STAFFING COMPLAINTS

The Public Service Employment Act (PSEA) is the legislation that contains the principles and conditions governing the recruitment and appointment of personnel in the federal public service.

It also deals with other aspects of employment in the public service such as recourse, layoff, priority for appointment and political activity. The Act reinforces the values and principles inherent in the staffing process that are intended to:

• safeguard, protect and enhance the integrity of the public service;
• maintain and preserve a highly competent and qualified public service; and
• ensure that the public service is non-partisan, free of discrimination and that its members are representative of Canadian society.

The PSEA is important in that it governs both the process and recourse to appointments and deployments. These two subjects — appointments and deployments under the PSEA — are dealt with in other fact sheets in this Tool Kit.

In accordance with the Public Service Employment Act, the Public Service Commission may authorize a deputy head to make appointments.

Appointments are made on the basis of merit. Merit means the person to be appointed meets the essential qualifications (i.e. not all) for the work to be performed as established by the deputy head. This rather vague definition includes:

• official language proficiency;
• any additional qualifications that the deputy head may consider to be an asset for the work to be performed, at that time or in the future;
• any current or future operational requirements by the organization that may be identified by the deputy head; and
• any current or future organizational needs that may be identified by the deputy head.

It is not deemed to be offensive to the merit principle if only one person is considered for appointment.

While the language in the Public Service Employment Act gives the Public Service Commission the authority to appoint, the Act presumes that the PSC can — and will — delegate the authority to deputy heads. The PSC does retain the ability to monitor and audit staffing activities and can remove the delegated authority. In turn, the deputy head can delegate that authority down to the lowest-possible managerial level. In effect, this means that managers far closer to the front line than was the case in the past will be making appointments.

The Public Service Commission is also responsible for conducting investigations relating to external appointment processes; non-delegated internal appointment processes; appointment processes where there is a reason to believe that an appointment was not free from political influence; and appointment processes where there is a reason to believe that fraud may have occurred.

The Public Service Employment Act gives authority to a Deputy Head to deploy employees to or within the Deputy Head’s organization.

A deployment means the transfer of a person from one position to another within an occupational group or, unless excluded by Treasury Board regulations, between occupational groups. A deployment is not an appointment. The deployment of a person may not (a) constitute a promotion or (b) change a person’s period of employment from a specified term to indeterminate status.

Departments and agencies, therefore, may develop their own deployment policies to provide guidance, based on the staffing values and principles, effective human resources planning and resolution of deployment concerns through the informal conflict management process, for consistency in application.

No person may be deployed without his or her consent unless (a) agreement to deploy is a condition of employment or (b) the deputy head of the organization in which the person is employed finds, after investigation, that the person has harassed another person in the course of his or her employment and the deployment is made within the same organization.

Deployments should not be used as a disciplinary measure. But in the case of harassment, a deployment can be made without the consent of the employee, if, after investigation, the deputy head establishes that a person has harassed another. The deployment is separate and apart from the disciplinary action as a consequence of the finding of harassment.

Deployments may be grieved at the final level of the grievance procedure. However, the only issue that can proceed to adjudication is whether the deployment was made without the employee’s consent.

A managerial or confidential exclusion under the Federal Public Sector Labour Relations Act (FPSLRA) refers to a position — rather than an employee — being excluded from the bargaining unit.

A position is excluded because the duties and responsibilities assigned to the position are deemed by the Federal Public Sector Labour Relations and Employment Board (FPSLREB) to warrant exclusion.

The process begins with the department or agency proposing, to both Treasury Board and the USJE, positions it believes should be excluded. Consultation then takes place between the department or agency and the USJE to determine if there is agreement to the proposed exclusions. The USJE forwards the proposed exclusion(s) with relevant documentation to the local and regional vice- president affected. The USJE then advises the Public Service Alliance of Canada, in its role as bargaining agent, as to which (if any) positions are acceptable.

Should the union side agree to an exclusion, the documentation is prepared and the position is excluded from the bargaining unit. Should there be no agreement, the parties make their respective cases before the Federal Public Sector Labour Relations and Employment Board. The FPSLREB will either confirm or revoke the exclusion.

Those employees occupying positions proposed for exclusion remain in the bargaining unit and are subject to the terms and conditions of the relevant collective agreement until such time as an agreement is reached or, in the event of an objection, the FPSLREB renders a decision.

Since a position is now identified as being excluded, those employees who are either acting in that position or have assumed wholly or substantially the duties and responsibilities of that position for a period of more than one month will be considered as being excluded during that period of time. Union dues cease on the first day of the month following the effective date of the acting appointment.

If the duties and responsibilities of a position have changed or no longer warrant exclusion, the Federal Public Sector Labour Relations Actallows the bargaining agent to object to the position being identified as excluded. It is important that Locals keep this in mind and advise the USJE National Office should they become aware of any positions where the duties and responsibilities would no longer support its exclusion, or where employees are no longer occupying an excluded position.

The Public Service Employment Act (the PSEA) provides the FPSLREB with the authority to deal with complaints involving:

• the deputy head’s decision to layoff an employee. The ground for complaint is that the manager abused his or her authority in selecting the complainant for layoff [subs. 65(1) of the PSEA];
• the decision of a deputy head or the Public Service Commission to revoke an appointment [subs. 15(3), 67(1) or 67(2) of the PSEA]. The ground for complaint is that the revocation was unreasonable (s. 74 of the PSEA);
• internal appointments.The grounds for complaint are abuse of authority and denial of the right to be assessed in the official language of the person’s choice [subs. 77(1) of the PSEA]; Public Service Staffing Tribunal Procedural Guide 6
• failureof corrective action following a complaint against an internal appointment that was substantiated (s. 83 of the PSEA). The ground for complaint is that the person was not appointed or proposed for appointment by reason of an abuse of authority in the implementation of the corrective action.

The FPSLREB may also interpret and apply the Canadian Human Rights Act when addressing complaints involving internal appointments and layoffs [subs. 65(7) and s. 80 of the PSEA]. A complainant may thus allege that there has been abuse of authority based on one of the prohibited grounds of discrimination set out in the Canadian Human Rights Act. The prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.

The Public Service Employment Act (PSEA) specifies who has a right of complaint under each type.

1. Foran internal appointment process:

There is a right of complaint on the grounds that there was abuse of authority in either applying merit or choosing between an advertised and a non-advertised appointment process, and/or there was a denial of the right to be assessed in the official language of the person’s choice:

a) any unsuccessful candidate in the area of selection in an advertised process; or

b) any person in the area of selection in a non-advertised process.

Please note that a person cannot file a complaint on behalf of another person or group. HOWEVER, an authorized representative — e.g. a bargaining agent representative — may file a complaint on behalf of a complainant.

2. If an appointment or proposed appointment occurs as a result of corrective action taken in response to a successful complaint under s. 77 of the PSEA,

the following people have a right of complaint on the grounds that there was abuse of authority in implementing the corrective action:

a) the person who filed the original complaint;

b) the person originally proposed for appointment or appointed; or

c) any person directly affected by the implementation of the corrective action.

3. If some, but not all, of the employees in a part of an organization are selected for layoff,

any employee informed by the deputy head that he or she will be laid off is entitled to file a complaint on the ground that the deputy head’s decision to lay him or her off constitutes abuse of authority.If some, but not all, of the

4. Any person whose appointment is revoked in an internal appointment process

by the Public Service Commission or by the deputy head is entitled to file a complaint on the ground that the decision to revoke was unreasonable.

**For information on filing a complaint please consult the Federal Public Service Labour Relations and Employment Procedural Guide.

(November 2018)