Annual Report 2008-2009
Public Service Staffing Tribunal Annual Report
Table of Contents
- Message from the Chairperson
- Looking Back on 2008-2009
- The Registry
- Dispute Resolution Services
- Jurisprudence Established in 2008-2009
- Planning, Communications and Information Management
- Human Resources and Corporate Services
- Appendix 1 – Members’ Biographical Notes
- Appendix 2 – Statutory Responsibilities
- Appendix 3 – The Complaint Process
- Appendix 4 – Staffing Complaint Resolution System
- Appendix 5 – Table of Complaints by Organization
- Appendix 6 – How to Contact the Tribunal
Message from the Chairperson
A brief review of the Tribunal’s decisions to date reveals that abuse of authority in the application of merit is the ground of complaint cited most often in complaints submitted to the Tribunal. The Public Service Employment Act (PSEA) specifies that appointments must be made on the basis of merit and provides for considerable flexibility in human resources management.
In order to ensure that the appointment process is both based on merit and permits public service managers to staff positions, the PSEA strikes a balance between a deputy’s head discretionary authority and his or her accountability. Deputy heads are expected to exercise their discretion in staffing matters reasonably without abusing their authority. Although the PSEA does not define abuse of authority, it does specify that for greater certainty, that it includes bad faith and personal favouritism. It is therefore up to the Tribunal to shape the definition of abuse of authority in a staffing context as it renders decisions.
In its first decisions, the Tribunal has recognized that employees and managers need to understand the concept of abuse of authority. The Tribunal has broadly defined abuse of authority as the improper use of discretionary power in appointment processes. More specifically, the Tribunal has established that abuse of authority requires wrongdoing and is more than a simple error or omission. It has also determined that the staffing authority conferred by Parliament does not permit unreasonable, discriminatory, outrageous or arbitrary actions, and that an abuse of authority can occur even without an improper intention. For instance, the appointment of a person who does not meet the essential qualifications for a position constitutes an abuse of authority regardless of intent, since the appointment was not made on the basis of merit.
In the Tibbs decision, the first complaint heard on the issue of abuse of authority, the Tribunal identified five categories of abuse, which form a useful framework for examining complaints involving abuse of authority. Consistent with this framework, the Tribunal found that an abuse of authority occurred in six of the appointment processes that were the subject of complaints in 2008–2009. The decisions on these complaints are helpful in understanding the concept of abuse of authority and summaries of these cases have been included in this report. The types of abuse of authority identified by the Tribunal were, notably, bad faith with or without improper intention, personal favouritism, refusal to exercise one’s discretion, and reliance upon insufficient material to make an appointment without adequately assessing the merit criteria. The decisions demonstrate that actions constituting abuse of authority often fall into more than one category, and that the categories of abuse of authority referred to by the Tribunal are not mutually exclusive.
These decisions can be accessed on the Tribunal’s website at www.psst-tdfp.gc.ca. In publishing its decisions, the Tribunal provides information to not only the parties to a complaint, but also to all those interested in staffing issues. Employees, managers and human resources professionals alike can use the Tribunal’s decisions as a guide whenever they conduct appointment processes, hold discussions to resolve complaints or present their cases before the Tribunal.
The Public Service Staffing Tribunal (PSST) was set up in December 2005 as part of the new recourse mechanisms established by the PSEA to modernize human resources management in the federal administration. As an independent quasi-judicial body, its mandate is to consider and dispose of complaints. In this capacity, the Tribunal conducts hearings and provides mediation services.
The complaints relate to staffing processes such as appointments, lay-offs, the implementation of corrective measures, and revocations of appointments.
Looking Back on 2008-2009
During 2008-2009, the Tribunal received a total of 821 complaints which represents a 10% increase from the 742 complaints received the previous year. By way of comparison, the number of complaints submitted in 2007-2008 rose by 69%. This would seem to indicate that the number of complaints may be levelling off. Although the volume of complaints may have stabilized, the number of mediation sessions conducted rose by 46%. Of the 175 sessions held this year (compared with 119 last year), 158, or 90%, resulted in a withdrawal of the complaint.
As illustrated by the Registry’s detailed statistics (see tables below), the Tribunal handled 1,214 files over the course of 2008-2009: 821 new complaints and 393 active files carried over from the previous year. It is interesting to note that only 34 complaints proceeded to a hearing. In other words, the vast majority of complaints filed with the Tribunal (97% of all files) were resolved without a hearing.
The percentage of complaints resolved without a hearing rose by 11% in two years, going from 86% in 2006-2007 to 97% in 2008-2009. This increase is due in part to the fact that the parties recognize more and more that, in the long run, resolving a complaint through an informal process is better for them and their work environment than a formal decision by the Tribunal.
The following tables provide a breakdown of the 821 complaints filed with the Tribunal between April 1, 2008 and March 31, 2009. Taking into account files from the previous year that were still active as of April 1, 2008, the Registry processed a total of 1,214 complaints in 2008-2009.
