Frequently Asked Questions
These documents aim at providing general information. They have no legal status and do not provide legal advice. If you need legal advice, please contact a lawyer or other representative. In the event of any discrepancy between the legislation and the information contained in these documents, the legislation will apply.
- I work in a private company, and I provide service to the public. Can the FPSLREB help?
- I work in a restaurant (or as a gardener or a truck driver). Can the FPSLREB help?
- I am an employee of a federal charter industry such as broadcasting, banking, interprovincial transportation (air, land and water), longshoring and grain handling, can I refer a grievance to the FPSLREB?
- I work for the federal government in a management position, and I am not in a union. Can I use the FPSLREB's services with respect to labour relations matters?
- I work for the federal government as an external contractor, on a short-term contract (casual of less than 90 days) or in special short-term work such as during the census or during an election. Can I access the FPSLREB's grievance services?
- I work for the federal government, but my problem is with the bargaining agent that represents me. Can I make a complaint against my bargaining agent?
- I’m a public servant. My problem involves internal appointments or layoffs or is about the implementation of corrective measures previously ordered or the revocation of appointments. Can the FPSLREB help?
- I’m a public servant and my federal government employer is slow to send my paycheque. Can the FPSLREB help me?
- I’m not a public servant, but I participated in an external process and I want to complain about the process. Can the FPSLREB help me?
- What can I do if I am not satisfied with a decision of the FPSLREB?
- I found a text error in a decision. How do I get it corrected?
MANDATE OF THE BOARD
ABOUT THE LEGISLATION
- What is involved in a grievance adjudication hearing?
- How are participants notified that a hearing has been scheduled?
- Where do hearings take place?
- Are hearings open to the public?
- Are special accommodations available for persons with disabilities?
- Are hearings recorded?
- Are hearings interpreted in the other official language?
- What should witnesses expect at a hearing?
- What types of grievances can be referred to the FPSLREB?
- Individual grievances
- Group grievances
- Policy grievances
- What is involved in the formal grievance adjudication process?
- How do we refer a grievance to adjudication?
- Where does the burden of proof lie in grievance adjudication cases?
- How long does it take to resolve a grievance case?
- What type of assistance does the FPSLREB give parties referring a grievance to adjudication?
- What is an expedited adjudication process and who can use it?
ABOUT STAFFING COMPLAINTS
- Who can file a complaint under the Public Service Employment Act?
- What are my options for making my concerns with a staffing action known and possibly for filing a complaint?
- What does abuse of authority mean?
- What types of staffing complaints can be filed at the FPSLREB?
- Who are the « parties » and the « other parties » to a complaint?
- Will my personal information, such as home address, be disclosed to other parties involved in my complaint?
EXCHANGE OF INFORMATION
- What is the purpose of the exchange of information?
- How should the information be exchanged?
- Am I entitled to receive a copy of whatever I ask for related to the appointment process?
- What information is considered to be relevant for the exchange of information?
- What can I do if the other party refuses to provide the information that I have requested?
- What factors will the FPSLREB consider when deciding whether to order a party to produce information?
- What kind of information can the FPSLREB order a party to produce?
- Is all personal information protected by the Privacy Act?
- Can the FPSLREB place conditions on the release of information?
- Can I use the information obtained as a result of a FPSLREB order for purposes other than the complaint?
THE COMPLAINT PROCESS
- Do I have to identify myself when filing a complaint?
- Will the FPSLREB investigate my concerns about a selection process even if I haven't applied for the job?
- Can another person file a complaint on my behalf?
- Can a complaint be filed upon receiving a notification of consideration?
- How do I file a complaint?
- Should I include sensitive or confidential information in my complaint?
- Can the time limit for filing a complaint be extended?
- Is there a time limit for making an allegation of discrimination?
- When should I be providing my exhibits (i.e. the documents that will support my case) to the FPSLREB?
- How do I enter my documents into evidence at the hearing?
I work in a private company, and I provide service to the public. Can the FPSLREB help?
Likely not, if your employer is a private company. Employees of the federal public sector work for the federal government.
I work in a restaurant (or as a gardener or a truck driver). Can the FPSLREB help?
Maybe. Your job title is not the only factor. Rather, the question is whether your employer is the federal government.
Therefore, for example, if the restaurant is the Parliamentary cafeteria, if you maintain the grounds at the Governor General's residence or if you drive trucks at a Canadian Forces base, you may well be employed by the federal government. However, if you perform any of those functions in the private sector, we suggest that you contact the provincial agency responsible for dealing with labour relations matters in your province.
I am an employee of a federal charter industry such as broadcasting, banking, interprovincial transportation (air, land and water), longshoring and grain handling, can I refer a grievance to the FPSLREB?
