Canada Employment and Immigration Union - http://ceiu-seic.ca/en/staffing/psst-final-decisions/
July 15, 2008

PSST Final Decisions

Tibbs – DND – File 2006-0015
Abuse of authority – categories defined by PSST – improper intent not required

Tibbs filed a complaint against the appointment of a Production Manager at the Department of National Defence. She alleged that the selection board abused its authority by being very lenient in assessing the successful candidate and very strict in assessing her. Specifically, she alleged that the successful candidate did not meet two of the essential qualifications for the position and that the selection board abused its authority in deciding to screen her out of the process.

The Tribunal ruled that the burden of proof with respect to complaints before it lies with the complainant. The Tribunal argued that, if the onus lay with the respondent, it will signify a presumption of abuse in all appointments "which without a doubt is not what Parliament intended". While the PSC argued that the standard of proof ought to "beyond a doubt", the Tribunal rejected this and concluded that the standard of proof was the civil standard of ‘on the balance of probabilities’.

The Tribunal, as this was its first decision, discussed the meaning of abuse of authority (as it is not defined in the Act). Rather than try to fix a static meaning to the expression, the Tribunal looked at the overall scheme of the Act.

The preamble of the Act gives to the managers considerable discretion when it comes to staffing matters, particularly when it comes to finding the "right fit". However, the PSEA does not allow for absolute discretion as recourse mechanisms have been established.

The Tribunal concludes that much more is required than mere errors or omissions to constitute abuse of authority. It will always include improper conduct. The Tribunal then outlines 5 categories of abuse:

* When a delegate exercises his/her/its discretion with an improper intention in mind (including acting for an unauthorized purpose, in bad faith, or on irrelevant considerations)
* When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters)
* When there is an improper result (including unreasonable, discriminatory, or retroactive administrative actions)
* When the delegate exercises discretion on an erroneous view of the law
* When a delegate refuses to exercise his/her/its discretion by adopting a policy which fetters the ability to consider individual cases with an open mind

The Tribunal rejected the PSC’s argument that abuse of authority required improper intent stating that such a view is contrary to the will of Parliament.

The Tribunal then applied these criteria to the allegations of the complainant and concluded that she had not proven, on the balance of probabilities, that an abuse of authority had occurred.

Schellenberg & Nye – DND – Files 2006-12 & 13
Jurisdiction/acting appointments – acting appointments begun under old Act, therefore no jurisdiction

Schellenberg and Nye filed complaints about a non-advertised acting appointment in National Defence. The employer argued that the Tribunal did not have jurisdiction to hear the complaints.

They made two arguments:

a) the acting appointments were for less than 4 months and therefore excluded from recourse under s. 77 of the PSEA..

b) if the Tribunal found that the acting began before Jan 1, 2006, then the new PSEA is not applicable and the Tribunal does not have jurisdiction.

The Tribunal found that the individual appointed had been assigned the additional duties in 2005 and therefore the acting appointment began at that time – and therefore fell under the old Act.

As a result, the Tribunal declined jurisdiction.

Parsons and Carey – Service Canada – File 2006-0062 and 0063
Acting appointments – definition of a ‘month’ – no jurisdiction over acting appointments of less than 4 months

These complaints concerned acting appointments which were made for periods of less than 4 months. The Tribunal refused to take jurisdiction since section 14 of the Regulations specifically excludes acting appointments of less than 4 months from any recourse under the PSEA.

The Tribunal also ruled that, while the PSEA and PSER do not define ‘month’, they would regard it being "a period of time between the same dates in successive calendar months" (as per the Canadian Oxford Dictionary and the Dictionary of Canadian Law).

Portree – Service Canada – File 2006-0021
Abuse of authority – need to adduce evidence through documentation and/or testimony – PSST’s role is not to re-assess candidate

The complainant alleged that the assessment board abused its authority in its application of the merit criteria to her candidacy.

The complainant essentially objected to the assessment of her qualifications and to the qualifications of the successful candidates which was carried out by the assessment.

The PSC argued that the 5 categories of abuse outlined in Tibbs were not applicable to the PSEA and would, in fact, undermine the system of accountability envisioned by Parliament. Tibbs outlines abuses of discretion, not of authority. The PSC concluded by reiterating that, in its view, "abuse of authority does not include ‘errors or omissions’ but will include some form of improper conduct which is associated with intentional wrongdoing" The Tribunal rejected this view re-stating the position it took in Tibbs.

The Tribunal tells us that mere error, omission or improper conduct is not enough to justify their intervention. The complainant must establish, through evidence (usually through testimony with supporting documents), that an abuse of authority has occurred. The Tribunal’s role is not to reassess a complainant’s marks on a given answer simply because the complainant does not agree with the decision of the assessment board.

While the Tribunal provided some advice to representatives about the conduct of their case when it said "It would seem prudent in most cases for the complainant to start his or her case by testifying as to the circumstances that they believe constitute an abuse of authority, as well as submitting documentary evidence to support their case. At an oral hearing, a complainant must present evidence, usually through a combination of his or her testimony, the testimony of witnesses, and supporting documents, to prove, on a balance of probabilities, the facts necessary to support a conclusion by the Tribunal that an abuse of authority has occurred", it did not reject the allegations on that basis but rather on the basis that "almost no evidence was provided to substantiate her complaint".

According to the Tribunal, the selection board is in the best position to decide if they have sufficient information unless there is some compelling evidence to the contrary.

In Portree, we see the Tribunal clearly telling us that it is not interested in the assessment of candidates unless that assessment is clearly linked to the categories of abuse outlined in Tibbs.

Casper – CIC – Files 2006-0121 and 125
Extension of time limits – onus lies with complainant to explain exceptional circumstances

The member filed complaints about 2 acting appointments and requested an extension of the time limits for filing. Her complaints were filed 2 and 6 days after the respective deadlines.

