Staffing Complaints - Frequently Asked Questions
- To what Organizations does the PSEA apply?
- 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?
- Who are the parties to a complaint?
- What rights do "other parties" have?
- Do "other parties" have to participate in the process?
- 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?
- Who should initiate the exchange of information?
- How should the information be exchanged?
- What kind of information can I ask for?
- 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?
- Would information regarding the successful candidate(s) be considered arguably relevant?
- Does "information" refer only to written documentation?
- 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 order a party to provide me with an admission or an acknowledgement concerning an issue raised in my complaint?
- 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?
- What happens if the Notice of Complaint form is incomplete?
- Should I include sensitive or confidential information in my complaint?
- Can the time limit for filing a complaint be extended?
- How do I go about requesting an extension?
- Is there a time limit for making an allegation of discrimination?
- What can I do if I am not satisfied with a decision of the FPSLREB?
- Who will mediate complaints at the FPSLREB?
- Is mediation a mandatory step in the complaint process?
- Is the mediation process confidential?
- What happens if the Terms of Settlement are not respected by one of the parties
Preparing for the Hearing
- 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?
To what Organizations does the Public Service Employment Act apply?
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 does not define abuse of authority, but states that any reference in the Act to abuse of authority includes bad faith and personal favouritism. 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 by David Philip Jones and Anne S. de Villars in Principles of Administrative Law (Toronto : Thomson Carswell, 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.
Who are the parties to a complaint?
The Public Service Employment Act sets out the parties with a right to be heard for each of the four types of complaints:
- Internal appointments
- Failure of corrective action
- Lay-offs and
- Revocation of appointment
In all cases, 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.
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).
What rights do "other parties" have?
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.
Do "other parties" have to participate in the process?
No, other parties have the right to be heard, but 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. For this reason, the explanatory notes at the top of the FPSLREB's staffing complaint form read as follows:
3. The addresses you provide will be disclosed to all parties to the complaint. (A business address is therefore preferable).
4. A copy of the complaint as well as any supporting documentation will be forwarded to all parties.
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 complaint, listen to each other's concerns and cooperate in disclosing all relevant information.
Who should initiate the exchange of information?
Both parties have a responsibility to provide the other with information pertinent to the complaint. Either party may contact the other to provide or request 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.
What kind of information can I ask for?
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.
Would information regarding the successful candidate(s) be considered arguably relevant?
It depends on the nature of 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.
Does "information" refer only to written documentation?
No, it also refers to any explanations provided orally in person or over the phone.
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 order a party to provide me with an admission or an acknowledgement concerning an issue raised in my complaint?
No, the FPSLREB does not have the power to compel a party to provide another party with what may amount to an admission or acknowledgement. However, a party could choose to do so.
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.
What happens if the Notice of Complaint form is incomplete?
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 canned 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.
How do I go about requesting an extension?
Generally speaking, requests or "motions" – such as a request to extend a time limit – may be presented to the FPSLREB at any time before a decision is rendered with respect to a complaint.
Motions presented to the FPSLREB prior to a hearing are made in writing and should specify what is being requested and why. The party presenting the motion must notify the other parties as soon as possible of the intent to present a motion, as the other parties have a right to provide their comments.
A motion may also be presented orally during the course of a hearing – for example, a party may request an adjournment due to unforeseen circumstances. Reasons for the request must be provided.
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.
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. General information about judicial review applications can be found on the Court's website.
Information about locations and contact information for Courts Administration staff can be found at the Federal Court's Contact Us page.
Who will mediate complaints at the FPSLREB?
Mediation sessions are conducted by mediators from the Staffing Mediation 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 a mandatory step in the complaint process?
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 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.
Preparing for the Hearing
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.