The FPSLREB does not have responsibility for employees in those types of industries. The Canada Industrial Relations Board (CIRB) has jurisdiction for about 800 000 employees engaged in federal jurisdiction industries and may have jurisdiction over your industry. Please refer to the CIRB's website for contact information.
I work for the federal government in a management position, and I am not in a union. Can I use the FPSLREB's services with respect to labour relations matters?
There are situations when a federal public service employee who is in a management exclusion position can file a grievance with his or her employer. In some cases, such as for a disciplinary action resulting in a financial penalty (termination, suspension, etc.), the employee can refer the grievance to adjudication at the FPSLREB after completing the grievance process in his or her department or agency. Please refer to the FPSLREB's guide to individual grievances.
I work for the federal government as an external contractor, on a short-term contract (casual of less than 90 days) or in special short-term work such as during the census or during an election. Can I access the FPSLREB's grievance services?
No, they are not available to you. You may wish to consult a lawyer.
I work for the federal government, but my problem is with the bargaining agent that represents me. Can I make a complaint against my bargaining agent?
The Federal Public Sector Labour Relations Act provides the following: “no employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit”. If you believe that that is the case and wish to file a complaint, you may wish to review the FPSLREB's guide to fair representation.
I’m a public servant. My problem involves internal appointments or layoffs or is about the implementation of corrective measures previously ordered or the revocation of appointments. Can the FPSLREB help?
Yes, but not through the labour relations or grievance process. The Public Service Employment Act (the PSEA) authorizes the FPSLREB to consider, assist with resolving, hear and decide complaints related to these matters. Please refer to the Staffing Complaint Process section of the FPSLREB's website for additional information.
I’m a public servant and my federal government employer is slow to send my paycheque. Can the FPSLREB help me?
As a quasi-judicial tribunal, the Federal Public Sector Labour Relations and Employment Board must provide information in an unbiased and neutral fashion and cannot advocate in any manner for individual employees, bargaining agents or employers. If you feel there has been an error or irregularity in the calculation, preparation or delivery of your pay, you may always contact the pay advisor in Human Resources in your department or organization.
If you are represented by a bargaining agent (union), your collective agreement may specify terms and conditions surrounding the calculation, preparation or delivery of your pay and you should contact your bargaining agent if you need assistance.
Should you wish to present a grievance on this issue, you will need your bargaining agent's support. The grievance must be first presented in your department or organization. You will also need the support of your bargaining agent to refer your grievance to adjudication before an unbiased, neutral adjudicator if you have presented it at all levels of the grievance process and you are not satisfied with the decision that the employer rendered at the final level.
If you are not represented by a bargaining agent, you can still present a grievance in your department or organization. However, you will not be able to refer your grievance to adjudication if you are not satisfied with the decision that the employer rendered at the final level of the grievance process. You may want to seek legal advice on the options that are open to you.
I’m not a public servant, but I participated in an external process and I want to complain about the process. Can the FPSLREB help me?
No. For external selection processes, you have to contact the Public Service Commission, which is separate from the FPSLREB.
What can I do if I am not satisfied with a decision of the FPSLREB?
Pursuant to section 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, "every order or decision of the Board is final and is not to be questioned or reviewed in any court".
However, if you are not satisfied with a decision, you may file a challenge before the Federal Court by initiating judicial review proceedings. More information about judicial review proceedings may be obtained from the Federal Court of Appeal’s Registry. More information is available on our judicial review fact sheet.
I found a text error in a decision . How do I get it corrected?
On rare occasions, a decision of the Board or an adjudicator may contain clerical errors. These clerical errors are not to be confused with what parties would consider errors in reasonableness or correctness.
If you were a party, you can bring a clerical error to the Board's attention by contacting its Registry.
If you know the identity of the Registry officer who was responsible for administering your case, you may phone or email that officer directly and inform him or her of the error. Be sure to provide the case number or the citation number and the details of the error, including its location (the page and paragraph number in the decision).
If you are not sure who the responsible Registry officer was, you can send an email to Director.firstname.lastname@example.org with the details.
Normally, if the text error is corrected, the parties will be notified, in writing, of the changes made to the decision. However, notification will not necessarily be provided if the error was minor (e.g., a minor grammatical error) and it did not affect the essential nature of the decision or its page numbering.
Mandate of the Board
What is the mandate of the Board?
The Board is an independent tribunal that was created on November 1, 2014, when the Federal Public Sector Labour Relations and Employment Act came into force.
The Board administers the collective bargaining and grievance adjudication systems for the federal public sector and Parliamentary employees as well as, since June 1, 2016, RCMP members and reservists. It is also responsible for resolving staffing complaints under the Public Service Employment Act related to internal appointments and layoffs in the federal public service.
The Board provides two main services:
- adjudication - hearing and deciding grievances, labour relations complaints, and other labour relations matters and dealing with staffing complaints related to internal appointments, layoffs, the implementation of corrective measures ordered by the Board, and revocations of appointments.
