Ryan v. Deputy Minister of National Defence
Public Service Labour Relations and Employment Board Act and Public Service Employment Act
- Date: 20170519
- File: EMP-2015-9766
- Citation: 2017 PSLREB 54
Before a panel of the Public Service Labour Relations and Employment Board
DEPUTY MINISTER OF NATIONAL DEFENCE
Ryan v. Deputy Minister of National Defence
In the matter of a complaint of abuse of authority under section 77(1)(a) of the Public Service Employment Act
- Bryan R. Gray, a panel of the Public Service Labour Relations and Employment Board
- For the Complainant:
- For the Respondent:
- Richard Fader, counsel
- For the Public Service Commission:
- Louise Bard (written submissions)
March 28 and 29, 2017.
REASONS FOR DECISION
1 Colleen Ryan (“the complainant”) had worked continuously since 1987 with the Department of National Defence as an electrician (classified EL-1) in its Esquimalt, British Columbia, naval dockyards. While on medical leave, she applied for a production supervisor position (classified SR(W)-MGT-01), which was an advertised internal appointment scheduled to close on September 17, 2014. Her application was reviewed, and she was screened in to the knowledge and experience examinations.
2 Upon being invited to participate in a simulation assessment, the complainant replied by indicating she was not available, and she sought an alternate date. The assessment board replied by inquiring as to why she needed the alternate date. It advised her that only a family or medical emergency would suffice as a valid reason. She replied by stating that her reasons were private and personal. The assessment board replied, asking for detailed reasons, and it cautioned the complainant that if she were absent without consent, she would be deemed to have withdrawn from the appointment process.
3 The complainant was, in fact, in Kitimat, B.C., working for a different employer at the time of the simulation assessment, and she chose not to return to Esquimalt for her interview. Shortly after that, she received notice that she had been deemed to have withdrawn from the appointment process. She then filed this complaint alleging bias on the part of the respondent and arguing that the decision to deny her the opportunity to reschedule her simulation assessment was motivated by bad faith.
4 While the complainant had no doubt experienced strained relationships with some of her managers at the Esquimalt dockyards, I do not have sufficient evidence before me to find bad faith or bias on the part of the respondent. She was fully aware of the potential consequences of choosing not to attend her simulation assessment appointment, yet she pursued that course, which led to her being deemed to have abandoned her application. Quite simply stated, the complainant was the author of her own misfortune.
5 The appointment process that is the subject of this hearing resulted from a prior appointment process for the same position that the complainant succeeded in having the Public Service Staffing Tribunal (PSST) order the revocation of the appointment. (see Ryan v. Deputy Minister of National Defence, 2014 PSST 9). That case casts a long shadow over this current complaint and must be given some attention to fully understand the allegations before me.
6 In that case, the complainant alleged a “history of conflict” (at paragraph 23) with one of the managers in her workplace. Among other things, she filed a complaint alleging gender-based discrimination by her manager, Al Hall, who then became a member of her assessment board. At her hearing, the complainant alleged that when discussing the pending appointment, he told her: “The only way I would give you this job is if I am ordered to.” The Vice-Chairperson of the PSST notes in his decision that this testimony was not challenged either in the complainant’s cross-examination or in Mr. Hall’s examination-in-chief.
7 Relying upon that testimony and on evidence of concerns with how acting assignments had been distributed, the PSST upheld the bias complaint and ordered the revocation of the appointment. The complaint before me arose from the employer’s second attempt to make this same appointment.
III. The law
8 Section 77 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13) provides that an unsuccessful candidate in the area of selection for an internal advertised appointment process may file a complaint with the Public Service Labour Relations and Employment Board stating that he or she was not appointed or proposed for appointment because of an abuse of authority, which is not defined in that 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.”
