In a recent decision of the Supreme Court of Canada, the court unanimously affirmed the decision of the Public Service Staffing Tribunal ("Tribunal") which dismissed a federal employee's claim that he had been passed over for a promotion on the basis of "abuse of authority".
The employee was employed by Service Canada in a "Level 5" position. As part of a reorganization, the position of Regional Manager was created at a "Level 6" position. Service Canada decided to fill the Level 6 position through an internal advertised process. The employee applied to the competition but failed a mandatory examination. The employee subsequently filed a complaint with the Tribunal alleging an abuse of authority contrary to the Public Service Employment Act. The Tribunal dismissed the employee's claim because he had not established abuse of authority. The Federal Court affirmed the Tribunal's decision but the Federal Court of Appeal allowed the appeal and sent the case back to the Tribunal.
In reversing the decision of the Federal Court of Appeal and allowing the appeal, the Supreme Court held that there were four reasons to reject the Federal Court of Appeal's decision:
1. The basis of the employee's complaint was that his employer had abused its authority in choosing an advertised internal appointment process. The employee had argued that advertising the position constituted abuse of authority because the Level 6 position was not a new position but rather a reclassification of an old position. The court agreed with the Tribunal's finding that regardless of whether the position was new or old, Service Canada was entitled to advertise the position with the result that the alleged newness of the position did not give rise to an obligation to advertise the position. The Tribunal held that there was nothing in the regulations that required Service Canada to utilize a particular selection process depending on whether the position was new or reclassified. On the contrary, the regulations clearly provided that the employer had the discretion to use an advertised or a non-advertised appointment process;
2. The Federal Court of Appeal had assessed the decision of the Tribunal against a claim that the employee did not make. The employee had assumed that if he could establish that the Level 6 position was reclassified, he would be entitled to a non-advertised process. He identified the abuse of authority as the "erroneous interpretation of the facts against the employer's own reclassification guideline". On his view, if the position was reclassified, no matter what other reasons the employer might have had for preferring an advertised process, he was owed a non-advertised process. The Tribunal responded to this complaint by finding that given the broad discretion accorded to employers under the regulations, the employee was wrong to argue that he was entitled to any particular process. The Supreme Court agreed and indicated that in its view, the employee was seeking to restrict the discretion of his employer in a way that did not accord with the purpose or wording of the Act;
3. The Federal Court of Appeal's decision to send the case back to the Tribunal was based on its reading of the record that the newness of the Level 6 position was the "principal justification" for the employer's decision. The employer presented evidence before the Tribunal that its regional management board decided to advertise the position in order to have a fair, accessible and transparent process to allow more than one person to apply, especially since this was a new position at a higher level. The Tribunal made no finding as to what the employer's "principal justification" may have been. The Federal Court of Appeal erred by effectively undertaking its own assessment of the record and attributing to the employer a principal justification that the Tribunal did not find; and
4. The Supreme Court disagreed with the Federal Court of Appeal's conclusion that the Tribunal acted unreasonably by failing to give the employee the opportunity to show that there was no rational basis for the employer's position that the Level 6 position was new. There was no realistic possibility based on the record that the Tribunal could find any such rational finding of material fact in this case.