- mediation - helping parties reach collective agreements, manage their relations under those agreements, and resolve disputes and complaints without resorting to a hearing.
The Board’s commitment to impartially resolving labour relations issues and staffing complaints contributes to a productive and efficient workplace that ultimately benefits all Canadians through the efficient delivery of government programs and services.
What powers does an adjudicator have?
The FPSLRA grants adjudicators various powers, including the authority to:
- summon witnesses;
- administer oaths and solemn affirmations;
- order the production of documents;
- hold hearings, in person or in writing;
- accept evidence; and
- enter any premises of the employer, inspect and view any work, material, machinery, appliance or article.
When the adjudicator finds that the grievance is well founded, he or she has the power to make the grievor whole and to compensate the grievor for any losses suffered. This includes, among others, the power to:
- reinstate a grievor in his or her job, with back pay and benefits;
- rescind a disciplinary action that resulted in a suspension or financial penalty; and
- order monetary compensation when a collective agreement provision has been violated.
The adjudicator can also interpret, apply and give relief in accordance with the Canadian Human Rights Act, except for matters relating to the right to equal pay for equal work.
The adjudicator can also award interest in grievances involving termination, demotion, suspension or financial penalty at a rate and for a period that the adjudicator considers appropriate.
Finally, the adjudicator can dismiss grievances deemed to be frivolous or vexatious.
Are the decisions of an adjudicator final?
The decisions of adjudicators are final and may not be questioned or reviewed in any court, except under limited circumstances. The Federal Court of Appeal can judicially review a decision rendered by an adjudicator in certain cases. The grounds under which a judicial review can be sought are found in the Federal Courts Act. More information is available on our judicial review fact sheet.
Who is responsible for mediation at the FPSLREB?
Mediation sessions are conducted by mediators from the Mediation and Dispute Resolution Services section of the FPSLREB. If necessary, the FPSLREB may engage external mediators both in the National Capital Region and other regions of the country.
Is mediation mandatory?
Mediation is a voluntary process at the FPSLREB. However, it is assumed that parties will participate in mediation unless they indicate, within the established time frame, that they do not wish to do so. If a party decides to opt out of mediation at the beginning of the complaint or grievance process, he/she can still request mediation services from the FPSLREB later on in the process.
Is the mediation process confidential?
Participants in mediation will be required to sign a mediation agreement which outlines the confidential nature of the mediation process. The agreement states that information exchanged during mediation is considered to be confidential and, as such, cannot be admitted as evidence in any subsequent administrative or judicial proceeding by one of the parties - except for information provided by that same party or information that can be obtained independently from other sources.
The mediator will disclose information revealed during mediation only if required to do so by law or if there is a real or potential threat to human life or safety in not disclosing the information.
What happens if the Terms of Settlement are not respected by one of the parties?
If one of the parties failed to respect the terms of a mediated settlement, it would be possible for the other party to seek legal advice with a view to having the Terms of Settlement enforced as a legally-binding document.
In order to ensure that the mediated settlement is entirely enforced, the parties could agree to include a commitment in the Terms of Settlement to meet on a given date and follow-up on the implementation of the agreed upon measures.
ABOUT THE LEGISLATION
The FPSLREB is responsible for the interpretation and application of which legislation?
Under the Federal Public Sector Labour Relations and Employment Board Act, the FPSLREB is responsible for interpreting and applying the following legislation:
The Federal Public Sector Labour Relations Act (FPSLRA)
- Collective bargaining and grievance adjudication systems for the federal public sector and Parliament, as well as RCMP members and reservists
The Public Service Employment Act (PSEA)
- Complaints related to internal appointments, appointment revocations, and lay-offs in the federal public service
The Canadian Human Rights Act (CHRA)
- Human rights issues in grievances and complaints under the FPSLRA and PSEA
The Parliamentary Employment and Staff Relations Act (PESRA)
- Collective bargaining and grievance adjudication for the institutions of Parliament
The Public Sector Equitable Compensation Act (PSECA)
- Pay equity complaints in the federal public sector
Part II of the Canada Labour Code (CLC)
- Complaints related to workplace health and safety and reprisals in the federal public service
What is involved in a grievance adjudication hearing?
Hearings are similar to those in a court of law, but are less formal. There is no cost for a hearing.
A party is given the opportunity to submit evidence by way of witnesses and relevant documents and to make submissions to support his or her position.
Before the hearing, an official notice confirming the date, time and place of the hearing is forwarded to the grievor, complainant or representative and the other party.
It is the responsibility of each party to advise the Federal Public Sector Labour Relations and Employment Board (FPSLREB) in advance if simultaneous interpretation is required at a hearing. There is no cost for this. Parties must also indicate in advance whether accommodation measures are needed for the hearing, such as for persons with disabilities.