The member argued that there had been an agreement with the local management concerning the posting of staffing notifications at the Joint Consultation Committee. The agreement was made in April of 2006. She was unable to find these appointments in the places agreed to at the Joint Consultation Committee until after the deadline had passed. She also argued she was unaware that the time limit was 15 calendar days, not 15 working days.

The department argued that they had posted the notices on the Publiservice website. They had also issued an e-mail to all staff in June of 2006 stating that staffing notices would only be posted on Publiservice and not as previously agreed.

The onus for providing reasons establishing ‘extraordinary circumstances’ lies with the complainant.

The Tribunal ruled that "the principle of past practice is a well established one in labour law. The case law is clear on the subject. A simple notice from one party is sufficient to terminate the practice. This notice can be a unilateral one and does not require the other party to agree." Therefore the complainant had simply looked in the wrong place even though she had been informed of where such notices would be posted.

As for the argument that she was not aware the time limit was 15 calendar, and not working, days, the Tribunal dismissed this stating that her failure to be aware of the procedures of the Tribunal did not qualify as an exceptional circumstance.

Charlton – DND – File 2006-0071
Jurisdiction with regard to classification – process begun under old Act and therefore no jurisdiction

The Tribunal was called upon to determine its jurisdiction with regard to the reclassification of a position.

The position in question was reclassified in March 2006 although the work description was rewritten and submitted to classification in 2005. The new PSEA came into effect January 1, 2006. The incumbent was appointed through a non-advertised process on July 6, 2006.

The department argued that the process was under the old Act claiming that it had begun when the job description was amended and that the formal assessment of the successful candidate was simply the final step in that process.

The Tribunal agreed with the department that the process had begun under the old Act.

They did, however, express concern that the department had posted a notice of right to complain under the new Act and then argued that the complainant did not have such a right. The Tribunal said "Clearly an appointment has been made and, whether under the former PSEA or the PSEA, employees are intended to have recourse. That right should not be jeopardized because of any procedural uncertainty that may exist during this period of transition." Unfortunately, it did nothing to ensure that those rights would actually exist.

Czarnecki – Service Canada – Files 2006-0145 and 0146
Right to complaint – no right until appointment made or proposed

The complainant filed her complaint when she was eliminated from the selection process in two different processes.

Section 77 gives to individuals the right to file a complaint "when the Commission has made or proposed an appointment in an internal appointment process" (section 1). The Tribunal concluded that the right to complain is subject to the preliminary condition that there must be an appointment or proposed appointment in an internal appointment process.

Therefore the Tribunal concluded that, until such time that there is an appointment or a proposed appointment, there is no right to file a complaint.

In the old Act, an eligible list was considered a list of those proposed for appointment and therefore workers had appeal rights against those ‘proposed’ appointments. Unfortunately, the Tribunal did not give any indication as to when an appointment is proposed under the new PSEA.

Robbins – Service Canada – File 2006-0028
Non-advertised process – abuse of authority must be in decision to choose non-advertised over advertised process – PSST has no authority under Act to order an appointment

The complainant alleged the appearance of/or actual abuse of process in an internal non-advertised process.

The complainant argued that the department had not informed the complainant or others who been delegated the authority to make this appointment. As a result, those who made the staffing decisions did not have to deal with the consequences.

He also argued that, by basing the appointment on the successful candidate’s placing on an eligible list established under the old Act, the department abdicated its responsibility to assess the candidate against the merit criteria.

The complainant also asked the Tribunal to appoint him to the position in question.

The Tribunal dismissed the complaint.

The Tribunal decided that, based on the law, the choice of a non-advertised process does not, in and of itself, constitute an abuse of authority. A complainant must establish that there was an abuse of authority in the choosing of a non-advertised as opposed to an advertised process.

The preamble to the PSEA says that public service managers should have "the flexibility necessary to staff" and the Tribunal sees that as giving departments wide discretion in their choice of assessment methods. As a result, they find no reason to regard the use of old eligible lists or any other method of assessment per se as an abuse of authority.

Finally, the Tribunal points out the section 82 of the PSEA clearly states that "the Tribunal may not order the Commission to make an appointment or to conduct a new appointment process".

Pugh – Environment – File 2006-0165
Jurisdiction – revocation of appointment – acting/secondments are appointments – PSST only has jurisdiction over revocation if done under PSEA 15(3) or 67(2) – no jurisdiction as this appointment ended for operational reasons

Pugh filed a complaint with the Tribunal alleging that the ending of his secondment/acting appointment prematurely was done "unjustly, without justification and in bad faith". The employer argued that no revocation of appointment had occurred and therefore the Tribunal had no jurisdiction to hear the complaint.

Pugh was offered and accepted a one year secondment to Environment Canada. This secondment also involved an acting appointment as it was at a higher level within the IS group. The secondment agreement included an early termination clause which specified that operational requirements could be the reason for early termination. This was the reason given when his secondment was prematurely ended after about 4 months.

The Tribunal concluded that there was in fact an appointment made, albeit an acting one, because the acting appointment offer specified that it would be subject to recourse to the Tribunal. However, they then asked whether the appointment had been revoked under section 74 of the PSEA or had ceased through the application of the termination clause in the secondment/acting offer agreement.

In order for the Tribunal to have jurisdiction, the appointment would have had to have been revoked under either subsection 15(3) or 67(2) of the Act.

Under both of these sections, an investigation and a decision by the deputy head is required to revoke an appointment and the deputy head must decided that an error, an omission or improper conduct affected the selection of a person for appointment.

The Tribunal argued that none of the parties contended that there was anything wrong with the selection of Pugh to this appointment and therefore there was no investigation and decision to revoke. The ending of the appointment was due to operational requirements, not a problem with the selection process and therefore the Tribunal had no basis to claim jurisdiction.

Evans – DIAND – File 1006 -134
Jurisdiction – right to complain – right exists only if complainant has an interest in appointments in question

Evans filed a complaint pursuant to section 77(1) of the Act concerning a non-advertised appointments to a CR-4 Clerical Assistant position. The employer asked that the complaint be dismissed because the complainant had no right to file a complaint in this matter and because the complaint was frivolous and vexatious.