Complaint Statistics – 2008-2009
|Number of complaints in 2008-2009|
|Active complaints from the previous year||393|
|Total number of active complaints during the period||1,214|
|Files closed in 2008-2009|
|Files opened and closed during the period||428|
|Total number of files closed during the period||727|
|Number of complaints active as of March 31, 2009 and carried over to the following year||487|
It should be noted that 56% of complaints received concerned advertised processes, an 11% drop from the previous year. In contrast, 42% of all complaints were related to non-advertised processes, which represents an increase of 12% from 2007-2008.
|Types of complaints in 2008-2009|
|Internal appointments (s. 77 of the PSEA)|
|Revocations of appointments (s. 74 of the PSEA)||6||1%|
|Lay-offs (s. 65 of the PSEA)||1||0%|
During 2008-2009, the Tribunal received a total of 986 motions, 744 (75%) of which involved requests for an extension of the time limit for the exchange of information, the submission of allegations or the reply by the deputy head. During the same period, the Tribunal issued 1,211 letter decisions and 44 decisions with reasons, for a total of 1,255.
|Motions in 2008-2009|
|Extension of time limits||744|
|Orders for provision of information||92|
|Motions to dismiss||150|
|Decisions with reasons||44|
Although the Registry schedules a number of hearings every month, except July, the parties often request postponements for various reasons. As well, a number of hearings are cancelled in cases where the complaint is withdrawn after the notice of hearing has been sent or the pre-hearing conference has taken place. In 2008-2009, the Tribunal held 34 hearings and 64 pre-hearing conferences. A total of 41 complaints were withdrawn after the notice of hearing was issued.
|Pre-hearing conferences in 2008-2009|
|Hearings in 2008-2009|
The Registry receives complaints, opens files and tracks the flow of complaint files from the beginning to the end of the Tribunal’s complaints process.
From left to right : Darquise Lozier (Administrative Assistant), Louise Lapointe (Registry Officer), Natalie Lowe (Registry Officer), Christine Landry (Acting Director, Registry, Operations and Policy), Josée Parisien (Registry Officer), Éric Patry (Registry Officer).
Dispute Resolution Services
All complaints submitted to the Tribunal are automatically referred to mediation unless one of the parties does not wish to participate. In fact, in accordance with section 97 of the PSEA, the parties may take advantage of the Tribunal’s mediation services at any stage of the complaint process. In order for mediation to take place, however, both parties must agree to participate, in which case the Tribunal’s Dispute Resolution Services play a role in resolving the complaint.
The mediation of complaints is conducted by staff mediators and by Tribunal members.
In 2008-2009, a total of 295 complaints were referred to mediation. Of these, 175 mediation sessions were held —154 in English and 21 in French and 90% of these cases were resolved in mediation. Only 17 of the cases where mediation was held did not result in a settlement.
Of the remaining 120 cases referred to mediation, 40 complaints were withdrawn before the mediation session; 28 cases did not proceed to mediation because one of the parties withdrew its consent, and 52 cases were still ongoing at the end of the year. The table below shows the breakdown of mediation cases by region and by outcome.
Mediation in 2008-2009
|Total number of complaints referred to mediation||295|
|Total number of complaints where mediation was held||175|
|Newfoundland and Labrador||3|
|Prince Edward Island||3|
|Number of complaints where a party withdrew consent to mediation||28|
|Number of complaints withdrawn before the scheduled mediation session||40|
|Number of open mediation files as of March 31, 2009||52|
|Number of mediations conducted||175|
|Number of complaints resolved||158 (90%)|
Interest-Based Negotiation and Mediation Training
The Tribunal offers its stakeholders (union representatives, delegated managers or their representatives, staffing officers, and human resources specialists) two and a half days of interactive training on interest-based negotiation and mediation for staffing complaints. The course gives participants a better understanding of the Tribunal’s approach to mediation and prepares them to take part in a mediation process either as a party or as a representative. In 2008-2009, the Tribunal held six sessions—four in English and two in French—in the following locations:
In addition, at the request of various departments and agencies, Dispute Resolution Services delivered six presentations on mediation during the year to explain the steps in the process and its advantages.
As evidenced by the following comments from participants in the mediation process, the work of the Tribunal’s mediators is greatly appreciated:
“The mediator showed compassion and understanding and when needed posed the appropriate questions to keep things moving along in a positive manner.”
“Mediator’s skills were instrumental in reaching a successful mediated resolution.”
“The mediator kept the process friendly, informal and respectful.”
“The mediator was very helpful at diffusing a sensitive and potentially volatile situation.”
“The mediator was clearly impartial and quick to understand the issues.”
The Dispute Resolution Services team conducts mediation sessions and delivers the Interest-based Negotiation and Mediation training offered by the Tribunal.
From left to right : Lorraine Lemay (Administrative Assistant), France Beaudoin (Mediator and Dispute Resolution Specialist), Louis Cormier (Mediator and Dispute Resolution Specialist), Laurent Godbout (Mediator and Dispute Resolution Specialist), Serge Roy (Director, Dispute Resolution), Irene Gauthier (Mediator and Dispute Resolution Specialist), Nathalie Auger (Mediator and Dispute Resolution Specialist), Maryse David (Administrative Assistant).
Jurisprudence Established in 2008-2009
Abuse of Authority
In 2008–2009, the Tribunal rendered six decisions where it found that the respondent had abused its authority in an internal appointment process. These precedents help to provide a clearer picture of what constitutes abuse of authority in the staffing context.
In Bowman et al. v. Deputy Minister of Citizenship and Immigration Canada et al., the Tribunal had to determine, among other things, whether the respondent had abused its authority in assessing the experience of one of the complainants. In the Statement of Merit Criteria, one of the essential qualifications stipulated “significant HQ experience.” The definition of “significant” had been established by the Assistant Deputy Minister, but amended by the assessment board after the original advertisement and Statement of Merit Criteria has been published. The Tribunal found that the assessment board, because it did not have the delegated authority to establish essential qualifications, acted improperly and outside of its authority in amending an essential qualification after the fact. Moreover, the Tribunal found that the assessment board abused its authority by refusing to exercise its discretion to assess whether one of the complainants had significant HQ experience and by mechanically applying a requirement of a minimum number of months over the course of one or two assignments.