If a person is provided with a notice of hearing and does not attend, the board member may still hold the hearing and make a decision without contacting the person further.
Witnesses called by one party may be cross-examined by the other party. Should a party decide to testify, he or she may also be subject to cross-examination. Whichever party summons the witness must pay the required fees and allowances.
A grievor or complainant may represent himself/herself or may be represented by a person of his or her choice, including legal counsel. He or she is responsible for retaining a representative and covering the associated cost rests.
If one of the parties intends to file an exhibit (evidence), and an official version of the document exists in both official languages, that person must file both versions of the text at the hearing. That person must provide sufficient copies for the presiding adjudicator, the other party to the proceeding, and any witnesses who may need to see it at the hearing.
Once the hearing is completed, a decision will be written and a copy will be sent to the parties.
How are participants notified that a hearing has been scheduled
Parties directly involved in the hearings (the grievor's representative and the employer and representative) receive a written notice of hearing at least seven days before the hearing starts.
Where do hearings take place?
The FPSLREB does its best to accommodate the parties with respect to the location of the hearing. Hearings are scheduled to be held in the major urban centre closest to where the grievor/complainant works. We aim to hold hearings in neutral locations that have the flexibility to respond to changes in the need for meeting rooms.
Are hearings open to the public?
Yes. In general, hearings are open to the public. An exception is cases where national security is at issue. The hearing schedule is posted on the FPSLREB website.
Are special accommodations available for persons with disabilities?
Yes. When sufficient advance notice is received, the FPSLREB makes every effort to ensure that the hearing location is accessible to persons with disabilities and is barrier-free.
Are hearings recorded?
As a rule, the Board does not record hearings or prepare minutes. The presiding panel of the Board or adjudicator takes notes of the evidence and submissions, which are not made available to the parties or to the public. Parties wishing a record of proceedings are advised to take notes.
Are hearings interpreted in the other official language?
Simultaneous interpretation in the other official language is available, free of charge. The party requiring that service must request it sufficiently in advance that we can ensure that a bilingual Board member or adjudicator is available and that arrangements for qualified interpreters and sound equipment can be made.
What should witnesses expect at a hearing?
Witnesses will be asked to take an oath or solemnly affirm that they will tell the truth at the hearing. The parties will then ask them questions.
What types of grievances can be referred to the FPSLREB?
The FPSLRA refers to three types of grievances: individual grievances, group grievances and policy grievances.
Individual grievances relate to the interpretation or application of a collective agreement or arbitral award or any matter affecting the terms and conditions of a specific individual's employment, such as disciplinary action, demotion, termination, suspension or financial penalty (s. 208).
If an employee grieves against a termination of employment or demotion for unsatisfactory performance and refers the grievance to adjudication, s. 230 of the FPSLRA requires the adjudicator to find that the termination or demotion was for cause if he or she determines that the deputy head's opinion about the unsatisfactory nature of the employee's work was reasonable.
The FPSLRA allows grievances against deployment. Such grievances, however, can be referred to adjudication only when they relate to deployment without consent, where consent is required (s. 209(1)).
When an employee has a workplace dispute, he or she must choose between presenting a grievance and making a complaint under any applicable internal policy of the employer. However, this requirement to choose applies only if the internal policy expressly states that the employee gives up his or her right to grieve when he or she pursues relief under the policy.
It is possible to refer grievances that raise issues under the Canadian Human Rights Act, except in relation to pay equity, and be awarded monetary relief as provided under the FPSLRA (s. 208). The Canadian Human Rights Commission is entitled to be notified of such grievances and has standing to make submissions to an adjudicator.
A group grievance may be presented when two or more employees in a single department or agency are similarly affected by the interpretation or application of a collective agreement or arbitral award (s. 215). Employees are able to opt into a group grievance referred by their bargaining agent. Employees may decide later that they no longer wish to participate in the group grievance and opt out (s. 218)
A policy grievance relates to the interpretation or application of a collective agreement or an arbitral award (s. 220). Either the bargaining agent or the employer can refer a policy grievance.
Fact sheets, practice notes, guides and the Federal Public Sector Labour Relations Regulations provide more details about the FPSLREB's grievance process.
What is involved in the formal grievance adjudication process?
The FPSLRA provides for the possibility to refer grievances to adjudication before the Federal Public Sector Labour Relations and Employment Board (FPSLREB), for determination by an independent third party. In the case of an individual grievance, if at the end of the departmental or agency internal grievance procedure, the grievance has not been resolved to the employee's satisfaction, the employee may refer the grievance to adjudication before the FPSLREB if the grievance relates to:
- a. the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award; or
- b. a disciplinary action resulting in termination, demotion, suspension or financial penalty; or
- c. in the case of an employee of the core public administration, (i) demotion or termination for unsatisfactory performance or for any other reason that does not relate to a breach of discipline or misconduct, or (ii) deployment under the Public Service Employment Act without the employee's consent where consent is required; or
- d. in the case of an employee of a separate federal government agency listed in Schedule V of the Financial Administration Act that is designated by order for that purpose, a demotion or termination for any reason that does not relate to a breach of discipline or misconduct.
