FREQUENTLY ASKED QUESTIONS

ABOUT FILING OF A COMPLAINT

TO

THE PUBLIC SERVICE STAFFING TRIBUNAL (PSST)

OR

THE PUBLIC SERVICE LABOUR RELATIONS AND EMPLOYMENT BOARD

In December 2014,the House of Commons passed Omnibus Bill C-4 which included changes to the logistics of where the Public Service Staffing Tribunal(PSST)resides within government departments. It has now become a part of the Public Service Labour Relation and Employment Board (PSLREB). The new PSLREB,also includes the former Public Service Labour Relations Board (PSLRB). Nothing has changed within the jurisdiction and authority of the PSST. It is important to note these changes because all websites are transitioning to 1 location under the new PSLREB.

Q What kind of complaints can be filed with the PSST?

A.The Public Service Employment Act describes as such:

The PSEA sets out the parties with a right to be heard for each of the four types of complaints:

  • Internal appointments
  • Failure of corrective action
  • Lay-offs and
  • Revocation of appointment

Q. What if I wanted to file a complaint regarding an external appointment?

A. The Public Service Commission oversees the process for external appointments

Q What are the grounds for which I can file a complaint?

A. There are 3 specific conditions that can be applied to a complaint:

  • Abuse of authority in the application of merit
  • Abuse of authority in the choice of process (advertised or non-advertised process)
  • Failure to assess the complainant in the language of their choice.

Q. How soon can I file a complaint?

A. AcomplaintmustbesenttotheExecutiveDirectoroftheTribunal(PSST) inwritingnolaterthan15calendardaysafterapersonwiththerighttocomplainhasbeeninformedoftheappointment, proposedappointment,notice of consideration, revocation,or lay-off.

Q. Who has the right to file a complaint?

A. Ordinarily, anyone involved in the staffing process, but on rare occasions employees outside of the staffing process in question. They can file a complaint if they can prove egregious error was committed in the administration of the staffing opportunity. (Mercier Vs. Deputy Minister of Public Works Government Services Canada)

Q. Do I have to wait until the staffing process is completed before inquiring within the department about being screened out of a staffing process?

A. No. It is best to arrange for a meeting with the delegated Manager as soon as possible in the event that you have been screened out. There have been occasions where candidates have been placed back in the staffing process before it was completed. It is recommended that you take a colleague or union representative for the purpose of taking notes at this early time. Only the delegated Manager has the authority to reconsider a decision made.

Q. What is the point of filing a complaint when the only resolve to my complaint if founded is to have the decision made by the delegated manager revoked?

A. There are many advantages for filing a complaint for both the complainant and the general population of the workforce:

  • It triggers Human Resources Directorate to investigate how the Manager ran the staffing process.
  • It emphasizes the need for the department to assess their own auditing protocol for staffing processes.
  • It opens the door to outside parties such as the PSST, PSC and the HRC, and allows for a more objective look at staffing practices within the department.
  • It provides a formal setting and forum for managers and employees to discuss the merits of their case related to the staffing process in question.
  • It also provides an opportunity of a possible negotiated settlement for the parties prior to the scheduled hearing.
  • It will add precedence and support for future cases brought before the Tribunal.
  • It immediately effects change within the department to improve on what is a constant challenge in maintaining integrity within the core of their organization; Human Resources Directorate and Employment Opportunity.

Q. Where do I get help once I know I have been screened out unfairly or was not considered for a staffing opportunity based on the appropriate grounds for filing a complaint?

A. Your Local representation can direct you to resources made available through volunteers.

Public Service Alliance of Canada, Government Services Union and your Local, are not obligated to represent members on PSST complaints. These complaints do not fall under the obligations of the Bargaining Agent in relation to your Collective Agreement, nor the Component and Local. It is therefore up to the member themselves to find the resources to assist. Local representation is sufficiently familiar to direct a member in locating resources. There are trained members of the PSAC that provide assistance and in some cases full representation.

Q. How do I describe what I consider wrong or improper in how the staffing process was administered?

A. Staffing activities or decisions, the complainant might consider wrong or improper, should be clear and concise to identify. It is helpful to consider how those activities or decisions relate directly to one of the 5 categories of abuse noted below.

The Public Service Employment Act does not define abuse of authority, but states that any reference in the Act to abuse of authority includes bad faith and personal favouritism. In a recent decision, Jeannette Tibbs and 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.

Q. What authority does the Tribunal have in enforcing corrective measures?

A. Powers of the Tribunal are noted in the PSST website link provided below.

For a complete list of the powers of the tribunal please use the following link:

CLOSING SUMMARY

The PSAC has established a cross-section of trainingthroughout the components forrepresenting Tribunal cases.These trained representatives are meant to be available for all members of the PSAC.Please contact your Local as your source for information.

The essential requirement at the beginning of your case is to gather information on the process in two particular areas:

Post board interviews

Exchange of information (PSST formal process)

Post Board Interviews can take place during or while the process is ongoing but more often when the Notice of Consideration has been published. At times they have provided clarity to the parties sufficient enough to place the employee back in to the process. It is rare, however, to successfully overturn a decision made by the delegated manager. This depends on the value placed in being well prepared as an employee or representative and knowing their rights and presenting their case for reinstatement.

Exchange of informationis critical at the earliest possible opportunity including a post board interview. Once a complaint has been filed there will be a formal “exchange of information” in support of the respective parties’ case. Beyond the formal exchange it then becomes more difficult between the parties to cooperate without a request for aproduction order submitted to the Director of PSST. (Click here to see document) Access to Information and Privacy, (ATIP) is an additional tool to support a complaint that is relied upon once you have exhausted any further cooperation from the other party.

This FAQ is in no way complete. It is intended to be a living document subject to change at any time in an effort to provide further information as a quick resource. This information is also provided to encourage early intervention in support of filing a complaint and a decision made in favor of the complainant, intervention on staffing processes. The early questions brought forward can often become crucial.

For a comprehensive FAQ, please refer to the Public Service Staffing Tribunal at the following link:

PSST-tdfp.gc.ca/article.asp?id=2426

Additional links supporting Public Service Staffing Tribunal:

Public Service Commission:

Justice Laws Website:

Canadian Human Rights Commission:

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