Harrie v. Deputy Minister of Fisheries and Oceans

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Summary


Public Service Labour Relations and Employment Board Act and Public Service Employment Act

Coat of Arms - Armoiries
  • Date:  20170518
  • File:  EMP-2015-9692
  • Citation:  2017 PSLREB 53

Before a panel of the Public Service Labour Relations and Employment Board


BETWEEN

STEPHEN MICHAEL HARRIE

Complainant

and

THE DEPUTY MINISTER OF FISHERIES AND OCEANS

Respondent

Indexed as
Harrie v. Deputy Minister of Fisheries and Oceans


Complaint of abuse of authority under section 77 of the Public Service Employment Act


Before:
Bryan R. Gray, a panel of the Public Service Labour Relations and Employment Board
For the Complainant:
Larry Teslyk, representative
For the Respondent:
Richard Fader, counsel
Heard at Halifax, Nova Scotia,
December 13, 2016.

REASONS FOR DECISION

I. Introduction

1         The complainant, Stephen Michael Harrie, was an unsuccessful candidate in the internal advertised process numbered “14-DFO-ATL-IA-CCG-103060” for an indeterminate appointment to the position of workshop supervisor, classified at the EG-06 group and level, in the Canadian Coast Guard (CCG), which is a special operating agency within the Department of Fisheries and Oceans (“the respondent”). The notification of appointment was issued on March 31, 2015 and the resulting complaint was filed on April 10, 2015.

2        The complainant alleges that the respondent erred in assessing two of his essential qualifications, which caused him to be screened out of the appointment process. He further alleges that the appointee did not meet one of the essential qualifications and asks that I revoke the appointment.

3        The respondent denies the allegation and maintains that it acted appropriately in screening out the complainant. It further states that the appointee met all the essential qualifications and states that if I do find an error in the assessment of the successful candidate that it is not serious enough to amount to an abuse of authority.

4        The Public Service Commission (PSC) did not attend the hearing. It did make written submissions that discuss the regulatory and policy framework that underpin appointment processes in the federal public service and the conduct of complaints such as this one before the Public Service Labour Relations and Employment Board (“the Board”). The PSC took no position on the merits of this complaint.

5        For the reasons that follow, I find that the complainant has not established that the respondent abused its authority; and I therefore, dismiss the complaint.

II. Background

6        The complainant has retired. He claims that his employer “forced” him to accept medical retirement in 2016. He began his career with the CCG in 1990 and worked in several positions, involving marine engineering as well as search and rescue. His career included work at sea and in the employer’s Dartmouth, Nova Scotia shops and offices. His last position was as a general technical - training preparedness officer and search and rescue coordinator (classified GT-04).

7        In acknowledging his retirement, the complainant testified that he had no interest in returning to work in the position in question should this complaint be successful. Rather, he stated that he wished to have the mistakes he alleges exposed and to have the March 31, 2015 appointment revoked.

III. Issues

8        The complainant pursued two allegations in closing argument, arising from his assessment and the appointment process:

  1. Did the respondent err by screening him out of the process based upon his stated work experience?
  2. Did the respondent err by failing to screen out the appointee due to his lack of a valid fourth-class marine engineer certificate - motor ship or higher?

IV. Analysis

9        Section 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the Act”) provides that an unsuccessful candidate in the area of selection for an internal advertised appointment process may file a complaint with the Board that he or she was not appointed or proposed for appointment because of an abuse of authority.

10        Abuse of authority is not defined in the Act. However, s. 2(4) offers the following guidance: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.” Abuse of authority can also include improper conduct and omissions. The nature and seriousness of the improper conduct or omission will determine whether it constitutes an abuse of authority (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8).

A. Did the respondent err by screening him out of the process based upon his stated work experience?

11        The complainant was screened out since it was found that he did not meet two essential experience qualifications, namely:

  1. experience as a Watch-keeping engineer on a sea-going [sic] vessel (Min. 3000Kw) (which the job opportunity advertisement said must be proven by submitting copies at the time of application of Sea Testimonials or Discharge Book,)  and
  2. Recent experience supervising personnel: (recent experience for this qualification was defined in the advertisement as being “experience normally associated with fulltime [sic] performance of the duties within the last three years.”)

12        In his job application, the complainant replied to these two essential qualifications by stating the following: “My experience as a Watch-keeping [sic] engineer on a sea-going [sic] vessel (3500 Kw) totals 18 years.”

13        His application then continued by listing several positions in the Coast Guard and on private fishing vessels that he states were “Watch-keeping/Deckhand” [sic] positions. He stated the following:

From 2000-Present I have worked as the SAR Preparedness Officer/In Charge of Rescue Specialist ProgramI am in charge of supervising the 112 Rescue Specialist [sic] located throughout the Atlantic Region. In addition … I was also in charge of managing the Rescue Specialist Program financial resources, preparing technical reports/documents, managing contract work and providing support solutions ….