Group and policy grievances may also be referred to adjudication, as they relate to the application or interpretation of a collective agreement or an arbitral award.
How do we refer a grievance to adjudication?
A grievance can be referred to adjudication by completing a Reference to Adjudication form (Form 20 or 21 depending on the type of grievance). The grievor should submit the reference to adjudication to the FPSLREB, with two copies of the grievance, no later than 40 calendar days after receiving the employer's decision at the final level of the grievance process or 40 days after the expiry of the period within which the decision had to be made (unless the collective agreement provides for different time limits).
The FPSLREB will formally acknowledge receipt of the grievance and forward a copy of the reference to the employer or the deputy head of the department or government organization. If the issue involves the interpretation or application of the Canadian Human Rights Act, the party raising the issue must notify the Canadian Human Rights Commission (CHRC) and must provide a copy of that notification to the FPSLREB and the other party. The CHRC must then, within 15 days of receiving that notification, indicate whether it intends to make submissions on that issue.
The employer has 30 days to provide the FPSLREB with a copy of the decisions that were provided to the grievor at each level of the grievance process.
The FPSLREB will offer the parties the opportunity to participate in mediation at any time during the adjudication process. If the mediation is successful, the grievor can withdraw the grievance.
If there are no issues raised by the parties (requests for clarification, questions of timeliness, etc.) which could delay the process, the matter is then scheduled for hearing, which can be in several months' time. Parties are usually advised at least three months in advance that a matter has been tentatively scheduled for hearing and requested to confirm their availability. The hearing schedule is finalized at least two months beforehand. Not all grievance referrals will proceed to hearing. Some may be determined based on what has been submitted on file.
Where does the burden of proof lie in grievance adjudication cases?
In grievance proceedings involving discipline, such as termination, the onus is on the employer to prove that the action taken was warranted. In such cases, the employer presents evidence first. In cases of alleged disguisedS discipline, the burden of proof rests with the grievor. In grievances against a rejection on probation, the employer must show employment-related reasons for the rejection and the grievor must prove bad faith on the part of the employer. In rejection-on-probation grievances, the employer presents evidence first. In grievances involving the interpretation or application of the collective agreement or arbitral award, the grievor proceeds first.
How long does it take to resolve a grievance case?
The time required to resolve a grievance case once it has been referred for adjudication varies with the case and depends largely on the parties involved. The FPSLREB encourages both parties to continue working towards a settlement throughout the adjudication process since it is preferable that the parties arrive at a satisfactory resolution on their own. The FPSLREB's mediation services can help the parties achieve a settlement without going to adjudication by assisting them to resolve issues in dispute quickly and efficiently.
What type of assistance does the FPSLREB give parties referring a grievance to adjudication?
Those thinking about referring a grievance to adjudication are strongly advised to seek the advice of their bargaining agent or of a private practice lawyer before commencing.
To maintain its impartiality, the FPSLREB plays a completely neutral role throughout all of its processes. This means information is provided in an unbiased fashion, no advice or strategy is given to either party, and no monetary support is provided.
An officer from the FPSLREB's labour relations registry is assigned to each case. This individual will be in contact with the parties to help them move the process forward and to answer procedural questions.
If you are representing yourself, until your case is heard, the only contact you will have is with employees of this division, so it is important to understand what they can and cannot do to help you prepare your case. Please refer to Representing yourself: How we can help for more information. If you are being represented by your bargaining agent or by a private practice lawyer, employees will communicate only with your representative.
What is an expedited adjudication process and who can use it?
Expedited grievance adjudication allows certain grievances to be dealt with without resorting to a full hearing process, thus saving parties time and resources. This method of adjudication has been in use since 1994 and most employers and unions have agreed to use it in specific cases.
In the expedited process, the parties normally file an agreed statement of facts and no witnesses are heard. Oral decisions are given to the parties at the end of the hearing. A short written decision follows within five days. The parties agree that decisions rendered this way are not precedent setting and will not be subject to judicial review.
Either party can apply for an expedited hearing, but for this process to be used, both parties (employer and bargaining agent) must have previously signed a memorandum of understanding with the FPSLREB. Individuals representing themselves may not apply for expedited adjudication.
ABOUT STAFFING COMPLAINTS
Who can file a complaint under the Public Service Employment Act?
Generally speaking, the Public Service Employment Act (PSEA) applies only to departments and agencies for whom the Treasury Board is the employer – that is, the departments listed in Schedule I of the Financial Administration Act (FAA) and the agencies listed in Schedule IV. Since there are a few exceptions to the rule, you should check with your employer or your union representative to determine whether or not the Act applies in your case.