In Cameron and Maheux v. Deputy Head of Service Canada et al., the Tribunal found that the respondent acted in bad faith by making a term appointment of less than four months, even though it was well aware that a minimum of six to nine months was required, and by purporting to have a pressing need to fill the position in order to justify a non-advertised process. The decision established that bad faith may include serious carelessness or recklessness that does not require evidence of improper intent. The Tribunal also found that the respondent had abused its authority by relying on insufficient material when it chose to make the appointment without adequately assessing the merit criteria of the appointee.
In Robert and Sabourin v. Deputy Minister of Citizenship and Immigration et al., the evidence confirmed that a number of serious errors had been made — i.e., lack of written rationales; lack of Statement of Merit Criteria; no assessment against merit criteria; failure to meet language proficiency qualification; lack of written scan and improper notification. The Tribunal found that the respondent abused its authority by acting with such serious carelessness as to constitute bad faith and by appointing a person who did not meet all of the essential qualifications for the position.
In Chiasson v. Deputy Minister of Canadian Heritage et al., the respondent changed the instructions for an off-site exam without following up to confirm that the instructions had, in fact, been received. The Tribunal found that the respondent abused its authority by making changes without confirmation, thus demonstrating serious negligence tantamount to bad faith. The Tribunal also found that the respondent abused its authority by relying on inadequate material when marking the complainant’s exam, since it did not consider the fact that the complainant had not received the new instructions in time to write her exam.
In Burke v. Deputy Minister of Department of National Defence et al., the Tribunal found abuse of authority in the application of merit. In this case, the Tribunal determined that the respondent modified the Statement of Merit Criteria after the preliminary screening process, but did not re-assess the candidates against the amended qualifications. In addition, the respondent did not inform the short-listed candidates about the change made to the experience qualification and used an assessment tool that did not assess the amended qualification. Since the assessment board did not apply the criteria it had established in its assessment grid, the Tribunal found that the assessment did not provide a sound basis for concluding that the appointee was qualified for appointment. The Tribunal found that the respondent abused its authority by acting with such negligence as to constitute bad faith.
Finally, in Beyak v. Deputy Minister of Natural Resources Canada et al., the Tribunal found that the assignment in question was actually an acting appointment subject to recourse. The Tribunal concluded that: the respondent acted in bad faith in the choice of appointment process, as evidenced by the circumvention of the Public Service Employment Regulations regarding acting appointments; the written rationale contained deceptive, untrue and incomprehensible explanations and the written rationale for the choice of a non-advertised process was filed without consideration of its content and with the improper intent of rewarding the appointee.
Also in Beyak, the Tribunal determined that the appointments were made on the basis of personal favouritism as the work description did not reflect the actual duties of the position and was used to ensure a higher classification and salary to reward the appointee; the essential qualifications of the position were established and the employee was assessed in such a way as to ensure her appointment without regard to the actual requirements of the position; and the employee did not meet the essential qualifications of the position but was appointed because the manager wanted to reward her. The Tribunal also found that the managers involved abused their authority by acting in bad faith and conducting themselves in an irrational and unreasonable way, which led to the unfair appointments.
These decisions illustrate that the PSEA strikes a balance between a deputy head’s discretion and his or her responsibilities in staffing matters. The PSEA offers a great deal of latitude in human resources management and affords considerable flexibility for staffing and recruitment. However, deputy heads must exercise their discretion reasonably without abusing their authority. It is hoped that these decisions will be used to develop examples of fair and transparent staffing practices and thus avoid cases of abuse of authority in the future.
Beyak v. Deputy Minister of Natural Resources Canada et al.
Neutral Citation: 2009 PSST 0007
Decision Date: 2009-03-03
Abuse of authority; non-advertised appointment process; acting appointment and subsequent indeterminate appointment; assignment and appointment; personal favouritism; bad faith; choice of a non-advertised process; revocation; corrective measures.
Right to complain; personal interest
The complainant alleged personal favouritism and bad faith in the choice of a non-advertised process, the establishment and assessment of the essential qualifications and the tailoring of the job description to obtain a desired classification while requiring work of a different nature.
The respondent denied the allegations and argued that the complainant had no personal interest in the complaint, that there is no recourse in the PSEA against an assignment and that the PSC's policy on notification and the choice of appointment process are reference documents with no legislative authority.
The Tribunal determined that the complainant had a personal interest in the complaint, that the assignment was actually an acting appointment subject to recourse and that there is an obligation under the PSEA for deputy heads to comply with PSC policies respecting the manner of making appointments.
The Tribunal found that the respondent acted in bad faith in the choice of appointment process which was evidenced by the circumvention of the PSER regarding acting appointments; deceptive, untrue and incomprehensible explanations in written rationale; a rationale filed without consideration of its content and an improper intent of rewarding the appointee.
The Tribunal determined that the appointments were made on the basis of personal favouritism as the work description did not reflect the actual duties of the position and was used to ensure a higher classification and salary to reward the appointee; the essential qualifications of the position were established, and the employee assessed, in such a way as to ensure her appointment without regard to the actual requirements of the position; an employee who did not meet the essential qualifications of the position was appointed because the manager wanted to reward her.
The Tribunal also found that the managers involved abused their authority by acting in bad faith and conducting themselves in an irrational and unreasonable way which lead to these unfair appointments.
The Tribunal ordered the respondent to revoke the appointments back to their effective dates. Corrective measures were also ordered.
Burke v. Deputy Minister of Department of National Defence et al.
Neutral Citation: 2009 PSST 0003
Decision Date: 2009-02-09
Abuse of authority; advertised appointment process; assessment tools; experience qualification; bad faith; serious recklessness; revocation; errors and omissions; corrective action.
The complainant alleged that the respondent abused its authority in the application of merit by amending the Statement of Merit Criteria after the assessment of the candidates. He also alleged that the assessment board did not properly apply the merit criteria in assessing the candidates.
