Canada Employment and Immigration Union - http://ceiu-seic.ca/en/staffing/quebec-members-score-important-win-on-staffing-case/
August 21, 2008

Quebec members score important win on staffing case

Since the employer changed the rules for staffing in the public service, management has been having it all their way. But in a recent case from Quebec, members scored a rare, but important, win at the Public Service Staffing Tribunal.

The staffing complaints were filed by Diane Cameron and André Maheux and they were represented before the Tribunal by CEIU members Pierre Rinfret and Michel Mathieu. The complainants made three allegations:

  1. That the employer was guilty of an abuse of authority over its choice of a non-advertised appointment process;
  2. That the employer abused its authority by relying on insufficient material to assess the employee appointed to the position;
  3. That the employer showed personal favouritism in the assessment of the employee appointed to the position.

The Tribunal found in favour of the complainants on the first two allegations and rejected the third.

Background

The complainants were both interested in a PM 4 vacancy (Regional Insurance Advisor) that was created through the retirement of the incumbent, Daniel Bourbonnais. Mr. Bourbonnais had informed the employer in January 2006 that he intended to depart at the end of May of that year. To address this vacancy, the Acting Director, Ms. Dominigue, appointed Lynda Bouchard on an acting basis effective June 20, 2006 and extended it on October 6, 2006 until March 31, 2007. It was this last appointment, made through a non-advertised process, that was the subject of the complaints. In support of her decision, Ms. Dominigue claimed that the non-advertised process was used because the employer faced an urgent and immediate need to staff the position. Ms. Dominigue also testified that Ms. Bouchard met all of the qualifications for the position.

Decision of the Tribunal

First allegation
In ruling on the first allegation, the Tribunal made a number of observations. It found that it was illogical to claim, as Ms. Domingue had, that the employer faced an urgent situation. Evidence brought forward by the complainant’s representatives clearly showed that she had known since March, 2006 that Mr. Bourbonnais was to retire at the end of May. In addition, the Tribunal noted that another employee, Mr. Robillard, had acted in the position in question for a number of years yet was not considered for the vacancy by Ms. Dominigue. Choosing Ms. Bouchard, an employee with no experience in the PM 4 position, while failing to even consider Mr. Robillard in the face of an allegedly “urgent situation” was seen by the Tribunal as further evidence of bad faith. The Tribunal concluded with the finding that the employer was guilty of an abuse of authority.

Second allegation
Before reviewing the evidence before it, the Tribunal noted that abuse of authority can arise when a decision-maker acts on inadequate material, in an absence of evidence or without considering relevant matters. It then turned to Ms. Dominigue’s testimony that maintained Ms. Bouchard met all the qualifications for the job. Contrary to what she had claimed, the evidence showed that an initial assessment of Ms. Bouchard had relied solely on the remarks of a supervisor who had overseen her work one or two days per week for a period of only a few weeks.

More damaging to the employer’s case was a document submitted to the Tribunal titled “Request for authorization for a term appointment”. In it, the employer states “Having assessed Ms. Bouchard, we find that she meets all the qualifications in the statement of merit criteria for the position…” The document also requires the employer to attach a copy of the curriculum vitae and the assessment report for the candidate. However, these crucial documents that allegedly provided evidence of Ms. Bouchard’s qualifications were never put before the Tribunal.

The Tribunal concluded that it was not sufficient for Ms. Dominigue merely to testify that she considered Ms. Bouchard qualified—the employer had to provide evidence of this. Without such evidence, it could not be said that the candidate met the qualifications for the position. In relying on insufficient material to support the conclusion that Ms. Bouchard was qualified, the Tribunal found that the employer had abused its authority.

Third allegation
The last allegation asserted that Ms. Dominigue had shown personal favourtism in the decision to appoint Ms. Bouchard. In reviewing the evidence before it, the Tribunal determined that Ms. Domingue had acted in bad faith when she did not consider Mr. Robillard for the position. But this, in combination with other evidence provided by the complainants did not, in the view of the Tribunal, amount to personal favouritism.

Corrective action

Having determined that two of the three allegations advanced by the complainants were founded, the Tribunal turned to the question of corrective action. It decided that three measures were required:

  1. Service Canada was ordered to review all appointments made by Ms. Domingue since the new staffing legislation came into force on December 31, 2005;
  2. The staffing authority delegated to Ms. Domingue was to be suspended by Service Canada during the review noted in the first measure;
  3. Service Canada was to provide Ms. Domingue with training to ensure that she correctly understood her responsibilities and obligations under the staffing legislation.

Conclusion

The complainant’s representatives, CEIU members Michel Mathieu and Pierre Rinfret are to be congratulated for the fine work they carried out in this case. They ensured the necessary evidence was put before the Tribunal and they argued the case effectively. The complainants were very well served by their representatives.

The victory demonstrates that blatant abuses of authority in the staffing process can be challenged by members. But no one should be persuaded that this case shows the new staffing rules can be effectively challenged. The new staffing legislation tilted power strongly in favour of management and provided little real opportunity to challenge decisions before the Staffing Tribunal. This case, while an important victory, is a rare exception and serves to highlight the overall inadequacies of the current staffing system.

Search This Website

The Personal