The complainant made the complaint on behalf of CR-3 employees even though she herself was an AS-2. Because section 77 of the Act states that an individual, in order to make a complaint, must do so because he or she was not appointed or proposed for appointment. In this case, the complainant provided no evidence or submissions to counter the employer’s assertion that she had no personal interest in the appointment(s) in question.

They therefore concluded that she did not have the right to file a complaint.

Because they determined that she did not have the right to file a complaint, the Tribunal decline to address the allegation that the complaint was frivolous and vexatious.

Umar-Khitab – Service Canada – File 2006-0233 and 0286
Area of selection – PSEA 34(1) gives to employer right to determine area of selection – PSST role does not include assessing the reasonableness of area of selection

Umar-Khitab filed complaints against two non-advertised processes in the Belleville office of HRSDC – Service Canada. The employer argued that, as he was outside the area of selection, he did not have the right of recourse with regard to these appointments.

Umar-Khitab works in Kingston and the area of selection was employees of HRSDC occupying positions in the Information Technology Centre, Belleville. This was not contested.

The complainant argued that the area of selection was not ‘reasonable’ as it did not take into account various criteria outlined in the Area of Selection policy of the department.

Section 34(1) of the PSEA gives to the employer the right to determine an area of selection. Therefore, the Tribunal concluded that it was not its role to assess whether an area of selection was reasonable or not as the issue of area of selection is not mentioned in sections 74, 77 and 83 which outlines the mandate of the Tribunal.

Richards – PWGSC – File 2006-0250
Complaint dismissed as out of time – sent by internal government mail – no proof of it being sent and therefore when it arrives is the relevant date

The complainant participated in a selection process. She was not selected for an interview. She received an e-mail with a list of qualified candidates and was told the time limit for filing a complaint expired December 7, 2006. She sent her complaint by government internal mail on December 6, 2006.

The onus, according to the Tribunal, lies on the complainant to prove that the complaint was mailed within time. This could be done by a postmark or postage meter impression.

As the information on filing in a timely manner was easily available to the complainant, the Tribunal saw no reason to extend the time limits in this case.

Tennant – CIDA – File 2007-0009
Request for extension – denied

The complainant initially first filed a complaint before getting any notification of the results of the appointment process. Upon receipt of a notice of consideration, she filed a second complaint. The notice of appointment was posted later.

She withdrew her first complaint. Later, after discussion with the Tribunal, she withdrew her second complaint as it was filed before there was a notice of appointment and filed a third complaint asking for an extension of time limits.

The Tribunal denied her request for an extension on the grounds that the information for filing in a timely manner was easily available to her.

The Tribunal also outlined the function of the Notice of Consideration and the Notice of Appointments. The Notice of Consideration tells employees that a person is being considered but is not yet, and may not be, appointed at all. This notice specifies a time period after which an appointment may be made (and a notice of appointment issued). The complaint must be against the appointment, the notice of consideration does not trigger any recourse rights under the PSEA.

Jolin – Service Canada – File 2006-0068
Jurisdiction of PSST over selection of assessment methods – onus of proof regarding allegations – abuse of authority

The complainant was eliminated from an internal advertised process because, prior to the process, she had failed the PSC In-Basket Exercise 810 and was not yet eligible to re-write it. She alleged that the respondent abused its authority in selecting this tool and should have let her demonstrate these abilities through the rest of the selection process.

The respondent argued that the tribunal had no jurisdiction over the selection of assessment methods. The Tribunal rejected this argument. It concluded that, because an abuse of authority could take place in the selection of assessment methods (e.g. a method could be selected that favoured one or more candidates, or discriminated against a group of candidates etc.), it had jurisdiction to look at the selection of methods.

The Tribunal ruled, again, that the onus of proof of an allegation lies with the complainant (Tibbs)

The Tribunal found that there was a link between the essential qualifications set for the position and the in-basket exercise, relying on the alleged ‘expertise’ of the PSC in this matter. They found no abuse of authority in the decision to assess all candidates using the same tools even though this penalized (eliminated) the complainant from the process.

It is important to note that the Tribunal, in its decision, directly linked the complainant’s allegations to the list of 5 categories of abuse of authority found in the Tibbs decision.

Scott & Moore 2006-0189 and 0190 – March 30, 2007
Abuse of authority in choice of non-advertised process for acting appointment – respondent argued complainants outside area of selection – dismissed – no right to complain.

Complainants argued that, in the e-mail accompanying the notification of appointment, they were included in those eligible to file complaints even though they were outside the area specified on the notification. The Tribunal was of the opinion that the notification is the primary source of information. The department has the right to establish an area of selection using geographical and/or organizational criteria over which the Tribunal has no jurisdiction.

(reference to Umar-Khitab 2007 PSST 0005)

Robillard 2006-0201 – April 19, 2007
Respondent argued that the PSST does not have jurisdiction as appointment was done using the student bridging mechanism – complaint dismissed due to lack of jurisdiction.

CBSA’s Choice of Appointment Process Policy allows for use of student bridging for external non-advertised processes. As this was an external process, the Tribunal has no jurisdiction under section 77 of the PSEA.

Trocchia 2007-0028 – April 20, 2007
Motion to dismiss – respondent claimed that the appointment was for locally-engaged staff outside Canada and therefore did not fall under the PSEA. Tribunal dismissed complaint for lack of jurisdiction.

The complainant alleged discrimination in hiring for a position open to locally-engaged staff in Miami. The respondent argued that locally engaged positions outside of Canada are not covered by the PSEA according to Order-in-Council PC 1967-444 and that the PC order had never been rescinded. The Tribunal agreed with this position and dismissed the complaint for lack of jurisdiction.

