In what context can I use the staffing recourse process?
The Public Service Commission’s staffing recourse applies specifically to advertised and unadvertised internal appointment processes, and in particular to unsuccessful candidates who participated in such competitions or are within the area of selection in the case of an unadvertised process.
When would I be informed of the appointment and what recourse is available to me?
The notification process consists in communicating the appointment decision as well as the deadlines for any applicable forms of recourse. It occurs in two stages: during the staffing process, so as to allow candidates who have been eliminated from further consideration to be informed of that fact and to avail themselves of the informal discussion recourse; and at the time of final appointment, when it opens up recourse to the Public Service Staffing Tribunal (PSST) by providing the name of the qualified individual who has been appointed or proposed for subsequent appointment as well as deadlines for filing complaints.
What is the purpose of informal discussion?
This informal recourse mechanism gives candidates who were not selected an opportunity to understand the reasoning behind the decision to eliminate them from consideration and to exchange views with the manager or the selection panel. This mechanism affords managers an opportunity to correct any errors or oversights that may have occurred before any final decision is made. Informal discussion is not mandatory, but it could be an opportunity for you to air your views and make note of the employer’s arguments, which could be useful should you decide to proceed with a formal complaint.
The informal discussion mechanism in no way limits your right to subsequently submit a formal complaint to the PSST.
For more information on informal discussion:
Questions and answers on the informal discussion process are available at:
Will I have access to all of the information relating to the competition during informal discussion?
The candidate may receive information on his or her performance and on the manner in which the decision was made, but not on the results of other candidates. If you feel that you are missing information that would help prove your allegations, however, you can ask for more-elaborate information as part of a complaint made to the PSST or in an access to information request.
What is the deadline for making a complaint to the PSST?
A complaint must be received by the PSST no later than 15 days after the day on which the complainant receives notice of the lay-off, revocation, appointment or proposed appointment to which the complaint relates, or 15 days after the date specified in the notice, if it is a public notice (section 10 of the Public Service Staffing Tribunal Regulations).
What are the possible reasons for making a complaint to the PSST?
Complaints may be made to the PSST in respect of four situations:
- 1) Internal appointments:
- abuse of authority in the application of merit criteria;
- abuse of authority in the choice of process (advertised or non-advertised);
- failure to assess a candidate in the official language of his or her choice (subsection 77(1) of the Public Service Employment Act (PSEA)).
- 2) Failure of corrective action: Complaint on the grounds that a person was not appointed or proposed for appointment by reason of an abuse of authority in the implementation of corrective action following a substantiated complaint (section 77 of the PSEA) against an internal appointment (section 83 of the PSEA). This complaint may be filed by:
- the person who filed the original complaint;
- the person originally proposed for appointment or appointed;
- any person directly affected by the implementation of the corrective action.
- 3) Layoff: Complaint of abuse of authority in selecting the complainant for layoff (subsection 65(1) of the PSEA).
- 4) Appointment revoked in an internal appointment process by the Public Service Commission or by the deputy head: Complaint for unreasonable revocation (section 74 of the PSEA) by any person involved (subsections 15(3), 67(1) or 67(2) of the PSEA).
The PSST may also interpret and apply the Canadian Human Rights Act (CHRA) when it is asked to rule on the discriminatory aspects of an internal appointment or a layoff (subsection 65(7) and section 80 of the PSEA). The allegation of abuse of authority could therefore be based on one of the prohibited grounds of discrimination set out in the CHRA, namely race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, mental or physical disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
To find out more about prohibited grounds of discrimination, visit the Canadian Human Rights Commission website.
What is meant by “abuse of authority?”
Abuse of authority may relate to the assessment of merit or the choice of an advertised or non-advertised internal process.
Although the new legislation does not contain a definition of the expression “abuse of authority,” it does stipulate that the concept includes bad faith and personal favouritism (subsection 2(4) of the PSEA).
The concept of abuse of authority will be fleshed out as the PSST rules on complaints brought before it and adds to case law. Each complaint will be resolved individually, based upon the facts at hand. Here is an indication, however, of what might be deemed to constitute abuse of authority:
- In Jeannette Tibbs v. the Deputy Minister of National Defence, the 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:
- 1. 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).
- 2. When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters).
- 3. When there is an improper result (including unreasonable, discriminatory, or retroactive administrative actions).
- 4. When the delegate exercises discretion on an erroneous view of the law.
- 5. 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.
Additional information on the concept of abuse of authority may be found in the PSST’s decisions: http://psst-tdfp.gc.ca/article.asp?id=2846.
How must a complaint be filed?
The complainant may use a complaint form (which is available on the PSST website) to make his or her complaint. While use of this form is not mandatory, a complaint must be filed in writing and must include the information required under section 11 of the Public Service Staffing Tribunal Regulations. Additional information on this subject is available at:
To whom must the complaint be addressed?
The complaint must be addressed to the Executive Director of the PSST as follows:
- Executive Director
Public Service Staffing Tribunal
240 Sparks Street, 6th Floor West
Ottawa, Ontario K1A 0A5