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Requesting a Review of a Staffing Decision
The Public Service Act provides that in-service candidates who are unsuccessful in a public service competition may request a review of the staffing decision.
The prescribed procedure is set out in the Act and the Review of Staffing Decisions Regulation. PEA staff are available to advise and assist members with the review process. Here is an overview:
Selections Based on Merit
The Public Service Act requires that appointments must be made on the basis of merit and shall be the result of a process designed to appraise the knowledge, skills and abilities of applicants. The matters to be considered in assessing merit include education, skills, knowledge, experience, past work performance and years of continuous employment in government service. Consult the Staffing section of the BC Public Service Agency website for the rules selection panels must follow.
Don’t Forget Deadlines
The staffing review process requires than an employee follow all the steps laid out below sequentially and within the required time limits. Failure to meet these deadlines will normally mean that an employee may take no further action. At each step, an employee is required to advance their request for a staffing review within five calendar days of a specified event. However, if the fifth calendar day falls on a weekend or statutory holiday, the fifth day is deemed to be the next business day.
Step Two: Internal Inquiry
If you’re not satisfied with the panel chair’s reasons under Step One, you have the right to request an internal inquiry of the appointment by the Deputy Minister on the grounds that the merit principle was not applied in the appointment, or that the appointment was not the result of a process designed to appraise the skills, knowledge and abilities of eligible applicants.
- A request for an internal inquiry must be made in writing and include a detailed statement specifying the grounds on which the request is made.
- The written request may be sent by personal delivery, courier, facsimile or email and must be received by the Deputy Minister’s
- office within five calendar days of the date you received the feedback from the panel chairperson.
- The Deputy Minister (or his or her designate) must conduct the internal inquiry as soon as practicable after receiving the request.
- Following the inquiry, the Deputy Minister will prepare a written decision which may support the staffing decision or send the issue back to the panel chairperson for reconsideration.
What are good grounds for pursuing a review of a staffing decision?
The new staffing review process took effect as of December 2003. While experience under the new process is limited so far, it is safe to assume that what was true under the old staffing appeal process remains an accurate assessment of the likelihood of a successful review. That is, selection reviews are more difficult to win than grievances because the interpretation of selection criteria is more subjective than interpretation of collective agreement clauses. In addition, the review process is internal to government, and does not involve a hearing by an independent third-party, such as an arbitrator or the former Public Service Appeal Board. Success in selection reviews is likely to be difficult at the best of times, and staffing decisions will not be overturned on the basis that the unsuccessful candidate is a better judge of merit than the panel.
To be successful, an unsuccessful applicant will have to show that the panel specifically and tangibly failed to meet obligations defined under the Public Service Act, its regulations and directives. Panels typically foul up by failing to consider statutorily-defined merit factors, by relying on inadequate selection criteria, by improperly altering or misapplying selection criteria, and rarely, by perpetrating outright bias.
The PSA requires panels to consider six factors in evaluating the relative qualifications of candidates for public service positions: education, skills, knowledge, experience, past work performance, and years of continuous service in the public service (seniority). Panels are not required to give equal weight to these six factors, but must at least consider all six.
In pursuing a staffing review, members must clearly outline the reasons why the appointment was not based on the principle of merit or was not the result of a process designed to appraise the knowledge, skills and abilities of eligible applicants. Examples of viable grounds include the application of different tests and standards to candidates, failure to consider all required factors, use of invalid or inadequate selection criteria, selection of unqualified candidates, or bias.
For example, members may succeed in a staffing review by showing that the panel’s interview questions and selection criteria did not adequately reflect the actual duties of the position; or that the job posting failed to note an essential qualification.
How do I request feedback if I’m unsuccessful in a competition?
If you are an unsuccessful employee applicant after a hiring decision has been made in a competition and you’ve received a regret notification, you have the right to get feedback and request a review of the appointment decision to determine why you were not successful and to determine if merit was applied in making the appointment.
Below is a PDF with the three stages for feedback, as outlined by the provincial government.
PEA May Appoint Observer
Article 12.01 of the PEA master agreement allows the union to appoint observers in professional competitions. PEA exercises its observer right in cases where there is reason to suspect that a particular competition might not be above board. The union normally appoints a PEA local representative to carry out the observer duty. That duty is to:
- Observe and report on how the panel evaluates the respective merits of the candidates;
- Record instances where candidates are subjected to different or inconsistent standards or conditions;
- Note any evidence of bias for or against a given candidate, and
- Look for any other evidence that the panel’s decision is not the result of a fair appraisal of candidates’ qualifications and capabilities. The observer’s role does not include participating in the interview/selection process.
Step One: Asking for Feedback
As a first step, the unsuccessful candidate must ask the panel chairperson for the reasons why s/he was unsuccessful in the competition.
- This request must be received by the panel chairperson within five calendar days of the unsuccessful applicant receiving notification of the appointment decision.
- To request feedback, the unsuccessful applicant may request an appointment with the panel chairperson in person, by telephone, courier, facsimile or email.
- The panel chairperson is required to provide this feedback orally, as soon as practicable.
Step Three: Review by Merit Commissioner
Following an internal inquiry, you may make a written request for a formal review of the staffing decision by the Merit Commissioner. You may make such a request only if the competition was for a bargaining unit position, and only on the same grounds as you put forward in your request for an internal inquiry by the Deputy Minister at step two.
- You must include the detailed statement you provided to the Deputy Minister specifying the grounds on which your request for an internal inquiry was made.
- The written request for a formal review may be sent by personal delivery, courier, facsimile or email and must be received by the Merit Commissioner within five calendar days of the date you received the decision of the Deputy Minister at step two.
- The Merit Commissioner is to complete the review as soon as practicable and issue a written decision supporting the ministry’s decision or directing that the appointment be reconsidered.
And what about the grounds that don’t work?...
So much for good grounds. What sort of arguments are likely not to work?
Candidates often feel injured and offended that management could select someone else to do the job they hoped would be theirs’. A standard reaction to hurt feelings is to look for ways of discrediting the successful candidate or denigrating the ability and judgement of the selection panel. While these reactions are understandable, they are invariably dead-end roads as grounds for a review. Appeals are doomed if they are founded on the proposition that the panel simply made a bum choice.
Attacks on the government’s selection system won’t work either. Some of us may not like it, but the critical determinant of success in public service competitions is the panel interview. Reviews will not succeed on the ground that too much weight was assigned to knowledge and skills as demonstrated in the interview, and too little to factors such as credentials, long experience and a solid employment record. Requests for review that are based on claims that the appellant’s education and work history are better than the successful candidate’s will not fly. Those factors are important in getting candidates through the door — they are significant screening criteria — but once a short list of qualified candidates is determined the government’s selection process is designed to enable the candidate who gives the best interview to grab the brass ring.
It will do no good to rail against the merit determination system. Credentials and experience play an important part in determining whether an employee has the basic qualifications for the position — and is thus eligible for an interview — but after that the system assumes that everyone is on a level playing field and the spoils of victory go to those who perform best in the interview room.
If you want a staffing decision to be overturned through the review process, look to the factors identified above, and be sure you’re in a position to identify specific and significant offences against the standards selection panels are required to meet.