Of note in this decision is that the Tribunal reiterated its view on time limits. The complainant had initially gone to the Miami Dade County Opportunity Board who had no jurisdiction over the hiring for Canada’s foreign service. This caused a delay in filing with the PSST. The Tribunal again stated that filing in the wrong jurisdiction does not extend the time limits for a complaint to the Tribunal.
(reference to Suarez 2007 PSST 0008)

Lariviere, Marcouiller & McDuff 2007-0097,0115, 0116 – April 30, 2007
Request for extension of time to file complaint – filed complaint with PSC 3 months after notification and then with the Tribunal 2 months later.

The complainants argued they were depressed about the process, concerned about the ramifications of filing a complaint and confused about the process. The Tribunal reiterated that the time limits in the Act are strict. Filing to the wrong forum is not an excuse for not meeting the time limits. The Tribunal did not accept the reasons as being exceptional and dismissed the request and complaint.
(reference to Casper 2006 PSST 0010)

Broughton 2006-0085 May 2, 2007
Complainant claimed he met all the qualifications – failed to appear at pre-hearing conference and failed to provide any additional submissions after his allegations were responded to by the department. Complaint dismissed

The PSST ruled that this is not the same as failing to appear at the hearing as the pre-hearing conference is not a hearing. Failure to provide submissions is equivalent to failing to appear at a hearing in that PSST can decide complaint using a paper hearing. PSST, in this instance, decided complaint on basis of documents on file.

Complainant claimed he was screened out using the asset qualifications for the position. According to PSST, he failed to provide the necessary “convincing evidence”. The PSST says its job is not to re-assess the candidates. The new PSEA is not about relative merit (ie who is ‘best’) but rather is about management finding “the best fit” from a pool of qualified candidates.

Glende 2007-0099 May 30, 2007
PSST dismissed the complaint as the complainant had no right of recourse because the process was begun, and therefore done, under the old PSEA.

Complainant provided no arguments on this issue. The process was begun in June 2005 and therefore fell under the old Act. There is no right of recourse under section 77 of the new Act against processes undertaken via the old Act.

Visca 2006-0096 May 31, 2007
Abuse of authority in application of merit criteria – complaint dismissed

Complainant made 4 allegations – the selection board altered the advertised criteria of “extensive and recent experience”, the selection board only continued assessing those who were rated highest in experience, the selection board assessed the complainant incorrectly and the selection board used multiple panels to assess candidates

PSEA gives managers considerable flexibility in staffing

PSST found that mere errors do not constitute abuse of authority. Management has the discretion to set cut-off scores in assessing candidates and to emphasize different qualifications and criteria. There is no abuse per se in the use of multiple panels, particularly in this case where one individual overlapped all panels. The onus lies with the complainant to demonstrate abuse of authority.

Pugh 2006-0191 June 6, 2007
Abuse of authority in selection board altering the time available for presentation as part of board – dismissed

Complainant alleged that the selection board abused its authority by altering the time allotted for a presentation from 30 to 25 minutes. Candidates were told this at the beginning of the presentation section of the board. The department claimed it was a minor change and, since all candidates were treated the same, it was not an abuse.

The PSST found that, because the position description, emphasized the ability to work under the pressure, a small reduction in the time available was not an abuse in relation to the assessment. This was supported by the fact that all candidates were treated the same.

The Tribunal commented on the nature of the complainant’s language in e-mails and submissions. They found them to be “offensive and disrespectful” and stated, in the decision, that such behaviour, whether in an oral or a paper hearing, was unacceptable to Tribunal

Neufeld 2007-0013 May 14, 2007
Complainant failed to provide allegations – Tribunal considered complaint withdrawn

The complainant and his representative failed to provide allegations within the time limits and did not request extensions. Since the Tribunal e-mailed them on several occasions without receiving allegations or requests, the Tribunal ruled the complaint was deemed to be withdrawn.

Liang CBSA 2006-0124 July 13, 2007
Abuse of authority alleged in assessment – inconsistent enforcement of time limits, inconsistent information given to candidates and inconsistencies in the marking – onus lies with complainant and this was onus was not met – complaint dismissed

The complainant participated in an internal advertised process and was found not qualified as a result of criteria assessed through a role play done in an interview. The complainant made three allegations:

  • The written instructions stated that he had 10 minutes to gather information and make a decision while the oral instructions given said that he had 10 minutes to gather information and then make a decision. As a result, he took 10 minutes to gather information and then was denied the ability to provide his decision. The Tribunal decided that the complainant was not able to prove that there was any inconsistency in the application of the time limit and the assessment of candidates.
  • The complainant claimed he was provided information different from that given to other candidates but had no evidence of this. The Tribunal is not an investigative body and therefore can only conclude based on the evidence provided to it.
  • Because the complainant did not provide any evidence on this allegation, the Tribunal could not conclude other than that there was no abuse of authority.

Mvondo CIDA 2007-0142 to 0145 July 11, 2007
Issue of jurisdiction – no appointments made from internal process – complaints about simultaneous external processes – Tribunal found no jurisdiction because no appointment made from internal process and only PSC has jurisdiction over external processes – PSST found it did not have jurisdiction and dismissed the complaints.

The department initiated both advertised internal and external processes. The complainant applied on both and was not appointed or proposed for appointment. No appointments or proposed appointments were made from the internal process.

The employer requested the PSST dismiss the complaints for lack of jurisdiction as these complaints deal with an advertised external process.

The Tribunal found that it does not have jurisdiction to hear this complaint because no appointment or proposed appointment had been made (section 77(1)).

The Tribunal found that section 77(1) is clear that the Tribunal’s jurisdiction is limited to the internal appointment process, not the external process. Individuals who are wish to complain about an external process can request the PSC to investigate the process and, if necessary, take appropriate decisions.

St-Pierre & Letourneau DND 2007-0190 & 0196 July 11, 2007
Issue of jurisdiction – complainants were able to apply only on external processes – PSST has no jurisdiction over external processes – complaints dismissed for lack of jurisdiction.