The respondent submitted that the modification of the Statement of Merit Criteria after the assessment of the candidates did not constitute an abuse of authority since it had no effect on the assessment of experience. As well, the respondent argued that the selected candidate was the right fit for the position based on his personal suitability and communication skills.
The Tribunal found that amending an Statement of Merit Criteria after the assessment of candidates is a fundamental error in the appointment process. The Tribunal also found that the assessment tool used was flawed in that it did not assess the amended qualification. The Tribunal determined that the assessment board did not properly apply the assessment criteria and there was no reliable evidence to establish that the appointee met the essential experience qualification. The Tribunal concluded that the respondent acted with such serious recklessness as to constitute bad faith.
The Tribunal ordered the deputy head to revoke the appointment.
Cameron and Maheux v. Deputy Head of Service Canada et al.
Neutral Citation: 2008 PSST 0016
Decision Date: 2008-06-20
Abuse of authority; application of merit; choice of a non-advertised appointment process; extension of acting appointments; assessment of qualifications ; word “and”; intent; bad faith; bias; personal favouritism; types of abuse; circumstantial evidence; corrective action.
The complainants alleged abuse of authority in the choice of a non-advertised appointment process and in the application of merit. They alleged personal favouritism towards the appointee. They also alleged that the respondent abused its authority by acting in bad faith and by relying on insufficient material to appoint the appointee with a view to extending her appointment.
The respondent argued that the urgent nature of the situation justified the use of a non-advertised process and that the complainants had failed to prove that this choice of process was tainted of bad faith or revenge.
The Tribunal found that the respondent had acted in bad faith and that the appointment was not based on the merit. Therefore, the respondent abused its authority when it failed to adequately explain the circumstances surrounding its decision to use a non-advertised appointment process to extend an acting appointment, even though it had known for some time that the position would be vacated in the near future. Abuse of authority was also found on the basis that the respondent relied on insufficient material in assessing the appointee since not all the essential qualifications had been assessed and no curriculum vitae or assessment report were filed as evidence. However, personal favouritism was not established by the complainants.
The Tribunal ordered that the respondent:
- Review all appointments made by the delegated manager since the coming into force of the PSEA, in order to ensure that they were in fact based on merit;
- Suspend the staffing authority of the delegated manager pending that review;
- Provide the delegated manager with training to ensure an understanding of the responsibilities and obligations under the new PSEA.
The corrective measures contained in the decision were referred to judicial review.
Bowman et al. v. Deputy Minister of Citizenship and Immigration Canada et al.
Neutral Citation: 2008 PSST 0012
Decision Date: 2008-05-26
Abuse of authority; advertised appointment process; application of merit; essential qualifications; significant experience; equivalencies; fettering discretion; corrective action.
The complainants alleged that the respondent abused its authority in establishing, as an essential qualification, significant headquarters (HQ) experience for a pool of FS-04 positions. The complainants argued it was unnecessary since the work of FSOs abroad or in HQ was sufficiently similar. The complainants also argued that equivalencies (graduate studies and time in HQ as a trainee) should have been accepted.
The respondent submitted that there was a clear link between the Statement of Merit Criteria and the work to be performed at the FS-04 level. It also submitted that the screening was not mechanical, but conducted in a consistent, fair manner and all the candidates were treated equally.
The evidence established that the essential qualification, “significant HQ experience,” meant having charge of a file through a full fiscal or planning cycle, thereby demonstrating a full understanding of how HQ works, and the machinery of government. The Tribunal found that the essential qualification was linked to the work of the FS-04 position. The Tribunal also found that there is no requirement for a deputy head to accept equivalencies for the assessment of essential qualifications.
The Tribunal found that, with respect to one of the complainants, the evidence demonstrated that the assessment board had introduced and applied rigid temporal criteria to an essential qualification that was crafted to be flexible and allow for discretion. In fettering its discretion in this manner, rather than fulfilling the responsibility it was charged with, the assessment board had failed to assess the complainant’s HQ experience in any meaningful way.
Complaints of Bowman and Lupul dismissed; Grundison substantiated.
The Tribunal ordered the respondent to assess Mr. Grundison’s qualifications.
Robert and Sabourin v. Deputy Minister of Citizenship and Immigration et al.
Neutral Citation: 2008 PSST 0024
Decision Date: 2008-09-25
Abuse of authority; non-advertised appointment; extensions of acting appointment; Statement of Merit Criteria; bad faith; serious carelessness/recklessness; improper notification; language proficiency qualification; written rationales; transparent employment practices.
The complainants alleged that the respondent abused its authority by choosing a non-advertised appointment process to extend an acting appointment. The complainants argued that there were a number of employees who were bilingual, qualified and interested in the position. The complainants claimed that the respondent acted in bad faith by extending the acting appointment, even though the appointee did not meet one of the essential qualifications. The complainants submitted that the process lacked transparency since, among other things, the notification was posted three months late.
The respondent argued that the manager was justified in appointing a unilingual employee to a bilingual position. The manager had good knowledge of his unit, and it was his conclusion that he could not fill the position with someone bilingual. With respect to the choice of non-advertised process, the respondent submitted that section 33 of the PSEA provides management with flexibility in the choice of process. The respondent submitted that there was a rationale for conducting a non-advertised appointment process, although it was not in writing. This was an omission, but was not a contravention of the PSEA; it was a contravention of policy. The manager knew that he could use a non-advertised process for a short-term acting appointment, but he had no idea that the appointment would have to be extended twice due to illness.
The Tribunal concluded that the choice of a non-advertised appointment process had been supported by operational circumstances and was not, therefore, an abuse of authority.
