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Complaints - Unionized Labour. Ghafari v. Canada (Attorney General)
In Ghafari v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a decision of the Federal Public Service Labour Relations and Employment Board (FPSLREB) that dismissed a "complaint alleging abuse of authority in an internal appointment process". These quotes address some of these statute-specific complaint procedures:[7] The Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (Act) requires appointments to be made based on merit and subsection 30(2) describes the circumstances in which an appointment is made on the basis of merit. An unsuccessful candidate for an internal appointment may make a complaint to the Board that they were not appointed or proposed for appointment by reason of an abuse of authority in the exercise of authority under subsection 30(2): ss. 77(1)-(2). The burden of establishing abuse of authority rests with the complainant: Gulia v. Canada (Attorney General), 2021 FCA 106 at para. 7 (Gulia).
[8] Mr. Ghafari made a complaint to the Board under section 77 of the Act, alleging an abuse of authority resulting in an incorrect assessment of his competencies for the senior methodologist position. ....
[9] ... While acknowledging Mr. Ghafari’s belief that he was not fairly assessed in the appointment process, the Board explained that its role was not to reassess him. Rather, the question before the Board was whether an abuse of authority had occurred. The Board observed that Mr. Ghafari had the burden of establishing bias or other abuse of authority and concluded he had not demonstrated either.
....
[28] The focus of a complaint under section 77 of the Act is abuse of authority in the exercise of authority under subsection 30(2) of the Act—that is, the authority to make an appointment on the basis of merit. An appointment is based on merit where the person meets the essential qualifications for the work performed: Act, s. 30(2)(a). But those qualifications may be established by the employer and, to determine whether a person meets the qualifications for the position, any assessment method considered appropriate may be used: Act, ss. 31, 36. The Board explained that it could not examine the choice of assessment method or the qualifications for the position: reasons at paras. 101, 110.
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