The employer requested that these complaints be dismissed for lack of jurisdiction. The employer ran simultaneous internal advertised and external advertised processes. The complainants were term employees and not employed by the department at the time the internal process was advertised. Therefore they could only apply on the external processes.

As a result, the PSST does not have jurisdiction to hear their complaints as it has no jurisdiction over external processes according to the PSEA. Section 66 of the PSEA provides the PSC the ability to investigate any external appointment process.

Kane Service Canada 2006-0114 August 3, 2007
Abuse of authority in choice of process – complainant claimed position was a reclassification not a new position – PSST concluded that the PSEA does not require a particular process in either case – complaint dismissed.

The employer ran an internal advertised process for a newly created position within Service Canada. The complainant was not successful. He alleged abuse of authority in two ways – a) the position was in fact his and should have been treated as a reclassified position and b) the choice of an advertised as opposed to a non-advertised process for staffing the position.

The complainant, according to the Tribunal, has the burden of proof to show that the decision to use an advertised, rather than a non-advertised, process, regardless of whether the position was new or reclassified, was an abuse of authority.

The Tribunal stated that there is nothing in either the PSEA or PSER which requires a department to use a particular selection process depending on whether the position at issue is either a new or reclassified position. The PSEA clearly gives to the department the discretion to make the choice between an advertised and a non-advertised process.

Suarez – HRSDC 2007-0055 March 12, 2007
Employer alleged the complaint was untimely – request for extension – filing to wrong forum does not suspend PSST time frames – ignorance not a reason to extend time frames – request denied

The complainant wrote to the PSC asking for an investigation into a non-advertised acting appointment and, if he was in the wrong forum, asked where his issue should go. After a month, the PSC told him that his issue should go to the PSST. After another month, he filed a complaint to the PSST.

The Tribunal stated that the regulations are very clear about time frames and do not provide for an exemption if one files with the wrong forum. They also concluded that such an error was not a defect in form or technical irregularity and therefore cannot be corrected by the Tribunal.

The complainant argued that he believed the PSC was the proper forum and it delayed in correcting his belief and his department had failed to provide adequate training on the new staffing regime. The Tribunal concluded that, since the information was easily available on its website and the complainant took a month to file with the Tribunal after being informed of his mistake by the PSC, there were no grounds for extending the time limits.

Request for an extension of time limits denied.

Anwar – Fisheries & Oceans 2007-0092 May 8, 2007
Complainant failed to provide allegations – complaint considered withdrawn

The complainant filed a complaint with the PSST on March 1, 2007 and stated he would provide details later during discussion. The complainant did not respond to e-mails on April 13 and April 23. No response was forthcoming. As a result, the PSST decided to consider the complaint withdrawn.

Complaint considered withdrawn.

Smith – CBSA 2007-0177 June 25, 2007-11-01
Motion to dismiss as a deployment is not an appointment and therefore no right to complaint to the PSST exists – PSST agreed – complaint dismissed

The complainant filed with the Tribunal alleging abuse of authority in two deployments to Inland Enforcement Officer positions. Section 51 of the PSEA gives to deputy heads the authority to deploy employees to or within the deputy head’s organization. Section 53(1) states specifically that a deployment is not an appointment within the meaning of the PSEA. As the PSEA does not provide recourse to the Tribunal with regard to deployments, the complaint must be dismissed.

Complaint dismissed

Oddie – DND 2007-0066 July 3, 2007-11-01
Allegations of a flawed process because selection board contacted references not provided by the complainant, because selection board got a reference for the complainant from a referee for the successful candidate, because the selection board drew a negative inference from a referee’s declining to provide a reference for the complainant – PSST found ‘errors’ in the process – PSST did not find abuse of authority

The complainant participated in an internal advertised process and failed the effective interpersonal skills portion. The assessment was done on the basis of reference checks.

The Tribunal decided that, by applying for the position, a candidate implicitly consents to reference checks within the federal public service. They concluded that, if a referee is within the federal government, it is not an abuse of authority to contact anyone the selection board wishes without the candidate’s consent.

For one reference check, the selection board had “off the record” conversation and did not take notes. The Tribunal found that this was an error on the part of the selection board but an error does not constitute an abuse of authority. In this case, the selection board had other references with notes to support their decision and therefore this error does not invalidate the appointment process.

The Tribunal found that the selection board also made an error in drawing a negative inference from employees declining to give a reference without having asked, and received, the reasons for such a refusal. The Tribunal also found that this error was not a deciding factor in the decision not to appoint the complainant.

Even with these errors, the PSST found the process to be ‘fair and unbiased’. The Tribunal also decided that they would not reassess the content and accurateness of the referees’ answers as the assessment board is in the best position to interpret those answers.

Complaint dismissed

Carlson-Needham & Borden – DND August 23, 2007
Complainants alleged personal favouritism in the appointment – this was based on the successful candidate acting in the position and the provision to her of a closed office space as if she already had the position – the Tribunal found that these allegations had no merit and dismissed the complaints

The complainants applied on an advertised internal process for the position of Compensation Team Leader. The employer used a standardized test, a knowledge test and reference checks. The successful candidate had acted in the position for two periods in 2005 based on an earlier eligible list. At the same time, a closed office with the name “Compensation Team Leader” on the door was available and was occupied by the eventual successful candidate.

The complainants alleged that the acting opportunities given to the successful candidate gave her an advantage in the testing. They also alleged that, by giving her the office even before the appointment, the employer was tipping its hand with regard to who they wanted to be appointed.

The Tribunal noted that others, including one of the complainants, had passed the standardized test without the opportunity of acting in this position. In rejecting this allegation, the Tribunal also commented that supervisory experience was not a requirement for the position and that a wide area of selection was used – both points indicate that the process was not inappropriately favourable to the successful candidate.

As for the closed office space, the Tribunal found it “difficult to understand how this can provide an advantage to any candidate”.

The Tribunal therefore found that the complainants had not established, on the balance of probabilities, that the employer was guilty of favouritism in this process.

