Appeals

• How to file an appeal
• What happens next?
• Disclosure Process
• ADR in Appeals (Early Intervention Program)

How to file an appeal

The Jurisdiction and Case Management Directorate of the Investigations Branch, PSC is the point of initial contact for all PSC recourse processes, including appeals, deployment complaints and investigations. This approach allows for effective determinations of jurisdiction and acceptability, and efficient case management of recourse requests. The Jurisdiction and Case Management Directorate can be most effectively contacted via fax at (613) 996-7029 or by phone for general enquiries at (613) 995-7009.

The purpose of the following questions and answers is to assist you in understanding your rights and responsibilities when filing an appeal, pursuant to the provisions of section 21 of the Public Service Employment Act.

• In what circumstances may I file an appeal?
  
• What should I do after deciding to file an appeal?
  
• What must I do to file an appeal?
  

In what circumstances may I file an appeal?

The Act grants you the right to file an appeal against an appointment from within the Public Service in the following two cases:

• in the case of an appointment or proposed appointment following an internal competition, if you are an unsuccessful candidate in this competition;
• in the case of an appointment or proposed appointment following an internal selection made without competition, if you are within the area of selection.

Before taking action to appeal an appointment or proposed appointment following a competition or a selection process without competition, it is strongly recommended that, either as an unsuccessful candidate in the competition or a person in the area of selection, you try to obtain a post-selection interview from the selection board. During this interview, which is different from the "disclosure" process, the department will inform you of the principal reasons why you were not selected for the job. The information obtained from this interview may be sufficient and thus prevent the need for filing an appeal. However, if you are getting close to the end of the strictly limited appeal period, do not risk losing your right to appeal. File your appeal even if the post-selection interview has not yet taken place. An appeal which has been filed can be withdrawn at any time during the appeal process by sending a note to this effect to the Director, Jurisdiction and Case Management of the Investigations Branch, Public Service Commission.

What should I do after deciding to file an appeal?

First, you should check the dates. The regulations provide a strict limit of 14 calendar days for filing an appeal, following the day when you are legally notified of your right of appeal. Only in very exceptional circumstances that are completely beyond your control will an appeal board authorize a late appeal to a maximum of 45 days from the time of the notice.

The notice of right to appeal may be sent by mail, delivered personally, delivered by messenger, transmitted by electronic means or posted publicly. You are legally notified on the earliest of the following dates: the sixth day following the date of the postmark if the notice is sent to you by mail; the day of the delivery of the notice either personally or by messenger; the day of the transmission if the notice is transmitted electronically (by fax or by electronic mail); or the day of the date indicated on the public notice if it is posted publicly.

If your appeal document is sent by mail, it must bear a postmark dated no later than the last day of the appeal period. If the document is not sent by mail, it must be received by the Public Service Commission no later than the last day of the appeal period.

What must I do to file an appeal?

You must file your appeal in writing, either by completing the appeal document form which is available from your Human Resources Division or from our Internet site or by sending a letter, telegram or facsimile message, which becomes the appeal document. You must send this document to an office of the Public Service Commission, or preferably, to the following address:

Director
Jurisdiction and Case Management Directorate
Investigations Branch
Public Service Commission
300 Laurier Avenue West
L'Esplanade Laurier
West Tower, 11th Floor
Ottawa, Ontario
K1A 0M7

Tel: (613) 995-7009
Fax: (613) 996-7029

You must indicate the official language in which the appeal will be presented. You should also
indicate:

• the number of the selection process related to, or the identity of, the appointment under appeal;
• the expiry date of the appeal period, indicated on the appointment notice;
• the name of the department or agency concerned;
• your name, home address and home and work telephone and fax numbers and, if possible,
• those of your representative.

What happens next?

The Jurisdiction and Case Management directorate of the Investigations Branch receives the appeal document and ensures that it contains all the required information. The Directorate then informs the department and the successful candidate or candidates of the appeal, requests that the appellant and the department proceed with disclosure and notifies the parties involved at least 14 days in advance of the time, date and place of the hearing.

• How can I discuss my allegations informally with the assistance of a representative of the PSC?
  
• What is disclosure?
  
• It is possible to request a postponement of the hearing?
  
• What happens at a hearing?
  
• What happens after the hearing?
  
• Can the decision of an appeal board be changed?
  
• Am I entitled to leave to attend a hearing?
  
• Where can I get more information?
  

How can I discuss my allegations informally with the assistance of a representative of the PSC?