The staffing provisions of the PSEA do not apply to separate agencies named in Schedule V of the FAA, such as the Canadian Food Inspection Agency.
What are my options for making my concerns with a staffing action known and possibly for filing a complaint?
First of all, you may request an informal discussion with the hiring manager to raise any concerns or questions that you might have regarding his/her decision not to consider you for the position. Informal discussion may help you to understand the reasons for the decision. It also allows the manager to correct any mistakes in the process and possibly reconsider the decision.
A formal complaint to the Federal Public Sector Labour Relations and Employment Board (FPSLREB) may be made once the final notification of an internal appointment or proposed appointment has been issued. The grounds for a complaint to the FPSLREB are:
- Abuse of authority in the application of merit
- Abuse of authority in the choice of process (advertised or non-advertised process)
- Failure to assess the complainant in the language of their choice.
The Public Service Commission has the authority to investigate external appointments, concerns related to possible political influence or fraud in a selection process or an internal appointment where appointment authority has not been delegated. Deputy heads have the authority to revoke internal appointments or take corrective action where they have concluded, after investigation, that an error, omission or improper conduct affected the selection for appointment.
What does abuse of authority mean?
The Public Service Employment Act states that any reference in the Act to abuse of authority includes bad faith and personal favoritism. In Tibbs v. the Deputy Minister of National Defence, the Public Service Staffing Tribunal concluded that abuse of authority is more than mere errors or omissions, and that it must involve wrongdoing. In other words, abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority.
The Tribunal also found that the five categories of abuse identified in Principles of Administrative Law (Jones, D. P., de Villars, S. S., 2004) apply to all forms of discretionary administrative decisions. The five categories are:
- 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.
What these five types of abuse all have in common is that Parliament could not have intended to delegate the authority to act in such an outrageous, unreasonable or unacceptable way.
Where they differ, however, is with regard to intent: The first type requires improper intention. In the other types, the delegate may have acted in good faith, but still abused his or her discretionary power.
What types of staffing complaints can be filed at the FPSLREB
Under the PSEA, 4 types of complaint can be heard :
- Internal appointments
- Failure of corrective action
- Lay-offs and
- Revocation of appointment
Who are the « parties » and the « other parties » to a complaint?
The « parties »
The complainant, the deputy head and the Public Service Commission (PSC) – or their representatives – are entitled to be heard by the FPSLREB and are therefore considered "parties". The deputy head (or the PSC, where there is no delegation of staffing authority) is sometimes referred to as the "respondent" to the complaint.
The « other parties »
Under the PSEA, different persons or organizations are given a right to be heard, depending on the type of complaint and are referred to as "other parties" by the FPSLREB. The following list sets out "the other parties" by type of complaint:
- Internal appointments - the person appointed or proposed for appointment [s. 79. (1)]
- Failure of corrective action - the person appointed or proposed for appointment as a result of the implementation of corrective action (s. 85)
- Lay-off - every other employee in the part of the organization where the lay-off occurs [s. 65 (3)]
- Revocation of appointment - no other person has the right to be heard in the case of a revocation of appointment (s. 75).
Other parties are given a right to be heard because they have a direct interest in the outcome of the complaint. For this reason, they must be provided all of the information regarding the complaint so that they may, if necessary, prepare their response to the complainant's allegations or to any request made of the FPSLREB by the complainant or respondent.However, they may choose not to fully exercise this right. Instead, they may choose simply to be kept informed of any developments in the case.
Other parties who choose to fully exercise their right by submitting a reply to a complainant's allegations should familiarize themselves with the complaint process by consulting the FPSLREB's Procedural Guide for staffing complaints or the Public Service Staffing Complaints Regulations.
Will my personal information, such as home address, be disclosed to other parties involved in my complaint?
The FPSLREB does not require a complainant to provide his/her home address on the complaint form. In fact, the FPSLREB encourages complainants to use a business address in order to ensure that their home address is protected.
Complainants should be aware that whatever address they choose to provide to the FPSLREB will be disclosed to all parties to the complaint, as will any other information they include in their complaint document. It is best, therefore, to exercise caution when providing personal or other sensitive information with your complaint.
EXCHANGE OF INFORMATION
What is the purpose of the exchange of information?
The exchange of information is an opportunity for both parties to meet to discuss the matter, listen to each other's concerns and cooperate in disclosing all relevant information.
How should the information be exchanged?
The exchange of information requires more than the transmittal of a list of requested information by one party and copies of the requested documents by the other. Parties involved in the exchange of information should engage in a dialogue. The best way to do this is by a face-to-face meeting or, if not possible, a telephone conversation. The exchange of information is meant to be a "two-way street", where those involved in the process – the complainant, the bargaining agent representative, the hiring manager, a member or members of the selection board, and/or the HR specialist – have an opportunity to explain their point of view and respond to any questions about the staffing process.
