Date: 20001024
Docket: T-1772-97
BETWEEN :
DAVID GIROUX
Applicant
-and-
DEPARTMENT OF HEALTH, as represented by the
MINISTER OF HEALTH, THE PUBLIC SERVICE COMMISSION
AND THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
DUBÉ J. :
[1] The applicant ("Mr. Giroux") seeks the judicial review of an investigation report made on July 15, 1997, by Phyllis Martin ("the Investigator") of the Recourse and Review Branch of the Public Service Commission of Canada ("the Commission") pursuant to section 7.1 of the Public Service Employment Act ("the Act"). The Investigator conducted her investigation in response to complaints filed by Mr. Giroux and considered his complaints to be unfounded.
FACTS
[2] The applicant was hired for a six-month term by Health Canada to fill the position of Record/Mail Clerk, at the CR 02 group and level effective January 20, 1991. He was reappointed to two subsequent terms which expired on September 1, 1992. He was not reappointed to a further term because he did not qualify in a closed competition for an indeterminate CR 02 Record/Mail Clerk ("the first competition").
[3] The applicant appealed, pursuant to section 21 of the Act, against the selections for appointment made following the competition. However, at the hearing of his appeal in November 1992, Health Canada informed the Appeal Board that it would not make any appointments from the eligibility list due to perceived flaws in the assessment of the personal suitability of the candidates. Mr. Giroux's appeal was allowed on that basis.
[4] On June 24, 1993, Health Canada issued a new eligibility list and the applicant was again found not to be qualified ("the second competition"). On July 7, 1993, the applicant filed an appeal under subsection 21(4) of the Act. In September 1993, Health Canada informed the Appeal Board Chairperson that it would not make appointments from the eligibility list and requested that the list be abolished. The Appeal Board Chairperson refused to cancel the list but agreed to adjourn the appeal.
[5] In December 1993, Health Canada conducted a "reverse order of merit" process so as to determine which of the clerks already appointed would be reappointed to new terms. This process was used because the resources of the department had been restricted and all the term clerks could not be reappointed.
[6] The appeal hearing was reconvened in February 1994. Health Canada indicated that it wished to concede the appeal. No corrective action was taken as no appointments were to be made from the list. On January 9, 1997, the applicant purported to file an appeal against the so-called reverse order of merit process carried in December 1993. On April 2, 1997, the Appeal Board Chairperson dismissed the appeal on the ground that he did not have jurisdiction to hear it.
2. The Investigator's Report
[7] As she found that the complaints of Mr. Giroux, who at the time was representing himself, were unclear, the Investigator described the scope of her investigation in the following terms:
| Conduct a review of the staffing/appointment actions of Record/Mail Room Clerk CR 02 having occurred since the date of the last appeal lodged by the complainant pursuant to PSEA Section 21. |
[8] In her detailed and comprehensive report, the Investigator examined Mr. Giroux's allegations of nepotism and breaches of the Act in the staffing of positions of CR 02 Record/Mail Clerk. She dealt with his specific allegations that Dave Valentine and Manon Huneault (and others) were unfairly favoured.
[9] She also dealt with Mr. Giroux's rating on the CR 02 competition based on the criteria of knowledge, abilities and personal suitability. The factor of personal suitability was based on five subfactors and Mr. Giroux was given 0 points on a total of 10 under the reliability subfactor. She concluded that the merit principle was not breached.