The Tribunal determined that a number of serious errors and omissions had occurred during the process which, when taken as a whole, did constitute an abuse of authority. These errors included: lack of written rationales; lack of Statement of Merit Criteria; failure to complete timely assessment of the appointee’s qualifications; failure to demonstrate that the position could not be filled with a person who met the language proficiency qualification; failure of appointee to meet essential qualifications; and, improper notification.
As remedy, the complainants have requested a declaration by the Tribunal that the respondent abused its authority. They have not requested revocation or any other corrective action.
Chiasson v. Deputy Minister of Canadian Heritage et al.
Neutral Citation: 2008 PSST 0027
Decision Date: 2008-10-22
Abuse of authority; advertised appointment process; bad faith; improper result; inadequate material; refusal to exercise discretion; word “unreasonable”; assessment tools; according to same standards; circumstantial evidence; errors and omissions; corrective action.
The complainant alleged that the respondent abused its authority by changing the instructions for the off-site exam without ensuring that she had received the new instructions.
The respondent submitted that the complainant did not present any evidence that the candidates were not treated equally and that the complainant was penalized by the fact that she had not learned about the new instructions. In addition, it stated that no follow-up action was taken to make sure that any of the candidates had received the new instructions and that fact demonstrated that the assessment board’s decision was not made in bad faith.
The Tribunal determined that changing the instructions without following-up constituted serious negligence tantamount to bad faith. The Tribunal concluded that, under the circumstances, the respondent had the obligation to follow up with the complainant to make sure that she had received the new instructions. As such, the respondent’s unreasonable conduct lead to an improper result. Furthermore, the exam as an assessment tool was found to be defective since the instructions had been changed without a follow-up being done. Consequently, the complainant was not assessed on the same basis as the other candidates. The respondent also acted on inadequate material when it corrected the complainant’s exam because it did not consider the fact that she had not received the new instructions. The Tribunal also found that the respondent had refused to exercise its discretion by not examining the complainant’s individual case and taking appropriate action to rectify the error. The Tribunal concluded that there was clearly an abuse of authority in this case.
The Tribunal ordered the respondent to review the procedure used within its department for administering off-site exams used in appointment processes. It was also ordered to establish a procedure to deal with situations when initial instructions to exams are modified once the exam has been distributed to the candidates. It was also ordered to reassess the complainant.
Legal Services staff provides advice to the Tribunal to ensure that its decisions are well reasoned and consistent.
From left to right : Natalie Talbot (Legal Counsel), Mark McDonald (Senior Legal Counsel), Josée Dubois (Executive Director and General Counsel), Rachel Dugas (Legal Counsel), Pauline Bernier (Executive Assistant).
Planning, Communications and Information Management
Given that the Tribunal’s sole mandate is the adjudication and mediation of complaints filed under the PSEA, the Tribunal’s three main program priorities were confirmed at its annual strategic planning session in November 2007:
- Consider and dispose of complaints
- Provide mediation services
- Improve external communications
Two unexpected events occurred during the year, however, and certain adjustments were necessary in order for the Tribunal to meet its objectives for the year. The first was the announcement by the Prime Minister in early April that a horizontal review1 of six organizations with human resources management functions - the Canada Public Service Agency, the Canada School of Public Service, the Public Service Commission, the Public Service Labour Relations Board, the Treasury Board Secretariat (TBS) and the Tribunal - was to be completed by July 1st.
The Tribunal readjusted its priorities in order to conduct a thorough examination of its program activities and related expenditures with a view to ensuring that its services were being delivered effectively and efficiently. As part of the process, the six organizations were to identify lower priority, lower performing programs for possible reallocation of funding to higher priority, higher performing programs within their own organizations or within government as a whole.
On February 6, 2009, the Prime Minister announced the consolidation of the functions of the Canada Public Service Agency and those parts of the TBS dealing with pensions and benefits, labour relations and compensation into the Office of the Chief Human Resources Office within TBS. The mandate of the new Office is to make human resources management across the Public Service more effective and reduce overlap and duplication of roles. Some of the resulting savings were set aside to ensure permanent funding for the Tribunal.
The vacancies created by the departure of two of its five full-time members, including the Vice-President, and one of its four part-time members also had a significant impact upon the Tribunal and its operations. Steps were taken, however, to fill the vacancies as soon as possible; by the end of the year, two part-time members had been appointed.
Despite these challenges, the Tribunal was, for the most part, able to achieve its desired results: Tribunal decisions rendered in 2008 were sound, well reasoned and issued within a reasonable time frame; mediation services, including interest-based negotiation and mediation training were delivered regularly and with much success; and finally, efforts to improve communications, particularly through the establishment of an advisory committee, were undertaken.
In response to requests from departments, agencies and bargaining agents, the Tribunal’s legal services and communications sector developed a presentation to share, with its key stakeholders, the trends and principles that have emerged from Tribunal decisions thus far. In 2008, the presentation was adapted to particular audiences and delivered to 15 different organizations, from the Professional Association of Foreign Service Officers to the Alberta Human Resources Council. A joint presentation was developed and delivered by both departmental and Tribunal staff for Human Resources and Skills Development Canada. Since the first decisions to be substantiated on the grounds of abuse of authority were rendered in 2008, the presentation places considerable emphasis on the emerging definition of this concept.
As well, the Communications sector continued to enhance its existing communications tools and develop new ones. For example, the Tribunal’s website was revamped in order to meet the requirements of Common Look and Feel (CLF) Guidelines 2.0. Tribunal communications staff responded to nearly 100 general enquiries sent by members of the Public Service to the PSST information mailbox at email@example.com. In March, it became possible to fill out the Tribunal’s complaint form on-line and, in April, the Tribunal introduced email subscriptions to provide notification of new Tribunal decisions. By December, there were more than 1,000 subscribers to the email alerts.
