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.