Gilbert – RCMP 2006-0199
Abuse of authority by referees who were also board members – complainant alleged negative comments were untrue and board should have looked for other references – Tribunal found no reason to either ignore negative information or an obligation to find other references – complaint dismissed

The complainant participated in an advertised internal appointment process with the RCMP. She was assessed and was placed in the pool but not chosen for an appointment.

The complainant alleged that her referee (who were also on the board) made negative comments about her in bad faith knowing that it would negatively affect the complainant. She did so even though such issues had never been raised with the complainant. The chair of the board (who was also the referee) influenced other board members to view the complainant negatively.

The Board dismissed these arguments. It pointed to the fact that the complainant did not challenge the positive comments of the referee. They concluded that a selection board must consider all comments, both positive and negative, in assessing a candidate.

The Tribunal concluded that, since the complainant had put forward the chair’s name as a referee, it could not be an abuse of authority for the board to take information from that individual.

The Tribunal also concluded that a selection board is not obliged to contact other references in the face of negative information.

Complaint dismissed.

Maides – Natural Resources – 2007 PSST 0041
Motion to dismiss complaints – two complaints filed – one out of time, the other concerning a priority appointment – Tribunal found it had no jurisdiction – motion granted, complaints dismissed

The respondent filed motions to dismiss the complaints. The complainant was informed in June of 2007 of an appointment resulting from an internal advertised process.

With regard to the first motion, the complainant claimed that he was not found qualified because of a prejudice against him on the part of the department. However, because he filed his complaint 7 days outside of the time limit specified by the Act, the complaint was late. The Tribunal found no reason or exceptional circumstance to extend the deadline and therefore granted the motion to dismiss the first complaint.

The Tribunal dismissed the second complaint because the PSEA specifically excludes priority appointments from complaints to the Tribunal (section 87)

Campbell, 2006 PSST 0011
MacDonald, 2006 PSST 0002
Suarez, 2006 PSST 0002

Lavigne – Justice – 2007 PSST 0045
Complaint against acting appointment – appointment less than 4 months – Tribunal not obliged to hold oral hearing – Tribunal has no jurisdiction on actings of less than 4 months – motion to dismiss granted – complaint dismissed

The complainant filed with the PSST against an acting appointment which was scheduled to last 3 months and 3 weeks.

The complainant formally requested an oral hearing. The Tribunal decided it had the right to deal with the case without an oral hearing based on section 98(1) and 99(3) of the PSEA. While it may in some cases be necessary to hold an oral hearing, the PSST decided that there was no need to do so in this case.

Section 14(1) of the PSER clearly states that acting appointments of less than four months are excluded from the application of Sections 30 and 77 of the Act. On this basis, the Tribunal concluded that it did not have jurisdiction to hear the complaint.

Quebec (Commission des Relations de Travail) v. Canadian Ingersoll-Rand Co. Ltd., 1968 S.C.R. 695
Seguin and Boucher-Legault 2007 PSST 0043
Parsons and Carey, 2006 PSST 0004
Schellenberg and Nyst 2006 PSST 0005

Molander – RCMP – 2007 PSST 0042
Complaint against layoff claiming it was an abuse of authority (section 65(1) of the PSEA) – Tribunal found it did not have jurisdiction as the complainant was not selected for layoff as her position was a singular position

The complainant was deemed surplus to requirements when it was decided that her position was to be eliminated. However, she was the only person occupying such a position. Because section 65 of the PSEA and section 21 of the PSER clearly contemplate situations where there is a selection for layoff amongst employees who have the same position, the Tribunal found that they did not have jurisdiction to look at a situation where no such selection amongst employees took place.

Section 65 of the PSEA explicitly denies to the Tribunal the right to hear a complaint against the decision of the employer to lay off employees, to determine which part of the organization the layoffs will occur and how many employees will be laid off.

Tibbs 2006 PSST 0008

Rinn – Transport – 2007 PSST 0044
Non-advertised process – complainant alleged that appointee lacked essential qualifications and that use of non-advertised process an abuse of authority – Tribunal found the employer created a ‘shadow’ position which was its right and therefore individual had essential qualifications as determined by employer – error in failing to provide notice an error but not an abuse of authority – complaint dismissed

Rinn filed a complaint against an acting appointment carried out through an internal non-advertised process to the position of Acting Regional Manager, System Safety. The complainant alleged abuse of authority in four areas – a) in the application of merit, b) in disregarding the essential qualifications of the position for acting purposes, c) in the choice of a non-advertised process and d) in the failure to provide timely notification of the appointment.

He alleged that the successful candidate lacked one of the essential qualifications for the position and that the employer disregarded that qualification in appointing the individual. The complainant argued that the position did in fact require a pilot’s license even with the new job description for acting assignments. Furthermore, the employer used a non-advertised process to circumvent challenges to the assignment of these positions to a particular classification group and to ensure that the employees and the bargaining agent were not aware of what the employer was doing with the position.

The Tribunal decided that it had no jurisdiction over the ‘creation’ of, and assignment of duties to, the position used for these acting assignments. It only has jurisdiction over the question of whether the appointment meets the merit criteria in the new PSEA.

The Tribunal stated that the PSEA gives to the employer the discretion to choose either advertised or non-advertised processes in staffing. The fact that the employer did not consult with the bargaining agent is not evidence of abuse of authority because the Act does not require such consultation on appointments. The Tribunal found that the lateness of the notice was not an abuse of authority but an error and “clearly not of a serious nature”.

Complaint dismissed

Charter – National Defence – 2007 PSST 0048
Advertised process – complaint against choice of process and against application of merit – employer’s choice of process not tainted by bad faith, personal favouritism or fettering of discretion – complainant failed to demonstrate his qualifications – complaint dismissed

Charter filed a complaint against an internal advertised process in which he was found not qualified because he did not have two of the essential qualifications. He claimed this was a reclassification of his position and that he had, and the employer knew he had, all of the essential qualifications. Therefore a non-advertised position should have been used to appoint him.

