Guidance Series - Corrective Action and Revocation

Table of Contents

• 1. Introduction
• 2. Legislation and policy
• 3. Purpose of corrective action
• 3.1 Identifying the impact of the defect
• 3.2 Factors to consider
• 3.3 Recommended practices
• 4. Options for corrective action
• 4.1 Remedying the defect through reassessment
• 4.2 New appointment process
• 4.3 Actions addressing specific individuals
• 4.4 General corrective action to prevent future occurrences
• 4.5 Revocation of appointment
• 4.6 Appointment to another position
• 5. Conclusion

1. Introduction

With the coming into force of the new Public Service Employment Act (PSEA), deputy heads will have, for the first time, the authority to revoke appointments they have made, or to take corrective action, when they have concluded that an error, omission or improper conduct has affected the selection of a person for an internal appointment.

The aim of this document is to provide some principles and practical advice on how a deputy head will decide what corrective action is appropriate in the circumstances. It is important to recognize that no two situations are alike, and that the appropriate corrective action to take will involve the exercise of judgment applied to the particular circumstances involved.

This document does not address the issue of when a deputy head should or should not investigate a possible defect in an appointment process, nor when an employee should file a complaint to the Public Service Staffing Tribunal or bring the matter to the attention of the deputy head. This document assumes that an investigation has been conducted within the organization and the deputy head has concluded that an error, omission or improper conduct has taken place. It attempts to answer the question - having found a defect, what do I do?

In this document we have used the word defect to encompass the terms error, omission, and in some cases, improper conduct.

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2. Legislation and policy

The new PSEA sets out the deputy head’s authority with respect to corrective action and revocation. Subsection 15(3) states:

“Where the Commission authorizes a deputy head to make appointments pursuant to an internal appointment process, the authorization must include the power to revoke those appointments and to take corrective action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment.”

Because this is a new authority for deputy heads and because of the seriousness of the possible consequences of the decision (loss of employment), the PSC has put in place the Corrective Action and Revocation Policy outlining the requirements for ensuring a fair and transparent corrective action and revocation process. The PSC policy also requires organizations to develop their own policy in this area. For more information, see the Guide to Establishing Policies Required by the PSC.

The Act states that the deputy head cannot sub-delegate the authority to revoke appointments. The deputy head can sub-delegate the authority to take corrective action. Thus, a reference to deputy head in this document will include sub-delegated persons, except when referring to revocation of an internal appointment.

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3. Purpose of corrective action

The purpose of corrective action is to correct the error or omission found during an investigation in order to ensure that appointments are made in accordance with the Act, Public Service Employment Regulations (PSER), and PSC and organizational policies. In the case of improper conduct, there may be a twofold purpose - to correct the defect which resulted from the improper conduct and also to prevent the conduct from reoccurring.

3. 1 Identifying the impact of the defect

The Act is clear that corrective action or revocation can only occur after an investigation has been conducted and the deputy head is satisfied that an error, omission or improper conduct affected the selection of a person for appointment. The purpose of the investigation is to determine if there was an error, omission or improper conduct in an appointment process. The investigation could include a file review, or interviewing the assessors, manager and those who participated in the process in order to make findings of fact about the alleged defect. As corrective action flows from the defect identified, it is important to ensure that investigation reports are accurate, thorough and clearly identify the defect. The PSC has produced another document in this guidance series, Best Practices in Investigations, which provides practical advice to those undertaking investigations on behalf of the deputy head.

Once the investigation is complete, the deputy head will decide, based on the facts found during the investigation, if there was an error, omission or improper conduct that affected the selection of a person for appointment. If so, the deputy head must decide if there is a need to take corrective action or to revoke the appointment. The starting point for the decision about corrective action is also the investigation report, which identifies the defect found.

There are two aspects to identifying the impact of the defect:

• Whom has the error or omission affected?
• What parts, if any, of the appointment process need to be corrected?

For example, if the error identified was that a person was not properly accommodated during a test, then the corrective action would likely be applied with respect to that person only. However, if the assessment board failed to assess a merit criterion such as  “initiative,” then the corrective action to remedy the omission would be to assess all those who made it to that point in the assessment process.

If any error was made in establishing the essential qualifications for the position, it might be necessary to start the process over by readvertising the appointment process and identifying the appropriate essential qualifications. A very different type of corrective action would be taken where the defect found that the ratings given to certain candidates for a particular ability were recorded incorrectly. Only that particular portion of the process would have to be corrected.

What if a defect was found during the investigation, but it does not affect the person selected for appointment?

