Effective December 31, 2005, the government introduced major changes to the legislation that organizes staffing in the federal public service. These changes increase the power of management in deciding who will be promoted and who will not. Unfortunately, the legislation also reduces the ability of CEIU members to challenge management decisions through formal recourse procedures. The union will develop alternative procedures for fairness in staffing, but as a first step members should familiarize themselves with the new staffing system.
The following questions and answers highlight the new staffing rules and the options members have for dealing with them. Further information is available through the CEIU staff representative responsible for your local.
Q: In the public service, promotions are to be based on merit. Have the new staffing rules changed this?
A: Merit is still supposed to decide who gets promoted, but the definition of merit has been changed in a major way.
Q: How has the definition of merit been changed?
A: Merit used to mean that the best qualified person was promoted. If you competed for a position and were the top-rated candidate, you got the job. Merit now means that the person promoted must be qualified for the work to be performed, but does not need to be the best qualified.
Q: How does management decide if you are qualified under the new rules?
A: It is complicated.
- First, you must meet the essential qualifications for the work to be performed.
- Second, you must meet any additional qualifications that management thinks would be useful for the work to be done or for the organization overall.
- Third, those additional qualifications apply to the work to be done both now and in the future. The same goes for the additional qualifications that would be an asset for the organization overall.
Q: Does anything else go into the decision about who management appoints?
A: Yes. Before making an appointment, management will consider any operational requirements and needs of the organization, current and future.
Q: So even if I meet the essential and additional qualifications, I may not get the job?
A: Correct. Management can choose someone who they think will better meet the operational requirements of the organization. It is all part of the new definition of merit.
Q: Can management consider only one person for an appointment?
A: Yes. The new rules are clear that management is not required to consider more than one person to satisfy the new definition of merit
Q: Under the new rules, how will management assess candidates on competitions?
A: First, the new legislation does not use the term “competition”. Instead, it speaks of an “appointment process”. As for how management will assess those who participate in an appointment process, the legislation allows management to use “…any assessment method, such as a review of past performance and accomplishments, interviews and examinations…” In other words, management has wide discretion in deciding how to assess those who participate in an appointment process.
Q: What can I do if I don’t get the job I applied for?
A: If the appointment process was “external” (what used to be known as an “open” competition), the Public Service Commission (PSC) can carry out an investigation.
Q: What will the PSC look at in its investigation?
A: The PSC will consider if the appointment was based on merit and if there was an error, omission or improper conduct that affected the outcome of the appointment process.
Q: Are there any other appointment processes that the PSC can investigate?
A: Yes. The PSC can investigate when it has reason to believe that an appointment was not free from political influence or fraud.
Q: Is there anything else I can do if I don’t get the job I applied for?
A: Yes. If the appointment process was “internal” (formerly known as a “closed” competition), you can make a complaint to the Public Service Staffing Tribunal (PSST). Under the old legislation, you would file an appeal that would be heard by a Public Service Commission Appeal Board. With the new rules, you file a complaint that is heard by the PSST.
Q: What will the Tribunal look at?
A: Unfortunately, not much. Unlike Appeal Boards that could consider if the selection process violated the merit principle, the Tribunal can only look at whether an “abuse of authority” resulted in you not being appointed, or if you were not assessed in the official language of your choice.
Q: What does “abuse of authority” mean?
A: “Abuse of authority” has no simple definition. In very general terms, abuse of authority deals with whether an action is legitimate or not. A lack of transparency has been found to be an abuse of authority where the reasons given for a decision were not consistent with what was actually done. Overall, an abuse of authority is understood as a serious matter that has produced a flagrant injustice.
The meaning of abuse of authority will become clearer when we have a number of decisions from the new Tribunal to review. But what can be said now is that proving an abuse of authority is a hard test to meet.
Q: Can management still deploy an employee into a job instead of appointing them?
A: Yes, management can still use deployment. But a deployment cannot be used to promote someone or change them from term to indeterminate status. In addition, you cannot be deployed without your consent unless an agreement to being deployed is a condition of employment of your current job.
Q: How do I challenge a deployment?
A: In the past, you filed a complaint. Now you must file a grievance.
Staffing will now be done in a radically new way. It will take time to become familiar with the new rules and to develop effective ways of challenging them. The old ways of challenging management’s staffing practices, usually through appeals, gave us very few legal rights, but the new recourse procedures give us even fewer. Management has much greater discretion in how it promotes staff, and our job will be to build greater fairness into how they exercise that discretion.