Nieboer

T-1819-95

In the matter of an application to review and set aside, pursuant to section 18 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended

And in the matter of a decision dated July 28, 1995, by Mr. D. Ronald Franklin, Investigator, Deployment Recourse Office, Public Service Commission of Canada, made pursuant to section 34.4 of the Public Service Employment Act, [File No. 945-051-RC]

Between: Margaret Nieboer, Brent Clifton, Cathy Naberley and Gerald Walker, Applicants and Attorney General of Canada [Revenue Canada Customs, Excise and Taxation] Respondent

In the matter of an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, to review and set aside the Decision of R. Donald Franklin, Investigator, dated the 28th day of July, 1995, respecting a complaint pursuant to section 34.3 of the Public Service Employment Act, R.S.C. 1985, c. P-33

Between: Bonnie Pratt, Sue Moser, Bev Phillip and Renee Spohn, Applicants and Attorney General of Canada, Respondent

Reasons for Order

Jerome, A.C.J.:

This is an application for judicial review of the decision of D. Ronald Franklin, an investigator appointed pursuant to sections 34.3 and 34.4 of the Public Service Employment Act, R.S.C. 1985, c. P-33. The complaint under investigation was with respect to the deployment of Mr. Kim Forsyth from the position of Audit Officer, PM-02, in the Edmonton District Office of Revenue Canada, Customs, Excise and Taxation, to the position of Audit Officer, PM-02, in the Lethbridge District Office. The investigator, by decision dated July 28, 1995, declined to make a recommendation against the deployment.

Mr. Forsyth submitted an application with the Public Service Commission on March 23, 1994. After successfully completing a technical exam and an interview, he was sent a letter of offer of appointment on November 18, 1994, for a PM-02 position in the Edmonton District Excise Office. He accepted the offer and commenced employment on December 5, 1994.

On September 30, 1994, prior to Mr. Forsyth being offered a position in the Edmonton Office, a notice of closed competition was issued for a PM-02 position in the Lethbridge District Excise Office. However, on November 4, 1994, the Director of the Lethbridge District Officer, Mr. Tony Persaud, was advised by his Director General to consider staffing strategies other than the closed competition in light of the current staffing freeze.

On November 28, 1994, five days after Mr. Forsyth accepted the Edmonton position but prior to commencing work, he was asked if he was interested in a deployment to Lethbridge. On December 7, 1994, two days after he started working, Mr. Forsyth submitted a request for deployment. On December 19, 1994, Mr. Persaud advised those candidates that had participated in the closed competition for the PM-02 position of Audit Officer in Lethbridge that the competition was cancelled and the position was to be staffed by deployment. Mr. Forsyth received an offer of deployment on December 22, 1994, which he accepted on December 29, 1994. The scheduled date on which the deployment was to be effective was January 9, 1995.

The applicants filed a complaint against the deployment. A departmental investigation was conducted by a Human Resources Consultant in the Calgary District Office of Revenue Canada. After an oral hearing on January 18, 1995, the consultant concluded that the deployment of Mr. Forsyth did not constitute an abuse of authority or otherwise contravene the Public Service Employment Act. It was recommended that the deployment be permitted to proceed.

On May 18 and July 11, 1995, a hearing took place before D. Ronald Franklin, Investigator for the Deployment Recourse Office, Public Service Commission. The applicants alleged that the deployment was contrary to subsection 34.2[1] of the Act. Specifically, they claimed that the deployment was not made in a manner directed by Treasury Board insofar as no advance notice of the deployment opportunity was given to employees in the work unit to which the deployment was made and the selection criteria contained in the departmental policy were not complied with. It was also argued that the deployment constituted an abuse of authority because favouritism and special treatment had been afforded to Mr. Forsyth.

By decision dated July 28, 1995, the investigator concluded that he could not make a recommendation against the deployment. After reviewing the evidence and arguments to all parties, he found as follows:

The department relied on the authorities cited to support its contention that it had done nothing illegal in the deployment of Kim Forsyth. The status of Treasury Board and departmental policies and guidelines, the posting of specific deployment opportunities, and the cancellation of staffing competitions, are issues which have been canvassed on a number of occasions in other investigations. It is clear that departments have a significant degree of flexibility in the establishment and administration of deployment policies and guidelines. Those policies simply do not have the force of effect of either the PSEA or the Treasury Board Directives. Failure to comply with administrative policies or guidelines is neither illegal nor cause for determining that a deployment is invalid. A significant degree of latitude is also available to a department in deciding whether to conduct or cancel a competition or to make use of the deployment process.

Although they were not able to prove their case to the satisfaction of this investigator, the complainants and their representative have managed to raise to [sic] some very real questions and doubts about the manner in which the department handled the Kim Forsyth deployment. Unfortunately, there was an element of evasiveness in the department's position which did little to dispel the nagging suspicion that there might be some truth to the allegations made by the complainants.

The applicants now seek to have the Investigator's decision set aside on the grounds that he erred in finding that the deployment was authorized or made in accordance with the Public Service Employment Act; that he erred in finding the deployment did not constitute an abuse of authority within the meaning of the Act; and, that he failed to observe a principle of natural justice.