14        The CCG responded to the complainant’s application in writing on January 7, 2015. It sought clarification of both qualifications and reminded him that the advertisement had instructed him to provide documentation to prove his service as a watchkeeping engineer on vessels over 3000 Kw.

15        The complainant replied on January 14, 2015, and stated that he would provide a letter from a former employer confirming that he had served as a journeyman marine fitter and that he had worked as one on several different vessels with a brake horsepower (bhp) rating of 4700 (3505 Kw). The complainant attached a letter dated April 30, 1988, from Jaymar Diesel Ltd., which stated that he had served a formal apprenticeship as a diesel marine fitter. It also confirmed that he is familiar with overhaul procedures on diesel engines of up to 4700 bhp.

16        At the hearing, the complainant called Joseph Boudreau, a marine safety inspector with Transport Canada. Mr. Boudreau testified that the 4700 bhp cited in that letter is equivalent to approximately 3500 Kw.

17        To satisfy the CCG’s requirement for documented sea service, the complainant also submitted a copy of his “Statement of Sea Service”. In summary, it provided a log signed by the masters and responsible officers of the several seagoing vessels that the complainant had served on between 1990 and 1997. The log confirms exact service dates, either the length or weight of each vessel, and the engine power rating, which ranged from 440 to 1400 bhp. Mr. Boudreau’s testimony confirmed that that range of engine power was sufficient for the complainant to satisfy the hours-at-sea requirement and for him to obtain a fourth-class marine engineer certificate, motor ship, from Transport Canada.

18        In addition to the letter from Jaymar Diesel Ltd., the complainant also indicated to the CCG that his role at the Search and Rescue (SAR) program office was supervisory and included tasks such as “budget, to training standards to discipline”. He added that while on training and exercises, he was in command of a vessel, and that under the Canada Shipping Act, 2001 (S.C. 2001, c. 26), this meant that he was “the person in charge”.

19        In response, the respondent called Darren Kennedy, who was the manager responsible for the appointment process and who served on the assessment board for the EG-06 position in question. Mr. Kennedy explained that none of the complainant’s documents stated that he had, in fact, served as the watchkeeping engineer on a seagoing vessel. He also indicated that the bhp of the vessels cited in the complainant’s documents were below the stated minimum in the job advertisement. Mr. Kennedy pointed out that where the complainant had cited his work for Jaymar Diesel Ltd. as satisfying the required experience, the documents provided clearly state that this was work done in satisfaction of an apprenticeship. Thus, the complainant failed to provide evidence that he was qualified as a watchkeeping engineer at that time.

20        My examination of the complainant’s documents revealed no confirmation that he held a watchkeeping engineer position at any time. I further note that I have no evidence of him proving in his application that his engineer service at sea was on vessels in excess of 3000 Kw.

21        The complainant’s examination-in-chief of Mr. Boudreau simply confirmed that the power of the vessels on which he had served at sea was sufficient to qualify as his required hours at sea for his Transport Canada fourth-class marine engineer certificate, a fact that was not contested. 

22        Given the clear evidence that the complainant did not meet the essential qualification of having served as a watchkeeping engineer on a seagoing vessel of a minimum of 3000 Kw, I find the respondent did not err in finding that the complainant failed to meet this essential qualification when it assessed his application.

23        On the topic of the second essential qualification, recent experience supervising personnel, Mr. Kennedy testified that the review of the complainant’s application showed that while he did, in fact, manage programs, the assessment board concluded that he did not have any recent experience managing personnel. In his application, the complainant stated that he was responsible for managing SAR personnel, but Mr. Kennedy explained that, in fact, the complainant managed the SAR program and that the SAR personnel reported to the ship’s steersman, known as the coxswain. He further explained that the EG-06 position required someone with recent experience because the person in that position was required to use a human resources software application that dealt with payroll, attendance, performance appraisals, etc. The appointee had to be experienced and conversant with these types of supervisory tools. At the hearing, the complainant offered no evidence of having performed this type of personnel supervision in the last three years before applying for the position in question.

24        Given the evidence about the complainant’s recent supervisory experience, I find that the employer made no error when it decided to screen him out of the appointment process.

B. Did the respondent err by failing to screen out the appointee due to his lack of a valid fourth-class marine engineer certificate- motor ship or higher?

25        While this allegation had no impact upon the complainant’s candidacy for appointment, he alleges that the appointee to the position was erroneously screened in and therefore improperly offered the position. The complainant notes that the job advertisement requires candidates had to have an occupational certificate, which is a valid fourth-class marine engineer certificate for motor ship vessels issued by Transport Canada.