9 In its decision in Ryan, at paras. 25 and 26, the PSST lists the jurisprudence it often relied upon when considering allegations of bias in staffing appointments. The PSST found that it is not necessary for actual bias to be found, but rather, a reasonable apprehension of bias may constitute a finding of abuse of authority. It also found that the test for bias is that if a reasonably well-informed bystander could perceive bias by one or more of the persons responsible for the assessment, then the PSST could conclude that abuse of authority occurred (see Committee for Justice and Liberty v. National Energy Board,  1 SCR 369 at 394, and Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10 at 74).
A. Was Captain Earl biased against the complainant such that it influenced the appointment process?
10 The complainant gave uncontradicted testimony that subsequent to her 2014 hearing, Mr. Hall filed a harassment complaint against her, alleging that she gave false testimony that he said he would not give her the appointment unless ordered to.
11 The complainant stated that Mr. Hall’s complaint was received by the senior member of management in her area, Captain Chris Earl. She explained that he dismissed it without an investigation because it arose from a statement she had made under oath before the PSST. She further stated that Captain Earl told her that he would have taken the complaint seriously but for it being something she had said under oath. She told Captain Earl that she believed that Mr. Hall’s complaint was evidence of his bias against her.
12 She told Captain Earl that her managers did not speak to her and that they denied her fair access to acting supervisory assignments that she felt would help her prepare for the appointment she sought. The complainant testified that Captain Earl told her that she was not receiving acting supervisory assignments due to hostility in the workplace.
13 Shortly after that, in August 2014, the complainant testified that she went on sick leave due to the stress she felt her managers were causing. One month later, the same position was advertised, and she applied again.
14 The respondent called David Campbell to testify. He holds a management position at the complainant’s workplace. He testified as to his work with the assessment board. He explained that both he and another manager were asked to join the assessment board along with Captain Earl, as they were not involved in any way in the first appointment process. It is important to note that no evidence arose at the hearing implicating either Mr. Campbell or the other manager in the alleged acts of bias at the workplace. In cross-examination, the complainant confirmed that she did not allege bias against her from either of them.
15 Rather, the complainant alleges that Captain Earl and manager, Kevin Whitney, were biased against her. The evidence the complainant tendered against Captain Earl is that he told her that he would have taken the harassment complaint against her seriously had she not made the impugned statement under oath. She also alleged that he denied her acting supervisory assignments.
16 The respondent called Carson Ferguson to testify. He was a labor relations consultant in the complainant’s workplace. He was asked to explain how the acting assignments were handled. He explained that in fact, the complainant was due for her turn in the rotation of acting supervisor assignments but that the management team was concerned that it would put her in direct contact and potential conflict with Mr. Hall, to whom she would have reported in the acting position. Mr. Ferguson explained that instead, the team decided to defer her acting assignment. He stated she was later placed in a five-week acting assignment for which a three-week extension into the summer of 2014 was offered. She declined the extension and shortly after that went on sick leave.
17 I asked Mr. Ferguson if he was aware of the complainant receiving an explanation of the reasons behind the delay to her initial acting assignment. He said that he did not believe that occurred.
18 In light of Mr. Ferguson’s uncontradicted testimony as to the complainant being placed in an acting assignment, albeit delayed, I find no evidence of bias on the part of the respondent in how it handled her access to acting supervisory duties. The complainant’s testimony of what Captain Earl said to her about the harassment complaint against her is insufficient evidence upon which I can base a finding of bias.
B. Did the employer launch a fraud investigation into the complainant’s activities, and if so, is it evidence of bias against her?
19 The complainant called a co-worker to testify, which the respondent helpfully consented to allow to take place by telephone. The co-worker testified that a management representative had asked him to provide a personal email, which the co-worker somehow had become aware of, which stated the complainant was otherwise employed in Kitimat while she was away from the Esquimalt dockyards on medical leave. The co-worker testified that the management representative said that it was part of a fraud investigation the respondent was conducting, on Captain Earl’s direction. In cross-examination, the witness clarified that he had learned through his shop steward that Captain Earl had supposedly directed this investigation.