[10] In her analysis, she reduced the issue being investigated in those terms:
| Was Mr. D. Giroux subjected to unfair, unjust treatment and breaches of the merit principle in the termination of his employment as a term CR 02 Record/Mail Clerk? |
[11] She noted that under section 25 of the Act "an employee who is appointed for a specified period ceases to be an employee at the expiration of that period". After a full review of the relevant factors, the Investigator concluded that the merit principle was not breached (at page 12 of her decision):
| In the case at hand, Mr. Giroux, a term CR 02 Record/Mail Clerk, ceased to be an employee of Health Canada at the expiration of his specified period appointment. The reason given by the Department for not renewing Mr. Giroux's term employment was because he had failed to qualify in an earlier competition that had been conducted (see Background) so this investigator examined this as well as the other actions alleged by the complainant to have breached the merit principle. |
| With respect to the complainant's lack of success in the CR 02 competition, the investigation may not re-assess candidates or substitute its opinion for that of the Selection Board. Consequently, looking at the tools used and the manner in which Mr. Giroux was assessed for the Reliability element of Personal Suitability, nothing indicates that merit was not respected. Perhaps it may have been somewhat harsh to give him a Zero mark for the Reliability element, but even if that was the case, given the nature of the comments about Mr. Giroux's performance in this element, it is unlikely he would have been awarded as many as 8.6 points, the number of points Mr. Giroux would have required to qualify in the Personal Suitability factor. It must be repeated, that the Investigator must not reassess any candidate; I may only assess the appropriateness and reasonableness of the assessment of the Selection Board. Based on the information before me, it is concluded that the merit principle has not been breached. |
[12] The Investigator also indicated that Mr. Valentine was not a CR 02 term Record/Mail Clerk, nor is he now, but was, and continues to be, a term messenger GS MES 02. Mr. Giroux never appealed his appointment. As to Manon Huneault, although she did not qualify in the CR 02 competition, where Mr. Giroux applied, she was successful in a different CR 02 competition elsewhere in Health Canada. Mr. Giroux did not appeal that appointment either.
[13] However, the Investigator did not approve of the so-called "reverse order of merit" process as follows:
| Although not affecting the complainant nor the outcome of this investigation, I must make an observation concerning the reverse order of merit conducted by the Department in December 1993. The Department conducted this process to determine which Record/Mail Clerks currently in the organization would have their appointments extended, however I must point out that a Reverse Order of Merit is used to determine the order in which employees may be laid off not appointed. With respect to employees employed for a specified period, as was the situation facing the Department, Section 25 of the Public Service Employment Act sets out that at the end of a specified period of employment, the employee ceases to be employed. Any subsequent "extension" is an appointment and therefore is subject to the merit principle as set out in the Public Service Employment Act, Section 10. Simply put, the Department should have held a competition, with the attendant appeal rights, in this case for the purpose of selecting employees for subsequent term appointments. |
[14] But she noted that the reverse order of merit process did not affect Mr. Giroux as he was no longer an employee and was not therefore laid off under that process.
3. Analysis
[15] Although Mr. Giroux may feel frustrated not to have been continued or reappointed in the position of Record/Mail Clerk at the CR 02 group, in spite of his two successful appeals of the first and second competitions, it cannot be said that the Investigator erred in law or based her decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before her.
[16] As an employee appointed for a specified period, Mr. Giroux ceased to be an employee at the expiration of that period under section 25 of the Act. The Act provides no remedy to a person whose term appointment is not renewed. Section 21 of the Act entitles him to appeal the selection of others who have been appointed after a competition where he was unsuccessful. He was unsuccessful at both competitions and he did appeal. Although his appeals were ultimately successful, this did not vest him with an automatic right to be appointed to an indeterminate position if the employer department decides not to make any appointments on the grounds of economic or other factors.
[17] The reverse order of merit process could not have affected Mr. Giroux as it was used to determine the order in which employees may be laid off. Mr. Giroux was not an employee at the time.
[18] There is no evidence that any of Mr. Giroux's colleagues benefited from preferred treatment. Mr. Valentine occupied a different position and Ms. Huneault was successful at a different competition. None of the allegations of bias were substantiated. As stated by the Investigator, there is no indication that the merit principle was not respected.
[19] The candidates in the competition for the position in question were rated under three criteria: knowledge, ability and personal suitability. He was found to be deficient under the third factor because he was found to be unreliable. Reasons were provided to show why he was unreliable. It was not for the Investigator, nor for this Court, to substitute its own findings to that of the examiners.
4. Disposition
[20] Consequently, this application for judicial review must be dismissed.
OTTAWA, Ontario
October 24, 2000
Judge