Top court speaks on hiring, re-classification

By Jeffrey Miller
|Canadian HR Reporter|Last Updated: 09/04/2003

You can’t change the job qualifications during the interview. That’s the gist of a recent decision of the Federal Court of Appeal concerning jobs at the Department of Employment and Immigration (now the Ministry of Citizenship and Immigration).

The department advertised for immigration settlement counsellors, stating that the qualifications were: “(1) Knowledge of the relevant legislation, of the branch and of issues concerning immigrant or refugee settlement. (2) Abilities and skills of interviewing, investigation, etc. (3) Personal suitability, essentially a matter of interpersonal relations and judgment. (4) Knowledge of English. (5) Reliability/security.”

However, on its written and oral tests, the department decided to weight the knowledge requirements (concerning the legislation and branch practices and issues) at only 10 per cent. And three of the five candidates it selected failed the knowledge requirement altogether.

Katherine Boucher and Karen MacBride passed the knowledge requirement but were not hired. They complained to the Public Service Commission Appeal Board (PSCAB) that, in hiring the settlement counsellors, the department had failed to take into consideration the merit principle.

The PSCAB dismissed the appeal, and the trial division of the Federal Court upheld that dismissal. The Federal Court judge found that it was enough that the department included the knowledge scores in each candidate’s total marks.

Q As the knowledge component factored into the final scores, was that sufficient?

A The Federal Court of Appeal has reversed the trial court’s decision, ruling that the department “erred in law in not requiring that candidates succeed on each of the advertised qualifications for this position. This was in effect a failure to assess the factor of knowledge... We conclude that such a failure amounted to an error of law. In effect, it eliminated knowledge as a qualification notwithstanding the advertised requirements for the job.

“As the court has held on other occasions, a selection board cannot change the advertised qualifications by eliminating one or more of them: to do so is unfair to those who might otherwise have applied but failed to do so because they recognized that they did not have all the advertised qualifications.”

For more information: Boucher v. Canada (A-G), Federal Court of Appeal file A-699-98, Jan. 20/ 2000.

Unfair reclassification

In a decision released a few days later, the same court has held that Indian and Northern Affairs Canada (INAC) acted unfairly in a reclassification hearing for Ted Bulat, an administrative officer at INAC.

In September 1994, Bulat grieved his federal public-service classification. He was represented before the Classification and Grievance Committee by Mary Ann Wight, a classification and equal pay officer from the Public Service Alliance of Canada.

Wight argued that Bulat’s work to maintain outside contacts merited a higher rating, and that the elevated rating would bump up Bulat’s classification. In accordance with the committee’s procedure, Wight and Bulat then left the hearing, but not before Wight asked for a chance to reappear before the committee to reply to submissions by management.

In the absence of Wight and Bulat, management told the committee that Bulat’s work on outside contacts was voluntary, purely “developmental,” and not integral to his work as an administrative officer.

Q Do employees in reclassification hearings have a right to full disclosure of the case they must meet, like accused people in criminal prosecutions?

A A judge in the trial division of the Federal Court dismissed Bulat’s claim, noting that it always had been open to him and Wight to point out that outside-contact duties were a regular part of his job. However, the Federal Court of Appeal has accepted Bulat’s argument that he was unaware that he had to meet the claim that the contact work was voluntary and marginal.

In effect, the court has recognized that, in circumstances such as reclassification hearings, the employee has a right to make what criminal law calls “full answer and defence.” And the employee can make full answer only with complete disclosure of the employer’s case.

Had his employer disclosed the argument before the hearing, Bulat claimed, he would have marshalled his evidence about the work differently, not (in the court’s words) “just to inform the committee of the scope and frequency of his outside contacts but, more particularly, to demonstrate that what he did was not ‘voluntary,’ but had been assigned by management, become part of his job, and was subject to regular performance appraisals by his supervisor.”

The court continues: “The fact that the particular duties were not included in the ‘key activities’ set out in the job description was not enough to put Mr. Bulat on notice that their relevance to the classification exercise might be challenged by management.

“Further, the submissions that would have been made on his behalf, if he had been given the opportunity, were not so weak that they could not possibly have made a difference to the result.

“It would not have been onerous for the committee to disclose to Mr. Bulat management’s position and to allow him to respond to it, particularly since Ms. Wight asked for such an opportunity as soon as she was advised of the decision. Nor would it have turned the classification grievance process into a formal adjudication.”

The appeal court has sent Bulat’s case back to the Classification and Grievance Committee for a new hearing.

For more information: Bulat v. Canada (Treasury Board), Federal Court of Appeal file A-454-98, Jan. 31/00.

Jeffrey Miller is editor of Canadian Employment Law Today. For subscription information, call (416) 609-3800 in Toronto, or 1-800-387-5164.

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