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2009 PSST 0025
Preliminary matter: request to reconvene hearing; procedural fairness; Tribunal master of its proceedings; case to be met.
Abuse of authority; internal non-advertised appointment process; application of merit; pool of candidates not used; choice of a non-advertised appointment process; lack of notification of the initial acting appointment; actions subsequent to the filing of the complaint; bad faith; discrimination on the basis of family status; legal test and evidentiary requirements for a prima facie case of discrimination; definition of "family status"; assessment of complainant based on assumptions; intent; personal favouritism; correctives measures.
The respondent requested that the hearing be reconvened based on procedural fairness, specifically on the right to be heard to allow the respondent to introduce evidence on an issue of discrimination. The request was opposed by the complainant considering the respondent had many opportunities to file its evidence. The Tribunal determined it is master of its proceedings, which includes post-hearing matters. After having considered all the facts pertaining to this issue, the Tribunal found that the respondent had failed to show that there was sufficient merit to reconvene the hearing as the respondent was well aware of the case to be met. The Tribunal also determined that the exact nature of the evidence to be introduced by the respondent was unclear, and that further delays would be unfair to the parties. Accordingly, the Tribunal decided not to reconvene the hearing.
The complainant alleged that the respondent abused its authority by choosing a non-advertised process and not using an established pool of candidates to staff a Team Leader position. She pointed out that serious errors occurred which led to an abuse of authority, such as not posting the initial six-month appointment. The complainant also argued that she was not selected because of her family obligations, which constituted a prima facie case of discrimination on the basis of family status. Accommodation was not discussed with her. She further alleged that the circumstantial evidence has established that the successful candidate was appointed on the basis of personal favouritism, adding that the appointment cannot be made simply on the basis of the delegated manager's knowledge of the appointee.
The respondent denied any abuse of authority in the choice of a non-advertised appointment process; the PSEA provides that it has discretion to use an advertised or non-advertised process. The respondent submitted that the PSC policies are not legally binding under the PSEA, and that the pool did not have to be used as it is an administrative tool which is not binding for staffing purposes. The respondent argued that failure to post a notice had nothing to do with the choice of an appointment process. The respondent argued that the complainant had not established a prima facie case of discrimination; that it considered every request to accommodate any employee with family obligations and that family status was not a factor in the decision.
In response to the issue of personal favouritism, the respondent submitted that no evidence was presented to suggest that anything other than merit motivated the process; that the successful candidate was appointed on the basis of knowledge, abilities, experience and personal suitability and on operational needs. The respondent further argued that the appointee's qualifications were not the issue since the allegations of abuse of authority relate to the choice of process.
The Public Service Commission (PSC) submitted that intent is not a requirement for a finding of discrimination and a finding of discrimination does not amount to a finding of abuse of authority under the PSEA. The PSC did not take a firm position to on whether discrimination occurred in this case as it was not present at the hearing. However, it considered that the complainant may have shown a prima facie case of discrimination.
The Canadian Human Rights Commission (CHRC) stated that if the Tribunal concluded that the respondent made assumptions about the complainant being unable or unwilling to take various duties because of her child care responsibilities, then it should find that the respondent has not adhered to the requirements of the Canadian Human Rights Act.
The Tribunal found that the overall evidence did not establish that the rationale was unfounded, unreasonable or misleading, and that the complainant had not demonstrated that the rationale failed to justify the use of a non-advertised process. Taken as a whole, some errors, actions and omissions - including the respondent's failure to meet its notification obligations - demonstrate serious carelessness or recklessness amounting to bad faith and abuse of authority.
The Tribunal enunciated the legal test and evidentiary requirements for a prima facie case of discrimination based on family status. The Tribunal concluded that the complainant had established a prima facie case of discrimination since the respondent assumed that the complainant was unable to work flexible hours and overtime because of her family obligations. Once a prima facie case has been established, the onus shifts to the respondent to provide a reasonable explanation or to establish a bona fide occupational requirement (BFOR) defence. The respondent did not submit a BFOR defence but explained that it considers every request to accommodate any employee with family obligations. The respondent's explanation for its prima facie discriminatory conduct was not reasonable given the facts of this case. The Tribunal found that the respondent failed to establish that it could not accommodate the complainant to the point of undue hardship.
The Tribunal found that the PSC's interpretation on intent would mean that the PSC could appoint or lay off an employee in an unreasonable or discriminatory way if it was done unintentionally or without any improper intention. The Tribunal stated that Parliament did not vest the PSC with the authority to act in this manner. The Tribunal further found that, by discriminating against the complainant, the respondent abused its authority in the application of merit.
As for the allegation of personal favouritism, the Tribunal found that the parties were fully aware that the complaint related to the issue of merit. The Tribunal stated that the qualifications listed in the Statement of Merit Criteria were not assessed when the pool was established. The Tribunal found that the respondent provided sufficient evidence of the assessment of the qualifications and abilities of the successful candidate against the merit criteria; the complainant has not established that the successful candidate was appointed to the position on the basis of a personal favouritism.
The Tribunal has no jurisdiction to order the respondent to provide the complainant with an opportunity for an acting assignment. The Tribunal recommends that the respondent consult with the CHRC to assess whether its delegated managers need training on discrimination and, specifically, on discrimination and family status. With respect to the finding of bad faith, it is essential that the respondent take measures to ensure that in the future, notifications of acting appointments of four months or more are made as required.
The Tribunal ordered the respondent to assess the complainant with regard to her needs for accommodation in relation to her family obligations.