint prior to him being appointed later in the process, had a right to complain about the first round of appointments. The complainant was not complaining about an appointment made after he had been appointed. Furthermore, the decision does not mention if there were different streams or if the positions at issue were different. It is logical that the complainant in Hagerty could not complain about the notice of appointment in which he, himself, was appointed. But in my view that does not rule out the potential for making a complaint with respect to future appointments, depending on the circumstances.
[41] For me, the key line in Hagerty is the finding (at paragraph 12) that the “… right to file a complaint is determined in the context of each notification, not within the overall context of an appointment process.”
[42] In this matter, we have an appointment process from which a pool was created and from which many positions could be filled. The PSEA does not address the use of pools. In this case, the pool was being used over the course of nearly two years (from February 2020 to March 2022, at least), to fill a wide variety of positions of different tenure (acting, indeterminate, assignment, deployment and specified period) across three streams and at different groups and levels: PM-05, PM-06, and AS-06.
[43] The respondent and the PSC argued that once a person is a successful candidate for a position via the appointment process, she or he loses the right of recourse under the PSEA. Hypothetically, this would mean that someone who was appointed to a PM-05 position on an acting basis via this pool would not have the right of recourse for subsequent appointments made on an indeterminate basis or at a higher group and level. In my view, this belief circumvents the recourse rights of those individuals, who may have a legitimate interest in being considered for future appointments from the pool.
[44] In this case, the complainant made clear claims suggesting that the respondent used the pool to make a series of appointments. She said that the respondent would reach out to qualified candidates in the pool, and those previously appointed from the pool, when it came time to fill another position covered by the pool. More particularly, the complainant stated clearly that the CRMS position was her preferred job, that she expressed her interest in that position before and after she was appointed to the director of operations position, and that the respondent considered her for the position but opted to appoint the appointee instead. The respondent did not refute these facts.
[45] She also provided clear arguments that even though the two positions in question were from the same stream, they were very different positions. One involved a significant degree of human resources and team management work, and the other involved the management of a specific project. One managed a regional office, and the other reported directly to the respondent’s headquarters.
[46] The complainant also noted that the hiring manager for the respondent held an informal discussion with her following the June 21, 2021, publication of the NOC. She claimed that the respondent treated her in that discussion as an unsuccessful candidate. She said that she indicated at the time that she would make a complaint if it proceeded with the appointment being considered. She argued that the respondent did not inform her at that time that she would have no right of complaint, and it then held off making the actual appointment for some time (until March of 2022).
[47] I do not place weight on the fact that the respondent did not inform the complainant in June of 2021 that it would oppose her ability to make a complaint about the appointment of the appointee.
[48] That being said, the entire premise of the informal discussion is that one candidate is being considered for an appointment and that others have been eliminated. This is set out at s. 47 of the PSEA, which reads as follows:
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[49] I agree with the complainant that the PSEA is written in such a way that only persons with a personal interest in an appointment may make a complaint. Those persons outside the area of selection are not able to make a complaint. In the context of an advertised appointment process, those persons who did not apply may not complain. People cannot make complaints on behalf of others.
[50] In this case, the complainant demonstrated that she had an interest in the CRMS position to which the appointee was appointed. She said that she made her interest known to the respondent several times. She requested an informal discussion, and one was held. She was able to clearly distinguish between the nature of the director of operations position and the CRMS position and to demonstrate that the two positions are different in nature.
[51] An appointment process can serve to staff similar positions, and at times different positions. I am of the view, that subject to the circumstances of each case, this should not preclude a candidate that was appointed to one position from that process from exercising their rights regarding a subsequent appointment or proposal of appointment stemming from the same appointment process.
[52] Given these facts, which were not contested by the respondent, I find that the complainant was an unsuccessful candidate in relation to the CRMS position to which the appointee was appointed in this appointment process. She applied to the process, and she was not appointed.
[53] I therefore find that the respondent did not discharge its burden of proof in this motion since it did not establish that the complainant is not an unsuccessful candidate. As such, the complainant has standing before the Board with respect to this complaint and her complaint will proceed under the PSEA.
[54] The timelines in this complaint were suspended pending a decision on this motion. As this decision is now issued, the timelines can be reactivated. The next step in the complaint process will be the completion of the exchange of information period by the complainant and the respondent.
[55] All parties should consult the Public Service Staffing Complaints Regulations (SOR/2006-6), and the Board’s Procedural Guide for Staffing Complaints to calculate the amended deadlines and ensure that they make the necessary adjustments to the timelines applicable to them.
[56] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V.
Order
[57] The respondent’s motion to summarily dismiss this complaint is denied.
[58] The timelines are reactivated; therefore, the complainant and the respondent have until March 7, 2023, to complete the exchange of information period.
February 10, 2023.
David Orfald,
a panel of the Federal Public Sector
Labour Relations and Employment Board