The Public Service Employment Act ["PSEA"] and the regulations made under the Act, provide a comprehensive scheme for staffing in the federal public service. Generally, appointments to or from within the public service are based on selection according to merit. As an exception, Part III.1 of the Act, provides for the exclusive right of deputy heads to make deployments, which are defined in subsection 2[1] as "the transfer of an employee from one position to another". Deployments are not subject to the merit principle nor to a right of appeal under section 21 of the Act.

There is, however, a complaint mechanism established by the legislation. Section 34.3 provides that employees in the work unit may direct a complaint to the deputy head of their department on the basis that the deployment was not authorized or made in accordance with the Act or that it constituted an abuse of authority. Section 34.4 provides for the referral of a complaint to the Public Service Commission for an investigation and report.

Subsection 34.2[1] of the Act states:

34.2[1] Deployments shall be made in such manner as the Treasury Board may direct.

The Treasury Board has issued Directives for Deployment and Deployment Recourse. It has also established a Deployment Policy and Deployment Guidelines, which explains deployments and describes how they are to be made:

A deployment is the move of an employee from one position to another within the same occupational group or, where authorized by regulations of the Public Service Commission, to another occupational group. Unlike assignments or secondments, an employee gains incumbency in the position to which he or she is deployed and therefore assumes the classification level of the new position. A deployment cannot result in a promotion or a change of tenure and it may be made for an indeterminate or a specified period. A deployment requires the consent of the employee concerned except in those situations where a willingness to be deployed is a condition of employment of his or her current position.

Deployments are to made in a fair, reasonable and transparent manner, taking into account the needs of the organization and the legitimate career interests and aspirations of employees.

Treasury Board's Policy also requires that individual departments establish deployment policies and sets out the requirements of those policies:

Policy Requirements

1. Departments must establish deployment policies and procedures that respect the Directivesmade by the Treasury Board under Sections 34.2[1], 34.3[1] and 34.3[3] of the Public Service Act [see Appendix A], or any regulations made under Section 37.1[1] of that Act and that:

1.3 provide for advance notice of upcoming deployment opportunities to employees in the work unit to which the deployments will be made;

In accordance with the Treasury Board policy, Revenue Canada, Customs, Excise and Taxation implemented a deployment policy which provided, in part, as follows:

7. Notice of Deployment Opportunities

At a minimum, employees in the work unit must be notified of upcoming deployment opportunities. Delegated managers may use any type of notice they deem appropriate to inform employees of upcoming deployment opportunities. Memo, E-mail, announcements at staff meetings and notices on bulletin boards are some examples.

Managers also may wish to ask employees periodically if they are interested in deployment opportunities, keeping a record of these requests and consulting it before making a deployment.

To assist employees in considering deployment opportunities, managers should provide them with information about the position to which the deployment will be made. This will generally include the location; classification of the position; information regarding the duties to be performed; the tenure of the deployment; any conditions of employment; language requirements or mandatory occupational certification; and a contact for further information.

The applicants' main complaint here is that they were not provided with advance notice of the deployment opportunity which existed in their work unit. They only became aware that such an opportunity existed after Mr. Forsyth was deployed to the Lethbridge office. That lack of notice, it is argued, renders the deployment unlawful because it does not comply with subsection 34.2[1] of the Public Service Employment Ac, which requires all deployments to be made in such manner as the Treasury Board may direct.

The respondent argues that the Treasury Board guidelines and Revenue Canada's policy with respect to deployment do not have the force of law. It is further submitted that there is no factual or reasonable basis for the applicants' contention that the failure to provide advance notice deprived eligible employees of the opportunity of applying for the deployment in question, since the employees who would have been eligible were already Audit Officers at the PM-02 level.

I am not persuaded by the respondent's arguments and am allowing the application. Given the express language used by Parliament in subsection 34.2[1] of the Act, it is clear that departments are required to conduct deployment actions in accordance with Treasury Board guidelines. Those guidelines in turn explicitly require advance notice of deployment opportunities be given to the employees in the work unit to which the deployment is to be made. It is undisputed that advance notice was not given here. The department therefore failed to comply with the Treasury Board guidelines and policy, and in so doing failed also to comply with the mandatoryrequirements of subsection 34.2[1].

In Vavrecka v. Attorney General of Canada, [T-469-95, March 13, 1996], Mr. Justice Gibson made the following comments at p. 7:

I find that where the Treasury Board directs that departmental policy must provide for advance notice of upcoming deployment opportunities, there is an implied direction that departments comply with their policies in making deployments. In the spirit of fairness, transparency and equity, as espoused by the departmental policy in question, advance notice of upcoming deployment opportunities is required.

That reasoning is equally applicable to the present case.

For these reasons, the application is allowed. The decision of the investigator is set aside and the matter is to be referred back to the Public Service Commission for reconsideration and redetermination in a manner not inconsistent with these reasons.

Ottawa, October 11, 1996

James A. Jerome, A.C.J.