A complaint pertaining to the outcome of an internal FS staffing competition would be officially described as a staffing complaint that pertains to an internal appointment process. The Public Service Employment Act specifies who has a right to file a staffing complaint pertaining to an internal appointment process:
- Any unsuccessful candidate in the area of selection in an advertised appointment process; or
- Any person in the area of selection in a non-advertised appointment process.
What this means is that, while PAFSO is happy to assist individual members by answering questions and by both assisting and representing members who choose to file a complaint, it is not able take direct action on its own. Any action must be taken by the individual (or individuals) who have been directly affected by the outcome of the competition.
It is important to know that you are entitled to file a staffing complaint without consulting with PAFSO, if you choose to do so. The staffing complaints forms can be found on the Public Service Labour Relations and Employment Board website here. PAFSO is not notified by the Board if you choose to file a complaint on your own.
The Procedural Guide for Staffing Complaints published by the Public Service Labour Relations and Employment Board states that the grounds for complaint pertaining to an internal appointment are one or more of the following:
- that the respondent (employer) abused its authority in the application of merit;
- that the respondent (employer) abused its authority in the choice of process between advertised and non-advertised;
- that the complainant was not assessed in the official language of the his or her choice
What this means is that in order for your complaint to be successful, you must be able to prove to the Public Service Labour Relations and Employment Board that either the employer abused their authority while assessing the merit of your candidacy, abused its authority when choosing to advertise or not advertise the competition or that you were not assessed in your official language of choice.
Additionally, if you can show that the Employer has failed in its duty to accommodate your circumstances, this can constitute discrimination under the enumerated grounds of the Canadian Human Rights Act, up to the point of undue hardship.
The onus of proof for staffing complaints is the same that applies in all civil cases in Canada, which is on the balance of probabilities. The Board reviews the evidence and decides which version is most probably true. Should the evidence be found to be evenly balanced, the complaint would be dismissed due the burden of proof resting on the complainant.
Abuse of authority is more than mere errors and omissions. Abuse of authority must be found to be:
- improper intention in mind (unauthorized purpose, in bad faith, or on irrelevant considerations)
- acting on inadequate material (lack of evidence or ignoring relevant matters)
- improper result (including unreasonable, discriminatory, or retroactive administrative actions)
- erroneous view of the law
- refusing to exercise discretion by limiting the ability to consider each case with an open mind
Abuse of authority always includes improper conduct, but the degree to which the conduct is improper will determine whether there was abuse of authority (minor errors are permitted). In some cases, actions were in good faith, but the number of errors or omissions equates to an abuse of authority.
It is important to note that, regarding abuse of authority, it is not enough for complainant to merely feel or state that they were subject to abuse of authority, they must prove to the Public Service Labour Relations and Employment Board that they were not appointed to a position specifically due to abuse of authority.
The employer has a duty to accommodate employees to avoid discrimination under the enumerated grounds of the Canadian Human Rights Act, up to the point of undue hardship. If, for example, a staffing process is launched with an essential requirement of twelve months experience in a diplomatic mission abroad, and an employee is unable to meet that criterion because they ended a posting to take parental leave, that employee can request accommodation, in the form of an exemption from that requirement, for family status. An employee who has been unable to go on posting due to health issues could seek a similar accommodation due to disability. Such requests must be made at the beginning of the application process and, if denied, could provide grounds for a complaint to the Federal Public Sector Labour Relations and Employment Board (FPSLREB).
While there used to be a ranking system in place, based on relative merit whereby the hiring manger was required to appoint the top-ranked candidate in a pool first and then the second-ranked and so on, that system is no longer in place. Once a qualified pool of candidates has been established, managers now have considerable discretion to choose the person who not only meets the essential qualifications, but is the right fit based on additional asset qualifications, current or future needs, and/or operational requirements. Essentially, once a qualified pool has been established, as long as there is no abuse of authority, the employer can appoint whomever they like from within the pool.
There is no process in place to file a group staffing complaint – the Public Service Labour Relations and Employment Board only allows for staffing complaints to be filed by individuals. That being said, if it became apparent to the Board that a number of complaints pertained to the same concern, it is possible that the Board could (if they chose to) group multiple complaints together at the hearing stage.
STEP 1. Consult with PAFSO
As stated above, while not an absolute requirement, we suggest that you contact PAFSO and request to discuss your concerns with a PAFSO Labour Relations Advisor. A PAFSO Labour Relations Advisor can help you assess the likelihood that your complaint will lead to a decision in your favour and, if you ultimately choose to file a complaint, guide you through the complaint process and act as your representative, as needed.
STEP 2. File Your Complaint
File and submit your complaint to the Public Service Labour Relations and Employment Board. The staffing complaints forms can be found on their website here. It is important to note that a complaint pertaining to an internal appointment must be filed within 15 calendar days (not working days) of the date on which the notice of appointment was received by the complainant.
STEP 3. Wait for the Board to Acknowledge Receipt of Your Complaint
STEP 4. Wait for the Board to Conduct its own Internal Review of Your Complaint
The Board may elect to move a complaint forward or, on its own accord, dismiss a complaint at the initial review stage for a number of reasons, including:
- the complaint does not fall within its jurisdiction;
- the complaint is substantially incomplete (e.g., the complaint is filed anonymously or failed to include the complainant’s contact information);
- the complaint is trivial, frivolous, vexatious was made in bad faith
It is important to understand that the vast majority of complaints are dismissed at this stage.
STEP 5. Exchange of Information with the Employer
The complainant and respondent (employer) are required to exchange all relevant information regarding the complaint. The exchange of information is in place to facilitate the early resolution of the complaint by providing an opportunity to meet and discuss the nature of the complaint and share any relevant information as soon as possible after the complaint has been filed. The employer is permitted to use the information provided to request that the complaint be dismissed.
STEP 6. Provide Written Allegations to the Board, Respondent and Other Parties (if applicable)
This is an opportunity for the complainant to provide more information pertaining to their complaint that was not included in their original filing (via the complaint form).
STEP 7. Wait for the Board to Schedule a Hearing
STEP 8. Participate in a Pre-Hearing Teleconference or Videoconference
STEP 9. Participate in the Hearing
STEP 10. Await the Decision of the Board.
For a staffing complaint concerning an internal appointment, while the Public Service Labour Relations and Employment Board may order corrective action such as ordering the employer to revoke an appointment and/or revisit a competition, they cannot determine who gets appointed. The Board cannot order an employee to be appointed. Only the Public Service Commission can offer an appointment.
If a complaint is dismissed by the Board during its internal review process, the complainant will likely be notified of the Board’s decision in a matter of a few months from the date that their original complaint was filed. If a complaint moves all the way to the hearing stage, the whole process is likely to take 6–12 months (longer in some cases).
Public Service Labour Relations and Employment Board Procedural Guide for Staffing Complaints
Individual advice is available by contacting PAFSO at (613) 241-1391 or info@pafso-apase.com