Having been added to the Tribunal’s website in December 2007, the Electronic Guide, an interactive guide to the Tribunal’s complaint process, received very positive feedback and proved to be an invaluable resource for employees of the Public Service throughout 2008.
Given the growing number of decisions rendered by the Tribunal, a project was undertaken to produce summaries for each decision. The first summaries to appear on our website will be those for the year 2009; we will then post the remaining years as soon as possible.
In the fall of 2008, the Tribunal contacted several representatives among its main stakeholders to discuss, develop and implement a plan for establishing an advisory committee. The first meeting of the committee will likely be held before the end of 2009 and, as its first order of business, will adopt terms of reference for its modus operandi.
A plan to develop and implement a modern information management system was prepared in February and the technical requirements were identified in March. The content management application (Microsoft Office SharePoint Services 2007) was identified and is gradually being implemented. At the time of writing, the system’s information architecture and service definitions were being finalized and the rules and procedures for the creation, maintenance and control of records using the new system were being tested, as were the automated processes for monitoring the progress of various projects. Training for staff on the use and capabilities of the new system will take place once it is fully operational. It is anticipated that implementation of the system will be completed by the end of fiscal year 2008-2009.
The Planning, Communications and Information Management sector is responsible for preparing the Tribunal’s strategic plan, reporting on results, and managing the Tribunal’s communications plan and information management system.
From left to right : Jacques Fortin (Senior Communications Officer), Michelle Budzinski (Administrative Assistant), Elizabeth Holden (Director, Planning, Communications and Information Management), Stuart MacMillan (Developmental Communications Officer).
Human Resources and Corporate Services
The Tribunal set up a training and development program to enable employees to receive training in various areas of activity. Moreover, as part of the Employee Assistance Program, the Tribunal took advantage of staff meetings to deliver a series of workshops. It also established policies and procedures on safety and finance and developed an integrated human resources and business plan.
Employees in the Tribunal’s Human Resources and Corporate Services sector provide services in the areas of human resources, security, finance, procurement and information technology.
From left to right : Yves Duquette (System Architect), Suzy-Anne Legault (Information Technology Specialist), Natalie Payant (Administrative Assistant), Julie Brunet (Director, HR and Corporate Services), Suzie Beaudoin (Financial Officer), Nathalie Cyr (Financial Services Clerk), Silvia Kunz (Senior Corporate Services Officer).
As indicated in previous reports, the Tribunal has been allocated transitional funding since its creation under the Public Service Employment Act on December 31, 2005. This type of funding was used to develop, implement and administer the new legislative regime. Each year, the Tribunal has made optimal use of its funding. In this context, the Tribunal is pleased to report that, with the implementation of Budget 2009, it will receive more stable, long-term funding, thus enabling it to fulfill its mandate without having to rely on temporary allocations. The Government of Canada will thus be able to achieve its modernization objectives while continuing to provide high-quality services to Canadians.
According to the Tribunal’s financial statements, expenditures totalled $5.5 million in 2008-2009. Approximately $4.1 million, or 76%, was expended on employee compensation and benefits. The remaining $1.4 million, or 24%, was used to cover operating costs related to transportation, professional services, accommodation and facilities for hearings and mediation activities, for example.
|Description||FTEs||Salaries||O & M||Total|
|Adjudication of complaints||17||2,086,429||367,977||2,454,406|
|Net operating cost||37||4,137,132||1,342,442||5,479,574|
|Minus: Adjustments for positions with an impact on the net operating cost but no impact on appropriations||367,002||302,845||679,158|
|Parliamentary appropriations used||3,770,130||1,039,597||4,809,727|
|*Returned to the Consolidated Revenue Fund|
Appendix 1 – Members’ Biographical Notes
Guy Giguère, Chairperson and Chief Executive Officer
A seasoned adjudicator and mediator with over 24 years of experience in the federal public service of Canada, Guy Giguère was appointed Chairperson of the Public Service Staffing Tribunal in March 2005. Mr. Giguère was first a member of the Public Service Staff Relations Board from 1998 to 2000 and became Deputy Chairperson of the Board in 2001. He was reappointed for a five-year period on March 31, 2008. Mr. Giguère began his public service career in 1983 with Employment and Immigration Canada where he provided training and advice on human rights and access to information legislation. He later worked with the Office of the Privacy Commissioner, the Department of Justice and the Privy Council Office. Born in St-Jérôme, Québec, Mr. Giguère obtained a civil law degree (LL.L) from the Université de Montréal and has been a member of the Quebec Bar since 1978. Mr. Giguère is a frequent speaker on mediation and arbitration in the federal public service and trains new members of federal administrative tribunals on the conduct of a hearing. He is also a guest lecturer at the Faculty of Law, University of Ottawa and with the Department of Industrial Relations at the Université du Québec en Outaouais.
Sonia Gaal, Vice-Chairperson
Sonia Gaal was appointed Vice-Chair of the Public Service Staffing Tribunal in August 2005. Ms. Gaal received her civil law degree (LL.L) from the Université de Montréal, completed a Post Graduate Diploma in Labour Law at the University of Alberta and holds an MBA from Athabasca University in Alberta. From 1985 to 1988, Ms. Gaal was a Labour Relations Officer and member of the negotiating team for the City of Edmonton. She later served as a Labour Relations Advisor with the Government of Alberta where she represented the government during arbitration hearings and negotiations. In 1998, Ms. Gaal was appointed to the Alberta Labour Relations Board and, one year later, to the Canada Industrial Relations Board in Ottawa as a full-time member. Ms. Gaal remains an active member of the Law Society of Alberta and the Barreau du Québec. Her mandate expired in September 2008.