Even though the individual who was to staff the position wanted to use a non-advertised process, he was over-ruled. Because nothing established bad faith, favouritism or the fettering of discretion, the Tribunal concluded there was no abuse of authority.

The complainant failed to provide information on the 2 factors for which he was found not qualified even when asked for such information. The Tribunal concluded that it is the responsibility of candidates to demonstrate their qualifications and, in this case, the complainant failed to do so.

Complaint dismissed

Comeau – Service Canada – 2007 PSST 0047
Motion to dismiss complaint – department claimed PSST has no jurisdiction over the Treasury Board term policy – department claimed that the complainant’s appointment was not revoked under terms of the PSEA – Tribunal agreed it did not have jurisdiction – motion allowed and complaint dismissed

The complainant was a term employee with Service Canada. On May 14, 2007, she accepted an offer of indeterminate status under the term policy from Service Canada. In June, the employer informed her that a mistake had been made calculating her three year period – she had been on maternity leave during the period and such periods (longer than 60 days) are not counted toward the three year calculation. The complainant filed a complaint with the Tribunal against the revocation of her appointment (section 74 of the Public Service Employment Act). The employer filed a motion to have the complaint dismissed on the grounds that the Tribunal did not have jurisdiction over this action.

The Tribunal concluded that it did not have jurisdiction. Section 74 allows a person whose appointment is revoked under subsection 67(1), 15(3 or 67(2) of the Act. Because the conversion of tenure from term to indeterminate is made pursuant to section 59(1), it does not constitute an appointment and therefore there are no grounds for a complaint.

Motion allowed – complaint dismissed

Trachy – Transport – 2008 PSST 0002
Department did not have maximum number of marks per question on scoring grid – Tribunal concluded no proof that department was either unreasonable or unfair even though an error occurred – complaint dismissed

Trachy complained that the employer had abused its authority under Section 36 of the PSEA and the PSC Appointment Policy. She claimed that there was a lack of transparency in that the assessment questions did not show the maximum number of marks per question. This amounted to an abuse of authority.

The department admitted that it was a mistake not to have put the maximum score down on the grid for each question. The failure to do so meant that there was not a sound basis for making appointments according to merit. The selection board chair testified that they had graded each candidate against the maximum for each question.

The complainant argued that the PSC policy states that, if mistakes are identified, the selection board should correct them and this was not done. The department argued that the complainant had not proved, on the balance of probabilities, that abuse of authority had occurred.

The Tribunal concluded that the complainant had not provided any evidence that the choice and application of the assessment method resulted in an unfair result or was itself unreasonable. They further regarded the failure to put maximum scores on the scoring grid was a mere error which did not affect the final result.

Complaint dismissed

Cases cited:
Portree 2006 PSST 0014
Tibbs 2006 PSST 0008
Jolin 2007 PSST 0011

Neil – Environment – 2008 PSST 0004
Abuse of authority in selection of essential qualification and in assessment – Tribunal recognized wide discretion of employer in setting essential qualifications – not mandatory to tell candidates how a particular qualification will be assessed – complaint dismissed

Neil filed complaints against an internal advertised process alleging that the employer abused its authority in the establishment of the essential qualifications and in the assessment it undertook.

The complainant argued that the use of ‘significant experience’ as a screening criteria exceeded that in other processes and was an excessive requirement. In addition, by not telling candidates what they meant by ‘significant’, the process was not fair or transparent. He also argued that the assessment of candidates was not done properly – the selection board did not use their personal knowledge of his experience nor did they considered non-Environment Canada experience.

The department argued that it had the right to set the essential qualifications and there was no requirement for each and every process to have the same qualifications. They also argued that the Tribunal is not to re-assess candidates unless a complainant has demonstrated abuse of authority in the assessment itself.

The Tribunal concluded that the employer has a wide discretion to set qualifications for positions. While it would have been preferable if the department had informed candidates of complete details of how a particular qualification will be assessed, it is not mandatory. The Tribunal also found that the onus lies on the complainant to prove abuse of authority in relation to assessments. They concluded that the complainant in this case had not done so

Complaint dismissed

Cases cited:
Jolin 2007 PSST 0011
Visca 2007 PSST 0024
Tibbs 2006 PSST 0008
Rozka 2007 PSST 0046

King – Service Canada – 2008 PSST 0006
Use of ‘top-down’ method an abuse of authority – Tribunal concluded method was within discretion of employer but discouraged such methods as it suggests a ranking of candidates – complaint dismissed

King complained that the use of a ‘top-down’ method during the assessment constituted an abuse of authority.

The assessment involved a pass mark in the Managerial In-Basket Exercise 810 but the selection board told candidates that, even though there was a pass mark, a top down selection process would also be used.

The complainant argued that merit could not be met given that she passed the in-basket exercise but was eliminated from further consideration because of the top-down criteria.

The Tribunal concluded that the department has considerable discretion in choosing amongst candidates who meet the essential qualification. However, the use of a top down assessment process implies a ranking of candidates which the Tribunal discourages under the new PSEA. In its view, the use of a top down method is a method that falls within the broad discretion given to managers under the PSEA.

Complaint dismissed

Cases cited:
Visca 2007 PSST 0024
Jolin 2007 PSST 0011

Chaves – Correctional Services – 2008 PSST 0003
Use of non-advertised process an abuse as it violated departmental guidelines – Tribunal found that guidelines were not violated – complaint dismissed

Chaves filed a complaint against a non-advertised process for acting Parole Officer positions. Because more people came forward than available positions, an assessment was done.

The complainant argued that the department failed to follow the departmental guidelines for choosing a non-advertised process. He also argued that the department abused its authority in not extending his acting appointment while extending other acting appointments.

The Tribunal found that the department had in fact followed the departmental guidelines and provided the requisite rationale for the decision.