The Act is clear that the defect found must have “affected the selection of a person for appointment.” For example, an investigation might conclude that a number of candidates were not given the appropriate amount of time to prepare a presentation during the assessment of abilities. However this error did not affect final selection made for appointment, as none of those candidates met the asset qualification (master’s degree) applied by the manager. Corrective action may not be required as the error did not affect the choice of the person selected for appointment. Note: However, if the process is going to be used to make further appointments, the manager may wish to consider reassessing those who had insufficient time, as this error may affect the selection of persons for future appointments.

Another example of an error that does not affect the person selected for appointment might be an advertisement that did not set out the minimum qualification standard for an engineering position. Nevertheless, all persons who participated in the process met the minimum qualification standard. In this situation the error in the advertisement did not affect the person selected for appointment and no corrective action need be taken on this appointment process. However, action could be taken to remind managers for future processes to check qualification standards before issuing an advertisement.

3.2 Factors to consider

The deputy head has discretion in deciding what corrective action to take or whether to revoke an appointment. In exercising that discretion, the following factors might be considered:

• Corrective action must address the defect identified. For example, if the defect identified was that the person appointed did not meet one of the essential qualifications, there may be no choice but to revoke the appointment.
• Where possible, the error or omission should be corrected without repeating the whole appointment process. Appointment processes require a great deal of time, effort and cost, and should not be repeated unless absolutely necessary.
• The impact of the error on the manager’s selection decision. As noted above, if the error did not affect the final selection, the deputy head may decide not to take corrective action.
• The nature of the process. If the process was undertaken to staff one position through a non-advertised process, corrective action will focus on the person appointed. If however, an advertised process was conducted to make appointments to numerous positions, corrective action may need to be applied to all persons.
• Has the same type of error or omission been made in other processes? If so, this situation may be indicative of improper conduct or a lack of understanding of appointment policies on the part of managers.

3.3 Recommended practices

• A decision about corrective action should be taken as soon as the defect has been identified. It is important that the integrity of an appointment process be maintained, and that management be seen to take errors seriously and give priority to remedying the defect to ensure that selections are made on the basis of merit. This will also be less disruptive to the individuals involved, particularly those appointed, whose expectations increase the longer they are in a position.
• Ensure that all those affected have had an opportunity to be heard. This opportunity will often provided during the investigation process, but in some cases the investigation may be very straightforward, and the facts confirmed through a file review. Persons affected may be consulted as to the proposed corrective action.
• It is important for the deputy head to acknowledge the error, omission or improper conduct and communicate the reasons for the corrective action that will be taken, or that no action will be taken. Communicating this will increase transparency and the perception of fairness.
• Consistency in applying corrective action or revocation. The deputy head may wish to consider what was done in similar situations within the organization, or what corrective action was taken by other organizations in similar circumstances.

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4. Options for corrective action

Corrective action may vary depending on the circumstances of the case. However, we can group the types of corrective action into five broad categories:

4.1 Remedying the defect through reassessment

This option is the usual course of action where an error or omission is identified in one or more areas of the assessment. For example, the assessment board may have overlooked one merit criterion. This omission can be remedied by requiring the assessment board to assess candidates on the merit criterion which was omitted and by integrating that information into the final selection decision. If the deputy head concludes that an assessment board erred in using a particular assessment tool, then corrective action might be to chose an appropriate tool, capable of assessing the qualification in question and discarding the information from the previous assessment of that qualification. In both cases, the assessment of all other merit criteria in the assessment process stands.

Frequently, there is more than one way to take appropriate corrective action. If the error found was that expected answers to certain questions were wrong, one possible corrective action would be to review candidates’ assessments using the correct answers. Another possibility would be to re-evaluate the qualification using a new assessment tool.

4.2 New appointment process

In some cases, the error may be so fundamental that the appropriate action may be to start the appointment process over. Factors to consider include:

• serious irregularities found - in situations where serious irregularities exist, such as in the case of improper conduct, the deputy head may well decide, for transparency purposes, to start the appointment process over. For example, if a member of an assessment board changed the answers of one candidate in order to find him or her qualified in a particular criterion, the investigation would probably conclude that improper conduct was involved. In such an instance, although the rest of the appointment process was not affected by the improper conduct, the deputy head might well decide that the process should be started over with a new assessment board. Corrective action against the manager would likely also be taken;
• numerous errors in the same process - in some cases, so many errors may be found that the cumulative effect results in the deputy head having no confidence in the reliability of the assessment process;
• change in merit criteria - changes in the organization may sometimes result in changes being needed to the merit criteria. Since merit criteria are the basis for assessment, the deputy head may decide to recommence the appointment process. For example, a position may have evolved over time. After the investigation is started, the deputy head may determine that the merit criteria are no longer applicable. For this reason, the manager may decide to commence a new appointment process with new merit criteria, in addition to remedying the defect found through the investigation.