Helen Barkley, Full-time member
A graduate of Queen’s University (B.A. Sociology), Helen Barkley commenced her public service career with the National Parole Service. In 1980, she left the public service to attend law school (LL.B., University of Ottawa, 1983), and has been a member of the Ontario Bar since 1985. On her return to the public service in 1985, she worked in several departments doing legislative review. In 1990, Ms. Barkley was appointed as an Appeal Board Chairperson with the Public Service Commission, where she conducted appeal hearings, investigations and boards of inquiry. Since 1998, she has held senior positions in recourse and policy. As part of the modernization process, she participated in the Public Service Commission Advisory Committee working group on co-development and the Deputy Ministers’ working group on staffing recourse. Ms. Barkley was appointed as a full-time member of the Public Service Staffing Tribunal in November 2005. Her mandate as a full-time member of the Tribunal expired in January 2009.
Merri Beattie, Full-time member
Merri Beattie is an experienced human resources professional, with particular expertise in labour relations and staffing. Ms. Beattie began her public service career with Supply and Services Canada and has held positions in management since 1999. Ms. Beattie served on the Privy Council’s Task Force on Modernizing Human Resources Management created in April 2001 to draft a new institutional and legislative framework for human resources management in the public service. Following the adoption of the Public Service Modernization Act (PSMA), Ms. Beattie participated in the planning of PSMA implementation across government departments and agencies. In January 2004, Ms. Beattie was named Director of Human Resources Modernization with Public Works and Government Services Canada. In this capacity, she led the design and implementation of the modernization of the department’s human resources policy frameworks and systems, including those of the new Act. Ms. Beattie became a member of the Public Service Staffing Tribunal in January 2006.
Francine Cabana, Full-time member
Francine Cabana was appointed as a member of the Public Service Staffing Tribunal in November 2005. Ms. Cabana began her career with the Department of Communications in human resources and later became a compensation and benefits specialist with the Canadian International Development Agency. In 1984, she became a union representative with the National Component of the Public Service Alliance of Canada (PSAC) where she argued employee grievances and complaints before various administrative tribunals and developed an expertise in alternative dispute resolution. From 1997 until her appointment to the Tribunal, Ms. Cabana was a PSAC Grievance and Adjudication Officer, representing members before provincial and federal labour relations boards, both during formal hearings and mediation sessions. Her mandate as a member of the Tribunal expired in December 2008.
Ken Gibson, Temporary member
Ken Gibson became a temporary member of the Public Service Staffing Tribunal in January 2006. Mr. Gibson began his career as a researcher with the Science Council of Canada and later worked at the Professional Institute of the Public Service of Canada as both chief research officer and negotiator. From 1985 to 2000, he held a number of senior human resources management positions at the National Research Council, including Director of Employee Relations. Mr. Gibson spent the next five years working as a human resources consultant with expertise in HR strategy, policy and program development, project management, labour relations and change management. Mr. Gibson holds an Honours Bachelors degree in Commerce with specialization in economics and industrial relations.
Robert Giroux, Temporary member
Robert J. Giroux was appointed temporary member of the Public Service Staffing Tribunal in November 2005. Before retiring as President of the Association of Universities and Colleges of Canada in March 2004, Mr. Giroux held the positions of Secretary of the Treasury Board and Comptroller General of Canada, President of the Public Service Commission of Canada, Deputy Minister of Public Works Canada, and Deputy Minister of National Revenue, Customs and Excise. He is a member of the Order of Canada and has received honorary doctorates from several Canadian universities. Mr. Giroux currently serves on the Board of Directors of the Canadian Education Centre Network, Katimavik, and chairs the Board of Directors of the Canadian Council on Learning. He is also a member of the Canada Foundation on Innovation and the Canada Millennium Scholarship Foundation and a Senior Fellow with the faculty of Social Sciences at the University of Ottawa. Mr. Giroux has a BA in Commerce and an MA in Science from the University of Ottawa.
Gordon Roston, Temporary member
Gordon Roston was appointed temporary member of the Public Service Staffing Tribunal in November 2005. From 1980 to 1995, Mr. Roston served the federal public service in many capacities, including Director General, International Marketing, Tourism Canada; Minister-Counsellor, Canadian Embassy, The Hague, Netherlands; Senior Staff Advisor to the Service to the Public Task Force, Public Service 2000 and Senior Advisor, Innovative and Quality Services, Treasury Board Secretariat. Since his early retirement from the public service, Mr. Roston has pursued a particular interest in Alternate Dispute Resolution and is a graduate and Fellow of the Canadian Institute for Conflict Resolution. As a mediator in the Ontario Civil Court Mandatory Mediation Program, he has acted in a wide variety of disputes ranging from breach of contract to harassment and has taught mediation and negotiation principles and practice. Mr. Roston has served as chairman, board member or advisor on a number of community and cultural organizations.
John Korpesho, Temporary member
John M. P. Korpesho began his career in labour relations in 1972 and joined the Manitoba Labour Board in July 1973 as a Board Officer. He then served as Registrar and Vice-Chairperson of the Board from 1978 to 1983 when he became the Chairperson of the Manitoba Labour Board, a position he held until his retirement in 2005. He also served as a Commissioner at the Workers Compensation Board. He has represented Canada on numerous North American Free Trade Agreement (NAFTA) panels. Mr. Korpesho was involved regularly in complex labour-management dispute resolution and on various labour/management committees respecting areas such as construction, labour relations and employment standards review. He has participated in numerous speaking engagements for various interest and professional groups, and been a contributor to a number of publications.
