Date: 20230303

File: 771-02-41707

 

Citation: 2023 FPSLREB 24

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

 

Sophie Langlois

Complainant

 

and

 

DEPUTY HEAD

(Department of Employment and Social Development)

 

Respondent

and

OTHER PARTIES

Indexed as

Langlois v. Deputy Head (Department of Employment and Social Development)

In the matter of a complaint of abuse of authority under section 77(1)(a) of the Public Service Employment Act

Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Francis Chaput, Canada Employment and Immigration Union

For the Respondent: Patrick Turcot, counsel

For the Public Service Commission: Louise Bard, analyst

Heard by videoconference,

January 23, 2023.

[FPSLREB Translation]

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Complaint before the Board

[1] Sophie Langlois (“the complainant”) made a complaint with the Federal Public Sector Labour Relations and Employment Board (“the Board”) against the deputy head of the Department of Employment and Social Development (“the respondent”). The complainant submits that there was an abuse of authority in how her application for a manager position (PM-06) was handled as part of the advertised appointment process 2018-CSD-IA-NHQ-19329.

[2] For the reasons that follow, the complaint is dismissed. The complainant did not establish that there was an abuse of authority in how her application was handled.

II. Summary of the evidence

[3] The complainant was a candidate in an appointment process for a manager position. She passed the screening stage. She then had to write an exam remotely (an at-home exam) that consisted of preparing a project using PowerPoint along with a briefing note about it. She passed that step and was invited to an interview.

[4] The complainant testified that when she arrived for the interview, she was placed in a room and given a document to read. She had 45 minutes to read it and to prepare notes for the interview.

[5] The document outlined the following merit criteria that would be assessed in the interview:

[Translation]

· Creating a vision and strategy

· Mobilizing people

· Obtaining results

· Collaborating with partners and stakeholders

· Ability to communicate effectively orally

 

[6] The document also set out the details on how the interview would be conducted and indicated that it would be divided into two distinct parts. The first was a presentation exercise, in which the candidate would present the project that had already been prepared. The candidate would have a copy of the project; so would the selection board members. It could be referred to during the presentation.

[7] The terms of the oral presentation were presented as follows:

[Translation]

...

As part of the at-home exercise, you prepared a PowerPoint presentation to share your vision and strategy for developing and implementing a groundbreaking work initiative during the 2019 Workplace Innovation Forum.

At this stage, we ask that you make your presentation to the selection board members. For the presentation’s purposes, consider that you have now been invited to present to the selection board, which is responsible for determining who will be invited to present at the workshop entitled, “Peer presentation: Workplace initiatives for a better future”. On that point:

Please note that a copy of your presentation was prepared for you and each selection board member, so that you may refer to it, and that your presentation will not be projected on a screen.

You will have fifteen (15) minutes to make your PowerPoint presentation. It is up to you to manage your time throughout that period. As such, your presentation should aim to define the future and draw the outline of a plan, if your initiative is chosen to be implemented. Be sure to communicate the context by considering different economic, social, and policy considerations. Take the opportunity to develop your ideas and proposed perspectives to create a convincing vision and obtain the members’ support.

...

[Emphasis in the original]

 

[8] After the oral presentation, the selection board members would ask two follow-up questions and another, separate question unrelated to the presentation exercise.

[9] Finally, the document stated that the “[translation] Creating a vision and strategy” criterion would be assessed based solely on the oral presentation, not the subsequent questions.

[10] The complainant testified that she focused primarily on the “[translation] Obtaining results” and “[translation] Mobilizing people” criteria in her presentation.

[11] She failed the interview, specifically for the “Creating a vision and strategy” criterion. The pass mark for the oral presentation was a mark of 3 (out of 5), and she received a 2.

[12] The interview took place before a board of three assessors, including Anne-Marie Valin, who testified at the hearing.

[13] According to the complainant, the interview board did not consider the content of her written presentation. In fact, she failed because she did not mention certain items from her project in the interview. However, several of those items were in her written presentation.

[14] When she learned that she had failed the interview, she requested an informal discussion. She met with Ms. Valin, who explained that there were gaps in her oral presentation; for example, she failed to include a pilot project. The complainant was dumbfounded — she had included a pilot project in her written project, of which the interview board had a copy. She did not understand why the interview board had not considered it.

[15] Ms. Valin explained that the assessment was based solely on the oral presentation and that therefore, the written part was not considered. She then confirmed that understanding with the appointment-process coordinator and shared that exchange with the complainant.

[16] At the hearing, Ms. Valin was prepared to acknowledge that the desired items had been in the written presentation. In fact, in her interview notes, she indicated that the complainant failed the first question because she left out too many details and added that many of the written presentation’s details could have strengthened the oral presentation.

[17] Ms. Valin explained that the assessment was the same for all candidates — they were to share their projects orally, to “[translation] create a vision”. She commented that the interview was probably an imperfect tool as an otherwise competent candidate could have failed due to a bad day or by not providing enough details. According to her, it is important to remember that for that question, all candidates were assessed based solely on their oral presentations. It would have been unfair to include the complainant’s written presentation in the assessment as that was not done for the other candidates.

III. The issue

[18] Was the fact that the selection board did not consider the complainant’s written presentation an abuse of authority?

IV. Summary of the arguments

A. For the complainant

[19] Abuse of authority, as set out in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8, is a question of degree. In that decision, the Public Service Staffing Tribunal (PSST), a Board predecessor, set out five categories of abuse of authority. In this case, the complainant believes that there were two types of abuse of authority, which were refusing to exercise discretion through keeping an open mind, and the decision that was based on insufficient information.