20 The respondent asked Mr. Ferguson to comment upon any management investigation into the circumstances of the complainant’s then-unpaid medical leave. He testified that in the fall of 2014, it became known around the shops that the complainant had begun working for another employer, which he stated was not consistent with her medical leave. The respondent wished to verify her status and to ask her to either return to work or resign if in fact she wished to pursue other employment. He stated that a letter was sent to her outlining this question and asking her to undergo a fitness-to-work assessment by a health professional.
21 Mr. Ferguson stated that he was not aware of this effort being directed by Captain Earl. He further stated that he did not see it stated in writing or hear that anyone referred to the investigation as a fraud issue. When asked, he stated that he did not believe the situation with the complainant’s employment was one of fraud.
22 In light of the fact that the only testimony before me as to the respondent accusing the complainant of fraud was what the co-worker witness had heard elsewhere, which was hearsay, and given Mr. Ferguson’s evidence to the contrary, I simply do not have reliable evidence upon which to make such an important finding, which would be prejudicial to the employer’s case. Had the hearing been able to examine a respondent’s representative who had uttered the phrase “fraud investigation”, and had that person been cross-examined, I would have been in a better position to assess his or her credibility and to make a more informed decision on this important aspect of the complainant’s allegations.
23 In light of my evidentiary findings on the fraud investigation allegation, I have no reliable evidence upon which to find bias on the part of the respondent towards the complainant arising from this allegation.
C. Is the fact that the respondent required the complainant to provide evidence of holding a Red Seal certificate evidence of bias against her?
24 The complainant testified that when she applied for the job at issue, she no longer had her electrician’s Red Seal card as it had been lost when her wallet was stolen. She further described how she had called the employer’s human resources office to ask if it had one on file as she wanted a copy. She then stated that shortly after her call, she received a request from the respondent indicating that she was required to submit proof of possessing a Red Seal card. She called another co-worker, Neil Brown, with whom the complainant stated she cohabitates, to testify. He stated that he participated in the same appointment process and that he did not submit his Red Seal card; nor did the respondent ask him to submit it.
25 Mr. Campbell testified that to his knowledge, all candidates in the process were required to submit proof of their Red Seal credentials.
27 I do not find the Red Seal credential issue proof of any aspect of the complainant’s case. Requiring the complainant to submit proof of those credentials was neither unfair nor illustrative of bias. Even though her co-worker testified that he was not required to submit proof of his Red Seal credentials, this might simply have been an oversight by the assessment board.
D. Was the employer’s refusal of the complainant’s request to postpone her simulation assessment appointment evidence of bad faith towards her?
28 Both parties rely upon Kress v. Deputy Minister of Indian and Northern Affairs Canada, 2011 PSST 41, as authority for their arguments on the refusal to accommodate the complainant’s postponement request for her simulation assessment appointment. In that case, Ms. Kress and Ms. Lavallee were candidates in the same appointment process, and both were unavailable for their scheduled written exam. Ms. Lavallee was away from work for one week on an annual leave that had been planned eight months earlier, which included attending a work-related conference.
29 The respondent gave all candidates three days’ notice to plan for the written exam. Ms. Lavallee replied to the invitation almost immediately. She explained her predicament and requested a postponement of her exam until her return to work the following week.
30 The assessment board replied the next day. It declined her request for a postponement, but Ms. Lavallee did not receive its email as she had already begun her leave. She discovered only upon her return to work a week later that her postponement request had been declined and that she had been removed from the appointment process.
31 Ms. Kress was also on annual leave at the time of the written exam but was able to arrange to write it online while she was away. She passed it. The next day, she checked her work email and found an invitation to participate in an interview six days hence. She replied by email the same day, advising that she wished to attend the interview but that she was out of the country on annual leave and would return in 10 days.
32 Her request was rejected. Several emails ensued, with Ms. Kress explaining the details as to why she felt unable to return from her annual leave and pointing out that she was seeking a delay of only two working days for her interview. She was told that that delay could not be accommodated as one of the assessment board members would be on leave upon Ms. Kress’s return.
33 The PSST noted that the possibility of holding the interview by telephone while Ms. Kress was away was not discussed. The PSST also noted the fact that Ms. Kress twice asked the human resources representative to speak with the responsible manager about the matter and that she received no reply either time.