John Hall, Temporary member
John Hall received his law degree from the University of British Columbia in 1980 and began his professional career as an arbitrator in 1985 when he was appointed to the B.C. Labour Relations Board. He served as Vice-Chair for two years before becoming a partner in a major Vancouver law firm. Mr. Hall returned to the Labour Board in 1992 as Associate Chair (Adjudication). He was named Acting Chair in 1996 and resigned two years later to pursue a private arbitration, dispute resolution and training practice. Since that time, he has also received a wide range of part-time appointments to both provincial and federal statutory tribunals and been selected to arbitrate and/or mediate numerous labour and employment disputes since the 1980s, with many of his decisions being reported nationally. He regularly instructs tribunal adjudicators on conducting hearings and writing decisions. Mr. Hall served as a Director of the Council of Canadian Administrative Tribunals, was the founding President and later a Director of the B.C. Council of Administrative Tribunal and, since 1999, has been the Secretary of the B.C. Arbitrators Association. Mr. Hall was appointed to the Public Service Staffing Tribunal as a part-time member on July 30, 2008.
Appendix 2 – Statutory Responsibilities
The Public Service Employment Act requires or permits the Tribunal to undertake the following activities:
- consider and dispose of complaints presented to the Tribunal [subs. 88(2)];
- in the case of a founded complaint involving a lay-off of an employee, set aside the decision of a deputy head to lay off the employee and order the deputy head to take any corrective action that it considers appropriate, other than the lay-off of another employee [subs. 65(4)];
- in considering whether a complaint against a lay-off is substantiated, interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value [subs. 65(7)];
- in the case of a founded complaint involving a revocation of an appointment, order the Public Service Commission or the deputy head to set aside the revocation [s. 76];
- in the case of a founded complaint involving an internal appointment, order the Public Service Commission or the deputy head to revoke the appointment or not to make the appointment and to take any corrective action that it considers appropriate [subs. 81(1)];
- in considering whether a complaint against an internal appointment is substantiated, interpret and apply the Canadian Human Rights Act, other than its provisions relating to equal pay for work of equal value [s. 80];
- in the case of a complaint involving a corrective action ordered by the Tribunal, order the Public Service Commission or the deputy head to revoke the appointment made as a result of the implementation of the corrective action, or not to make the appointment, and give the Commission or the deputy head any directions that it considers appropriate with respect to the implementation of the corrective action [s. 84];
- provide mediation services at any stage of a proceeding in order to resolve a complaint [subs. 97(1)];
- summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner and to the same extent as a superior court of record [par. 99(1)(a)];
- order that a hearing be conducted using any means of telecommunication that permits all persons participating to communicate adequately with each other [par. 99(1)(b)];
- administer oaths and solemn affirmations [par. 99(1)(c)];
- accept any evidence, whether admissible in a court of law or not [par. 99(1)(d)];
- compel, at any stage of a proceeding, any person to produce any documents and things that may be relevant [par. 99(1)(e)];
- subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of an employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliances or articles in the premises and require any person in the premises to answer all proper questions relating to a complaint [par. 99(1)(f)];
- summarily dismiss any complaint that, in its opinion, is frivolous or vexatious [subs. 99(2)];
- decide a complaint without holding an oral hearing [subs. 99(3)];
- render a decision on a complaint and provide a copy of it, including any written reasons, and any accompanying order to the Public Service Commission and to each person who exercised the right to be heard on the complaint [s.101];
- make regulations respecting complaint time limits and procedures, procedures for the hearing of complaints, time limits and procedures for notices and other documents, notice of an issue to the Canadian Human Rights Commission and the disclosure of information [s.109];
- prepare and submit an annual report to Parliament through the Minister of Canadian Heritage regarding activities during the fiscal year [subs. 110 (1)];
- use any services and facilities of departments, boards and agencies of the Government of Canada that are appropriate for the operation of the Tribunal [subs. 93(2)].
Appendix 3 – The Complaint Process
Appendix 4 – Staffing Complaint Resolution System
Appendix 5 – Table of Complaints by Organization
|Agriculture and Agri-Food Canada||16||2%|
|Atlantic Canada Opportunities Agency||1||0%|
|Canada Border Services Agency||47||6%|
|Canada Public Service Agency||1||0%|
|Canada Revenue Agency||1||0%|
|Canada School of Public Service||2||0%|
|Canadian Grain Commission||1||0%|
|Canadian International Development Agency||5||1%|
|Canadian Space Agency||3||0%|
|Citizenship and Immigration Canada||33||4%|
|Correctional Service of Canada||72||9%|
|Courts Administration Service||2||0%|
|Fisheries and Oceans Canada||24||3%|
|Foreign Affairs and International Trade Canada||18||2%|
|Human Resources and Social Development/Human Resources and Skills Development||67||8%|
|Immigration and Refugee Board of Canada||6||1%|
|Indian and Northern Affairs Canada||22||3%|
|Indian Residential Schools Resolution Canada||1||0%|
|Library and Archives Canada||1||0%|
|National Energy Board||1||0%|
|Natural Resources Canada||1||0%|
|Office of the Chief Electoral Officer||3||0%|
|Public Health Agency of Canada||3||0%|
|Public Prosecution Service of Canada||7||1%|
|Public Service Commission||4||0%|
|Public Works and Government Services Canada||46||6%|
|Royal Canadian Mounted Police||10||1%|
|Veterans Affairs Canada||4||0%|
|Western Economic Diversification Canada||1||0%|
* These complaints involve organizations not subject to the PSEA.
** For simplicity, the percentages are rounded to the nearest integer, thus creating a slight discrepancy in the total.
Appendix 6 – How to Contact the Tribunal
Public Service Staffing Tribunal
240 Sparks Street, 6th Floor West
Ottawa, ON K1A 0A5
A/Director, Operations, Registry and Policies
Director, Planning, Communications and Information Management
Director, Dispute Resolution
Director, Human Resources and Corporate Services
1 Horizontal reviews examine spending with a function, government priority or theme across two or more organizations; strategic reviews look at spending within one department.