Union News December 2018
In the last three newsletters members were provided information with respect to recourse available to them during staffing processes. These articles discuss Individual Feedback (IF), Decision Review (DR), and Independent Third-Party Review (ITPR). Mentioned in one of these articles was the importance of members requesting the recourse mechanisms available at each stage of the staffing process. UTE wants to stress the importance of following all these procedures during any staffing process. The reasons for this will be made clearer in the remainder of this article.
In June 2017 during an ITPR, the reviewer determined that she did not have authority to conduct an ITPR as she did not have jurisdiction to conduct such a review as the applicant’s allegations related to the assessment stage of the staffing process. UTE disagreed with the reviewer’s decision and referred the case to federal court for judicial review. The application for judicial review was dismissed by the Honourable Madam Justice Kane stating that she agreed that the reviewer reasonably found that she did not have jurisdiction to address the applicant’s concerns. This court decision is Qui v Canada (Canada Revenue Agency) 2018-04-12.
The basis for the decision was that the applicant had not requested DR at the assessment stage of the staffing process, where her concerns of arbitrarily treatment could have been addressed. This decision clearly shows that if UTE members wish to avail themselves of ITPR at the placement stage of a staffing process, they must have availed themselves of IF and DR at the assessment stage. Unfortunately, many members who go through the staffing process and are successful in getting into the pool of qualified candidates, do not see the need to request IF or DR at the assessment stage. While this may seem logical, it creates a situation whereby at placement the member has given up their right to recourse.
The jurisprudence on this matter is now very clear, if a member has concerns regarding arbitrary treatment, the assessment stage is where those concerns must be raised. Members cannot “sit on their rights” until placement and raise issues of arbitrary treatment if those issues were not raised during assessment.
Another very important ruling came out of this judicial review in respect to DR. It clearly states that during DR, a member as part of their review to determine if arbitrary treatment had taken place, is entitled to assess the results of other candidates. This has been a huge problem during DR whereby the employer is refusing to provide any information under the guise of privacy. Madam Justice Kane makes it clear at line 80 that the procedures for recourse on staffing (Staffing Program) allows for disclosure of other candidates’ assessment results if these results were used to make a “staffing decision”, and this includes staffing decisions at the assessment stage.
We encourage all UTE members to review this case (link below) and if you are participating in a staffing process, to avail yourself of all the recourse available to you at each stage of the process. This will ensure you access to ITPR if permanent placements are made from the process.
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/309013/index.do
Andrea Holmes
Labour Relations Officer