4.3 Actions addressing specific individuals

In cases of improper conduct, or serious errors that were the result of negligence or incompetence, consideration should be given to corrective action focussed on the decision-maker or employee concerned. Actions which might be appropriate are:

• where the error or omission was the result of negligence or incompetence, it may be appropriate to require the person to undertake specific training or to require, for a period of time, mandatory consultation with an HR advisor or another manager when participating in appointment processes;
• removal of sub-delegated authority to make appointments - in a case where a manager is found to have used personal favouritism as the sole basis for appointing friends or family members, it might well be appropriate to remove or suspend that manager’s sub-delegated staffing authority to prevent further reoccurrences of the improper conduct and to indicate the inappropriateness of the conduct.

4.4 General corrective action to prevent future occurrences

This type of corrective action might be used in conjunction with a reassessment or revocation of appointment where the deputy head wants to reinforce organizational policy requirements or if there seems to be a pattern of errors. For example, it might be that the organizational criteria for making non-advertised processes are not well understood and appointments are being made outside the parameters of the criteria. In addition to the revocation of the appointments, corrective action in this case might take the form of a memo to all managers and HR advisors outlining the proper way of making these appointments. Alternatively the deputy head might institute an organizational-wide approval process for non-advertised appointment processes.

4.5 Revocation of appointment

The revocation of an appointment may occur as a result of a finding during an investigation. For example, the appointee did not meet the education requirement. It may also occur after corrective action has been taken, such as following a reassessment of an essential qualification, which the appointee is found not to meet. In either case, the first factor to be considered is whether the person who has been appointed meets all the merit criteria used for that appointment. While merit is now defined under the Act, the requirement that appointments be made on the basis of merit has not changed. Therefore if, for example, an error was made in applying an organizational requirement and the appointee does not possess that requirement, revocation of the appointment may be the only option.

If the appointment has been in effect for some time, and the person has been performing the duties of the position satisfactorily, there may be a tendency to want to leave that person in the position, especially if he or she had no involvement in the error made. However, the deputy head must consider transparency and fairness issues. What message will leaving the person in the position send to other employees in the organization? The deputy head will have to consider factors such as the integrity of the appointment process, fairness to the person appointed and to others in the process, and being able to demonstrate that the appointment was made on the basis of merit.

There may be other situations where the appointee is qualified for the appointment, but the deputy head will decide to revoke the appointment. For example, if the appointment resulted from improper conduct on the part of the employee, the deputy head may decide to revoke the appointment since no employee should profit from improper conduct. An example of improper conduct might be where one person informs another of the questions being asked during an interview. This behaviour brings into question the integrity of the appointment process, the integrity of the two employees involved, and the qualifications of the appointee.

Because of the seriousness of the decision to revoke an appointment, the PSC Corrective Action and Revocation Policy requires additional safeguards. In addition to being given an opportunity to be heard, the person concerned must be informed in writing of:

• the effective date of the revocation and reasons for the decision;
• whether he or she will be appointed to another position for which he or she is deemed to meet the essential qualifications; and
• the right to file a complaint, and the time period within which to make a complaint to the PSST on the ground that the revocation was unreasonable.

4.6 Appointment to another position

Under subsection 15(6) of the Act, deputy heads has the delegated authority to appoint a person, whose appointment has been revoked, to another position if they are satisfied that the person meets the essential qualifications. Since the appointee is already an employee of the public service (as deputy head investigations will involve only internal delegated appointments), it is likely that the deputy head will want to consider appointment to another position in most cases.

One approach is to reappoint the person to the position he or she occupied immediately prior to the appointment that was successfully challenged. In this way, the person will be placed in the position he or she would have occupied had the error not taken place. However, this approach is not always possible. This situation emphasizes the importance of taking corrective action as soon as possible, which will increase the chances that the appointee’s former position will still be vacant.

If the person’s former position is not available, an appointment to a similar position at that group and level would be preferable. However, there are no restrictions on the type of position to which a person (whose appointment has been revoked) can be appointed. The only requirement is that the person meet all the essential qualifications for the position.

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5. Conclusion

In conclusion, corrective action and revocation are areas in which there are no hard and fast rules about how to remedy a defect in an appointment process. In most cases, there are a number of factors to consider and several options available that will correct the error or omission in the assessment.  For deputy heads,  the most important steps will be to consider the input from those affected by the action, to exercise their discretion in a reasonable way, and to communicate the decision and reasons for it to all those involved.