26        Mr. Boudreau testified that the current regulations (Marine Personnel Regulations, SOR/2007-115), enacted under the authority of the Canada Shipping Act, S.C. 2001, c. 26, allow for the issuance of a single fourth-class (or higher) marine engineer certificate for motor ship vessels. He explained how this single certificate has been in place since July 2007, when the former two-part certificate was replaced. He testified that previously, Transport Canada had a two-part certificate system in place for marine engineers in which the first part, referred to as the “Minister’s Certificate”, did not expire and was granted upon a person’s successful attainment of all required qualifications and work experience. The second part involved a separate certificate referred to as “Standards of Training, Certification and Watchkeeping (STCW Endorsement)” and formally titled, Endorsement Attesting the Issue of a Certificate Under the Provisions of the International Convention of Standing of Training, Certification and Watchkeeping for Seafarers (International Endorsement). It had an expiry date and so had to be renewed. Proof of certification and of having attained the requisite hours at sea had to be submitted to Transport Canada.

27        Despite the details of such certificates being confidential, the complainant was able to ascertain that the appointee did not, in fact, have a valid fourth-class (or higher) marine engineer certificate in the current (as of 2007) licensing regime.

28        What the appointee did possess and did submit as part of his application was proof of having had a valid Minister’s Certificate and International Endorsement. However, his International Endorsement had clearly expired when he submitted his job application. The complainant also alleges that the Minister’s Certificate had also expired, given the new regime introduced in 2007. According to the complainant, if in fact, the appointee’s marine engineer certificate was expired at the time of his application, then he would not have held a valid certificate and therefore should have been screened out of the process.

29        In his testimony on this matter, Mr. Kennedy quickly admitted to what he called a “poor choice” of wording in the essential qualification that all applicants had to hold a valid certificate. He explained that he was not even aware of Transport Canada’s 2007 certification change unifying the older two parts of the marine engineer certificate. He testified that he intended the mandatory qualification certification requirement to include the former Minister’s Certificate that did not expire. Mr. Kennedy stated that the position in question was not to involve any duties at sea and that only the requisite knowledge for the former Minister’s Certificate was required to perform the duties. As a result, the position did not require the seagoing practical know-how that came with the second part of the former certificate. He candidly testified that if he could redo the qualifications, he would choose better wording that would clarify his intent to require candidates to only have at one time held a fourth-class engineer certificate.

30        The respondent also produced evidence showing a “Transport Candidate Status Report” that provided a synopsis of the appointee’s qualifications. It is dated in 2013 and is signed by a Transport Canada examiner. It shows that the appointee held a fourth-class marine engineer certificate for motor ship vessels that it states was issued on February 2, 1995. This report does not indicate an expiry date for that certificate.

31        As Mr. Kennedy admitted, the wording of the essential qualification requiring a valid fourth-class marine engineer certificate was misleading given the regulatory regime in place at the time of the job advertisement. I find this misunderstanding led to an error on the job advertisement.

32        The complainant did not cite any cases to support his allegations that the employer made errors amounting to an abuse of authority with respect to how candidate qualifications were assessed.

V. Conclusion

33        Through his evidence, the complainant established that an error appeared in the job advertisement based upon the essential qualification that applicants had to have a valid fourth-class marine engineer certificate for motor ship vessels. The previously described licensing regime caused the word valid to take on a new meaning that the hiring manager did not understand or intend.

34        The complainant argues that given the accurate meaning of a valid certificate, I should find that the successful appointee was improperly assessed as having met all essential qualifications.

35        While I do find that an error was made due to the misunderstanding I have described, I do not find this is an abuse of authority. The error caused the complainant no harm. He argues that some of his former co-workers would have applied for the position had they known that a valid certificate under the new system was not, in fact, required. However, none of them had sufficient interest in the matter to file a complaint. This Board has consistently held that a complainant cannot advance a complaint on behalf of others (see Evans v. Deputy Minister of Indian Affairs and Northern Development, 2007 PSST 4).

36        If I were to order the revocation of the appointment at issue, almost 2 years after the fact, it would result in a waste of public resources since the appointment process would have to be conducted again. The successful appointee possessed the employer’s intended essential qualifications.

37        In his closing argument, the complainant stated that he wished for a declaration that the employer made a mistake and that the appointment resulting from the process at issue be revoked. For whatever it is worth to him, he shall have the first of his two requested remedies.

38        For all of the above reasons, I make the following order:

VI. Order

39        The complaint is dismissed.

May 18, 2017.

Bryan R. Gray,

a panel of the Public Service Labour Relations and Employment Board