[20] The selection board simply refused to consider the complainant’s point of view, which was that she thought that her written PowerPoint presentation would be considered as she and the interview board had access to it during the oral presentation.

[21] In addition, by deciding that she did reach the pass mark even though the necessary items were in her written presentation, the interview board made a decision without important facts.

[22] According to the complainant, the expression “[translation] your PowerPoint presentation” was ambiguous. She was entitled to expect that her PowerPoint presentation at the interview consisted of both her oral communication and the PowerPoint document.

[23] In Bazinet v. Deputy Minister of Employment and Social Development, 2021 FPSLREB 82, the Board found that there was an abuse of authority because the selection board did not consider the contradictions that Ms. Bazinet raised at an informal discussion. It relied on faulty references and therefore on insufficient information when it reached its decision and refused to exercise its discretion to redo the assessment.

[24] In Brookfield v. Deputy Minister of Foreign Affairs and International Trade, 2011 PSST 25, the PSST found that there was an abuse of authority in the assessment of the complainant’s file as his experience was not assessed based on the file’s complete contents.

[25] In Agnew v. Deputy Minister of Fisheries and Oceans, 2018 FPSLREB 2, the Board found that the instructions had such a lack of clarity that it constituted an abuse of authority as it was more than a mere administrative error. In addition, the respondent in that case refused to review the assessment of Ms. Agnew’s candidacy, despite the assessment’s serious deficiencies.

[26] In Hammond v. Canada (Attorney General), 2009 FC 570, the Federal Court found that insufficient information about references and the PSST’s failure to review the situation made its decision that concluded that there was no abuse of authority unreasonable.

B. For the respondent

[27] According to the respondent, the instructions were clear. The candidates were to be assessed in the interview based on their oral presentations. The written presentation had already been assessed (and passed).

[28] Abuse of authority is a serious and reprehensible act. In Portree v. Deputy Head of Service Canada, 2006 PSST 14, the PSST stated that a candidate’s disagreement with an assigned mark could not constitute the basis of an abuse of authority.

[29] In Visca v. Deputy Minister of Justice, 2007 PSST 24, the PSST noted the considerable discretion given to managers when assessing merit criteria under s. 36 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the PSEA”), provided that the assessment is conducted the same way for all candidates. The PSST stated the following at paragraph 53 of that decision: “... a selection board may choose from a wide range of assessment tools and methods.”

V. Analysis

[30] The complainant alleges that the fact that the selection board did not consider her written presentation in its assessment constitutes an abuse of authority.

[31] The respondent replies that it was clear that the criteria that the complainant failed would be assessed as part of an oral presentation. According to it, she did not elaborate certain points enough and therefore did not demonstrate the desired competency.

[32] “Abuse of authority” is not defined in the PSEA other than stating that it includes bad faith and personal favouritism (s. 2(4)). The PSST and the Board have found that an abuse of authority must necessarily, by parallelism, be a serious and reprehensible act; a mere error or omission does not constitute an abuse of authority.

[33] In this case, the complainant alleges that the selection board’s decision to not consider responses in the written presentation was an abuse of authority because it made a decision based on insufficient information and refused to exercise its discretion to consider all relevant information.

[34] The decisions that the complainant cited to support her arguments do not apply to this case. The “Creating a vision and strategy” criterion was assessed through an oral presentation. It was not the screening stage, as in Brookfield, at which the entire file could have been used to measure experience, or a matter of resolving contradictions as with the references in Bazinet. Unlike in Agnew, there was no ambiguity or lack of clarity in the instructions that the candidates received. They were asked to orally present their projects, which had already been prepared in PowerPoint. The information in this case is not insufficient as it was in Hammond or Agnew. Instead, it was up to the selection board to choose an assessment tool, the oral interview, to assess a criterion, which was creating a vision and a strategy.

[35] Reasonable assessment terms applied to all candidates cannot constitute an abuse of authority.

[36] It was not abusive to wish to assess the candidates’ abilities to communicate their projects orally and convincingly. Therefore, it was not abusive to consider only the oral presentation at the interview as the written presentation had already been assessed.

[37] The deputy head (or a delegate) determines the assessment methods (s. 36 of the PSEA). In this case, the ability to create a vision was assessed orally, during the interview, as set out in the marking guide and assessment plan. Ms. Valin’s statement was uncontradicted that all candidates were assessed for that criteria based on their oral presentations.

[38] There is no ambiguity in the message that the candidates received. In the instructions before the interview, they were asked to present clear and convincing visions of their projects. Moreover, it was stated that their ability to create a vision would be assessed based solely on the presentation, not the follow-up questions.

[39] The complainant was unable to present a vision and strategy to the interview board’s satisfaction. She did not deny that some items might have been missing. She instead asserted that the selection board should have considered her written presentation.

[40] In my view, given the instructions and the conditions applied to all candidates, the selection board had no obligation to consider the written presentation during the interview as it had already been assessed. The purpose of an interview is to assess oral communication. I see no abuse in relying on oral communication to assess responses provided at the interview.

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

(The Order appears on the next page)

VI. Order

[42] The complaint is dismissed.

March 3, 2023.

FPSLREB Translation

Marie-Claire Perrault

a panel of the Federal Public Sector

Labour Relations and Employment Board