2. Exchange of information
Each party is responsible for providing the relevant information to the other party. Each party must communicate with the other party to ask or give information.
3. Type of information
As a general rule, you can ask for information and documents that are relevant to your complaint. Here are some examples of the kind of information you can ask for: the statement of merit criteria for the position at issue, the organization’s human resources plan, the organization’s policy on the choice of appointment process, the results of your assessment, etc.
Am I entitled to receive a copy of whatever I ask for related to the appointment process?
No, the information must be relevant to the complaint. A mere suspicion raised by a party that a document or documents may be relevant amounts to a fishing expedition. In other words, it is not enough to speculate that something might be uncovered if the request for the information is granted.
What information is considered to be relevant for the exchange of information?
In Akhtar v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 26, the Tribunal confirmed that the test in considering a request for an order for provision of information is arguable relevance. It is therefore important that the party requesting the information explain the link between the information requested and the complaint.
For example, where a complainant alleges that he or she was treated differently from the successful candidate and is able to produce enough background information to support the allegation and to demonstrate a clear link to the complaint, the results of the successful candidate may be considered relevant.
What can I do if the other party refuses to provide the information that I have requested?
In some instances – for example, where the release of certain information could threaten national security or endanger a person's safety or affect the validity or continued use of a standardized test – it may not be possible to release the information requested.
However, if you think that the information you have requested is relevant and the other party refuses to provide it, you may ask the FPSLREB to order the other party to produce the information. Your request must be in writing and must include:
- Your name, address, telephone number, fax number and e-mail address;
- The FPSLREB's file number for the complaint;
- A detailed explanation of the reasons for the request;
- Your signature; and
- The date.
You may use the FPSLREB's staffing complaints Form 3 for this purpose.
What factors will the FPSLREB consider when deciding whether to order a party to produce information?
The FPSLREB must be satisfied that providing the information requested will not present any risk to national security or a person's safety or affect the validity of a test.
The FPSLREB will also consider whether the request for information is clear enough to leave no doubt as to what information is being requested. In addition, the FPSLREB must be satisfied that disclosure of the information will not cause undue prejudice to any of the parties.
What kind of information can the FPSLREB order a party to produce?
The FPSLREB will order a party to produce only information that is arguably relevant to the complaint.
Is all personal information protected by the Privacy Act?
Under the Privacy Act, personal information held by a government institution may be disclosed either for the purpose of complying with a subpoena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information.
Since the FPSLREB has the power to compel "any person to produce any documents and things that may be relevant" under section 20 of the Federal Public Sector Labour Relations and Employment Board Act, it may order a party to produce personal information relevant to a complaint.
In addition, the Public Service Staffing Complaints Regulations stipulate that the parties must exchange all information regarding the complaint.
Can the FPSLREB place conditions on the release of information?
Yes, the FPSLREB may attach any number of conditions on the release of information – for example:
- the information must be viewed at a specific location
- the viewing of the information must be overseen by one or more specified persons
- the information must not be photocopied or transcribed; or
- the information may be released only to a party's representative provided that it is not given directly to the party making the request.
Can I use the information obtained as a result of a FPSLREB order for purposes other than the complaint?
No, any information obtained as a result of an order from the FPSLREB may only be used for the purposes of the complaint.
THE COMPLAINT PROCESS
Do I have to identify myself when filing a complaint?
Yes. If the FPSLREB receives a complaint form where the name, contact information and signature of the complainant do not appear, the FPSLREB will dismiss the complaint.
Section 11 of the Public Service Staffing Complaints Regulations requires that a complaint be filed in writing and include, among other things, the complainant's name, address, telephone number, fax number, electronic mail address and signature (or the signature of an authorized representative). The Tribunal has dismissed several anonymous complaints because the complainants did not comply with these requirements.
Will the FPSLREB investigate my concerns about a selection process even if I haven't applied for the job?
No, the FPSLREB is not an investigative body. Rather, it is an independent administrative tribunal with a mandate to render decisions regarding staffing complaints.
There are other possible ways of raising your concerns, however. Under the Public Service Employment Act, the Public Service Commission and deputy heads have the authority to conduct investigations in certain circumstances. For more information on investigations, you may wish to contact the Public Service Commission, your human resources advisor or your union representative.
In addition, under the Public Servants Disclosure Protection Act, public servants may make disclosures of wrongdoing to their supervisor, the Senior Officer in their organization responsible for receiving and dealing with disclosures or directly to the Office of the Public Sector Integrity Commissioner.
Can another person file a complaint on my behalf?
According to the Public Service Staffing Complaints Regulations, either you or your authorized representative may sign the complaint. Your representative should submit both your complaint and a letter signed and dated by you indicating that he/she is authorized to act on your behalf for a specified period of time.