The Tribunal found that the complainant did not meet one of the essential qualifications for the position. This was not in dispute. The Tribunal did not see it as an abuse of authority that the employer gave an acting opportunity to the complainant and then failed to extend it on the ground he lacked one of the essential qualifications.

Complaint dismissed

Cases cited:
Wylie 2006 PSST 0007
Chaves 2007 PSST 0009 (Interim decision)

Kilbray and Wersch – Service Canada – 2007 PSST 0049
Complainat about merit criteria for non-advertised process – Tribunal took jurisdiction as merit criteria must be tied to the work to be done – Tribunal found criteria were within acceptable standards – Tribunal found it did not have authority to deal with areas of selection – complaint dismissed

Chaves filed a complaint against a non-advertised process for acting Parole Officer positions. Because more people came forward than available positions, an assessment was done.

The complainant argued that the department failed to follow the departmental guidelines for choosing a non-advertised process. He also argued that the department abused its authority in not extending his acting appointment while extending other acting appointments.

The Tribunal found that the department had in fact followed the departmental guidelines and provided the requisite rationale for the decision.

The Tribunal found that the complainant did not meet one of the essential qualifications for the position. This was not in dispute. The Tribunal did not see it as an abuse of authority that the employer gave an acting opportunity to the complainant and then failed to extend it on the ground he lacked one of the essential qualifications.

Complaint dismissed

Cases cited:
Wylie 2006 PSST 0007
Chaves 2007 PSST 0009 (Interim decision)

MacIntosh -Correctional Services -2008 PSST 0001
Jurisdiction – complainant denied appointment from eligible list – complained under section 83 – Tribunal ruled it had no jurisdiction as section 83 only relates to appointments under the new PSEA – complaint dismissed

The complainant was on a closed eligible list under the old Act. The employer also created an open eligible list. The complainant was told she was the next to be appointed. However, the department then deployed three individuals into the vacant positions and did not appoint the complainant. She filed her complaint under section 83 of the PSEA – failure of corrective action. The issue before the Tribunal was whether or not it had jurisdiction to hear the complaint.

The Tribunal refused jurisdiction. For a complaint to be filed under section 83, several events must take place. First, an appointment must have been made or proposed through an internal appointment process under the current PSEA. Then a complaint must have been filed under section 77 of the PSEA and be found substantiated by the Tribunal. Finally a new appointment must have been made. In this case, none of these events had taken place.

In addition, the new Act specifically states that deployments are not appointment for purposes of new Act.

Jurisdiction declined – complaint dismissed

Rozka et al – Citizenship & Immigration Canada – 2007 PSST 0046
Abuse of authority in not appointing via non-advertised processes individuals found qualified previously – Tribunal ruled that there was no abuse in that these individuals were assessed – they were not appointed because of the assessment not because of the choice of process – complaint dismissed

The complainants worked as CR-3s or CR-5s at the Case Processing Centre in Vegreville, Alberta. They were found not qualified in an internal advertised process for the position of Service Delivery Agent. Each of them had acted successfully in the position and had qualified on earlier processes but not been appointed.

The complainants argued that the employer abused its authority by choosing to use an advertised process rather than appointing those who had demonstrated their qualifications. The Tribunal concluded that, because the complainants had applied on the process, had been assessed, the reason why they were not appointed was not because of the choice of process but how they presented their qualifications.

The Tribunal concluded that there was no evidence that there was no error, omission or improper conduct by the department in the assessment of candidates.

The Tribunal also addressed the nature of ‘informal discussion’. According to the Tribunal, these ‘discussions’ are primarily a means of communication. While errors can be corrected, it is not an opportunity to request that the assessment board reassess a candidate’s qualifications.

Complaint dismissed.

Glasgow – PWGSC 2008 PSST 0007
Abuse of authority – personal favouritism – advantage gained through on the job training – Tribunal found that, while on the job training was given to the successful candidate, there were other reasons for the selection – complaint dismissed

The complainant was not selected for a one year acting opportunity as a Financial Officer. She alleged personal favouritism in that the successful candidate was given opportunities for training not extended to other candidates and the successful candidate was assessed more leniently than other candidates.

The department argued that no on the job training was provided but rather there was a reassignment of duties. However, the Tribunal concluded that this ‘reassignment’ included on the job training for the successful candidate. The Tribunal concluded that no evidence had been provided to show that personal favouritism was tied to or derived from this opportunity. The Tribunal concluded that the evidence indicated that the successful candidate was selected because of background and skills and not for reasons of personal favouritism. The Tribunal focussed on the fact that selections should be made for reasons other than personal favouritism and found that there were other reasons for the selection..

The Tribunal found no evidence that candidates were not treated in a consistent manner in the assessment process.

Complaint dismissed

Sequin & Boucher-Legault – DND 2007 PSST 0043
Abuse of authority – terms not re-appointed even though met essential qualifications – Tribunal found it was up to department to set qualifications and the manner of demonstrating such qualifications – complaint dismissed

The complainant were not selected for appointment (although they met the essential qualifications and were in the pool) and, as term employees, did not have their contracts renewed. They alleged abuse of authority in that they had met the requirements of the position and were being replaced by new employees who lacked the essential qualifications.

The complainants argued that they should have been appointed because they were in the job and performing well. They alleged that the manager relied on inadequate information about themselves and other candidates. The department argued that it is up to management to decide on the essential qualifications and what is required to demonstrate that a candidate meets those qualifications. In this case, other candidates were a ‘better fit’ and therefore they were appointed.

The Tribunal concluded that the complainants had failed to provide any evidence or argument to show that there had been an abuse of authority. Neither complainant was able to appear to testify as to their qualifications and the lack of qualifications on the part of other candidates. The Tribunal was unable to conclude that other candidates were not qualified simply on the basis of their resumes. Such claims require testimonial evidence.

Complaint dismissed

Sampert, Price, Garfield and Fonger – DND – 2008 PSST 0009

Henry – Service Canada – 2008 PSST 0010

Hammond, Westcoot, Gibbons – Service Canada – 2008 PSST 0008

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