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Beyak v. Deputy Minister of Natural Resources Canada et al.

Application for judicial review granted
Link to Full text

Neutral Citation:  

2009 PSST 0007


Decision Date:  

2009-03-03



Application for judicial review filed with respect to corrective measures only. The merits of the decision were not contested. The judicial review was allowed and the corrective measures ordered by the Tribunal at paragraphs 200, 201 and 202 were set aside. The matter on corrective measures was remitted back to the Tribunal.
An amended Reasons for Decision was issued please see 2009 PSST 0035

Keywords:

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.

Preliminary issue:

Right to complain; personal interest

Summary:

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.

Decision:

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.

Complaints substantiated.

The Tribunal ordered the respondent to revoke the appointments back to their effective dates. Corrective measures were also ordered.