34 Upon considering those facts, and after making detailed comments upon the relatively short timelines the respondent gave candidates to respond and to participate in the assessment process, the PSST rejected Ms. Lavallee’s complaint but upheld Ms. Kress’s and ordered the deputy head to revoke the appointment.
35 Applying Kress to the facts before me, I note the fact that while the complainant did stay in close communication with the assessment board, she was not forthcoming with details of the circumstances surrounding her postponement request. When she was asked for the particulars of why she needed a postponement, she replied only that it was “for personal and private” reasons. The assessment board replied and again reminded her that it had established that postponement requests would be considered only in medical or family emergencies.
36 After again being asked for the particulars of her request, the complainant repeated that it was due to “personal and private” reasons. I also note that in her requests to defer the assessment, she suggested no date on which to reschedule the appointment.
37 In testimony before me, the complainant explained that in fact, she was in Kitimat, and employed at a different job. Her testimony indicates that she simply chose not to return to Esquimalt to participate in the scheduled assessment that she was offered.
38 It is significant to note Mr. Campbell’s uncontradicted testimony that in addition to the complainant, two other employees screened into the evaluation stage of the same appointment process were denied their requests to postpone scheduled tests and were deemed to have withdrawn, as neither request met the stated postponement criteria.
39 It is also important to note Mr. Campbell’s testimony where he clearly stated that Captain Earl played virtually no role in the assessment board’s work and that he did not direct its response to the complainant’s postponement request. Mr. Campbell testified that he personally dealt with the postponement request and that he received no input or direction from other managers, other than the usual involvement of a human resources representative, who was assisting the process.
40 The complainant also made vague allegations about Mr. Whitney, who was the delegated hiring authority in the appointment process at issue. It was alleged that he was connected to the complaint Mr. Hall filed against her. Mr. Campbell testified that as the delegated authority, Mr. Whitney reviewed the statement of merit criteria but that he did not alter it. On the evidence before me, I find no proof that Mr. Whitney caused any bias or adverse treatment of the complainant in this appointment process.
41 And finally, by cross-examining Mr. Campbell, the complainant established that the scheduling of her simulation assessment was done in such a manner that it occurred on the same day as that of, Mr. Brown. Mr. Campbell explained that several employees, including the complainant’s ex-husband, had expressed concerns over the potential risk of the complainant and Mr. Brown colluding to share information about the assessment. The respondent planned the assessment process such that the complainant and Mr. Brown were booked in back to back consecutive time slots in order to mitigate the concerns over any risk of their colluding.
42 In her closing argument, the complainant stated that the respondent determined that she had colluded with Mr. Brown, which was evidence of bias against her. However, the facts do not support this assertion. The evidence clearly established the respondent neither concluded nor alleged the complainant was colluding. Given Mr. Campbell’s evidence, I find that the respondent acted reasonably to assure the integrity of the appointment process and that the complainant suffered no bias or adverse treatment from the decision to decline her postponement request.
43 Based on the evidence presented, I find that the complainant has failed to prove that the respondent acted unreasonably or in bad faith when it refused to postpone her scheduled simulation assessment test.
44 A poorly informed observer aware only of the difficult background and allegations before me might find an apprehension of bias present in the managers’ treatment of the complainant. However, given the test for bias, and the apprehension thereof, established by the Supreme Court of Canada in Committee for Justice,and upon being informed of the actual facts of the case, a reasonably well-informed observer would not see bias or the apprehension of, but rather would see that the complainant chose to pursue other employment in Kitimat rather than to return to Esquimalt to conduct her simulation assessment exercise. I conclude on a balance of probabilities that the complainant has not proven that the actions of the respondent, when considered individually or collectively, constitute an abuse of authority.
45 For all of the above reasons, the Board makes the following order:
46 The complaint is dismissed.
May 19, 2017.
Bryan R. Gray,
a panel of the Public Service Labour Relations and Employment Board