Can a complaint be filed upon receiving a notification of consideration?
No, you cannot file a complaint after the notification of consideration. A complaint may be filed only after the final notification of the appointment or the proposed appointment.
However, at this time, you may request an informal discussion with the hiring manager to discuss his/her decision to eliminate you from further consideration.
How do I file a complaint?
Once you have received notification of an appointment or proposed appointment, a revocation of an appointment or a lay-off, you may file a complaint with the FPSLREB by completing a Notice of Complaint form and sending it to the FPSLREB within 15 days of the notification. A copy of the documentation related to your complaint such as the staffing advertisement, the notification of appointment or proposed appointment, the revocation or the lay-off should be included with your complaint and will be shared with all parties.
In order not to delay the processing of a complaint, the Notice of Complaint form and any other documentation to the complaint should be complete. It is the responsibility of the complainant to provide all the required information. The FPSLREB may contact the complainant to request the necessary information be provided within a certain time frame.
Should I include sensitive or confidential information in my complaint?
Copies of all documents included with the complaint will be sent to the other parties by the FPSLREB. Therefore, it is best to exercise caution when providing sensitive or confidential information with your complaint. It may be more appropriate to disclose such information during the exchange of information or the hearing itself.
In the event that a complainant has submitted his/her complaint and later reconsiders the inclusion of certain information of a sensitive or confidential nature, the complaint should request that the FPSLREB not disclose the particular information in question. The FPSLREB will determine whether the information should be declared confidential. If no such request or determination is made, the FPSLREB is obliged to disclose all the information contained in the complaint file to the other parties.
Can the time limit for filing a complaint be extended?
The 15-day time limit to file a complaint is a strict one. In order to ensure that a complaint reaches the FPSLREB within the 15 days, a complaint should be sent by using the Complaint Form (Form 1) available on the FPSLREB website or by e-mail or fax. An extension of the deadline for filing a complaint may be requested in exceptional circumstances where the FPSLREB finds that it is in the interest of fairness to do so.
It is important to note that the Public Service Staffing Complaints Regulations require that the complaint be signed by the complainant or his/her representative. If you are sending your complaint as a scanned attachment to an e-mail or by fax, make sure to sign it first. Note that if you submit your complaint using the Complaint Form (From 1) via the FPSLREB’s website, your signature will be included when you check the signature box, since the “x” represents your signature.
Is there a time limit for making an allegation of discrimination?
If you wish to raise an issue involving discrimination as defined by the Canadian Human Rights Act (CHRA), it is best to do so at the same time as you file the Notice of Complaint. You must also provide notice to the Canadian Human Rights Commission as soon as possible. Under the PSEA, the FPSLREB has the authority to interpret and apply the provision of the CHRA in the context of a staffing process.
When should I be providing my exhibits (i.e. the documents that will support my case) to the FPSLREB?
Once your case has been scheduled for hearing, you will receive a notice for a pre-hearing conference. At that pre-hearing conference the FPSLREB Member will set a time frame for the exchange of documents between yourself and the other parties. At that point, you should provide the documents you intend to rely on at the hearing to the other parties and they will provide their documents to you. Copies of these documents SHOULD NOT be sent to the FPSLREB.
Documents can be filed as evidence at the hearing and, once accepted by the Member hearing your case, they will be marked as exhibits.
If you send what you intend to file at the hearing (i.e. your exhibits) to the FPSLREB prior to the hearing, please be advised that those documents will not form part of the FPSLREB's official record and WILL NOT be given to or considered by the Member before he or she hears your case.
Once they are admitted into evidence by the Member conducting the hearing, they will form part of the official record and the Member will consider them in rendering his or her decision.
How do I enter my documents into evidence at the hearing?
- 1. The party wishing to make use of a document as evidence provides copies to the witness, the other parties and the Member. Evidence may include documents, maps, charts, diagrams, photos, spread sheets, etc.
- Parties are asked to bring with them to the hearing five copies of any document, chart, spread sheet, etc. they intend to file as an exhibit to ensure that everyone has a copy of the exhibit.
- 2. The Member will ask the parties if there are any objections to the document being made an exhibit before reviewing it. If there is an objection, the Member will hear the parties' submissions and decide whether the document should or should not be accepted into evidence.
- are entered into evidence through a witness. You may have to ask questions to the witness to explain the source, the purpose and the relevance of the document you wish to have marked as an exhibit. This is called laying a proper foundation. This is sometimes necessary when it is not clearly evident why someone would wish to have a particular document marked as an exhibit. Laying a proper foundation may avoid objections from the other parties. If you are representing yourself, you, as witness, may be required to lay the proper foundation for the document you want to have marked as an exhibit.
- 3. If the Member accepts the document into evidence, it is marked as an exhibit with an appropriate number.