The Recourse Officers of the Investigations Branch are trained in dispute resolution processes (negotiation, mediation, etc.).  The Investigations Branch offers the possibility of ADR in appeals.   The Early Intervention in appeals program is an opportunity given to the parties to meet and try to resolve their dispute with the assistance of a PSC Recourse Officer.  Both parties must agree to this process and contact the Jurisdiction and Case Managment Directorate.

What is disclosure?

Disclosure consists of an exchange of pertinent documents and information among the parties concerned, including the allegations as to what was improper about the selection process. It implies both the communication of information and documents by the department to the appellant and the submission by the appellant of his/her allegations to the department. Disclosure should be completed within 45 days from the date you were notified by the Jurisdiction and Case Management Directorate.

The exchange of information takes place before the hearing as follows:

• as soon as possible after filing an appeal, the appellant and the department meet to disclose all the pertinent documents used in the selection process and pertaining to the appellant and the successful candidates, as well as all relevant information relating thereto;
• soon after the previous communication of information, the appellant submits to the department, in writing, the allegations that will be presented at the hearing. These allegations should be sufficiently detailed to allow the department to respond to them; and
• if there is no agreement about what is to be disclosed, the appellant or the department may inform without delay the Jurisdiction and Case Management Directorate of the Investigations Branch, who will then submit the dispute to an appeal board for decision.

For more detailed information, consult the disclosure process.

It is possible to request a postponement of the hearing?

In view of the time, effort and expense required to organize and prepare a hearing, the Directorate will agree in only the most exceptional circumstances to a request for postponement of the date of a hearing.

What happens at a hearing?

If the matter cannot be resolved during disclosure and/or an early intervention process then a hearing date will be established and a Recourse Officer operating as an appeal board will be assigned to the case.

The appeal board may consist of one or more persons, but, generally, it consists of a single member. The appeal board conducts an inquiry at which the appellant, the department, the successful candidate, or their representatives are given an opportunity of being heard. This inquiry is normally conducted during a hearing at which all parties are convened. The appeal board is responsible for the conduct of the hearing.

Since the hearing is an inquiry, the basic rules of evidence and natural justice apply. By virtue of the powers conferred on it by the Act, an appeal board may call witnesses by a summons ordering them to appear (subpoena) and to produce any document useful to the inquiry. It may compel witnesses to make an oral or written statement under oath or solemn affirmation.

At the beginning of the hearing, the appeal board chairperson identifies the appeal that is the subject of the inquiry and explains how the hearing will be conducted.

The person representing the department is asked to explain the actions that led to the selection of the person or persons chosen. The explanation should include the duties of the position and the qualifications required to fill it.

The department's representative may then ask witnesses to appear, such as the selection board members, in order to explain the method used to evaluate the candidates, the results of the competition or selection without competition and the reasons why you were not selected. Documents may also be submitted as evidence. You or your representative may cross-examine the department's witnesses.

The appeal board chairperson will then ask you or your representative to state the allegations and present the evidence, in the form of testimony or documents. The department's representative may cross-examine your witnesses.

The department may then present counter-evidence in reply, which will be subject to cross-examination by you or your representative. The Department will then present its response to the allegations.

Successful candidates have the opportunity to cross-examine the different witnesses, testify and make representations as they deem appropriate. If they do so, their testimony is subject to cross-examination. However, if their intervention consists simply in comments or arguments concerning the issues in dispute, it will not be subject to cross-examination.

You will then be entitled to reply to the department's responses and the comments of the successful candidate or candidates.

This concludes the hearing, and the decision is made at a later date.

What happens after the hearing?

After the hearing, the appeal board considers all the evidence and forwards a written decision with reasons to all the parties concerned as soon as possible.

In the case of an appeal against an appointment or a proposed appointment, the decision may be to allow or dismiss the appeal. If the appeal is allowed, the appointment must be revoked; in the case of a proposed appointment, the appointment will not take place. The Public Service Commission may, however, rectify any defect in the selection process identified by the appeal board and re-use the process to propose or make new appointments.

The appeal board has the authority to determine whether the provisions of the Act have been respected and whether the selection process satisfied the merit principle; that is, whether the selection made resulted in the choice of the best candidate. The appeal board may not substitute its judgment for that of the selection board unless the decision of the latter appears completely unreasonable. The appeal board does not have the power to order a department to make an appointment.

Can the decision of an appeal board be changed?

Under section 18.1 of the Federal Court Act, any person directly affected by the decision of an appeal board may apply, within 30 days of the communication of the decision, to the Federal Court (Trial Division) to have the decision of an appeal board reviewed and quashed.

However, such an application may be transferred to the Federal Court of Appeal either with the consent of the parties or at the request of one party if this party can convince the Court that the wait for a hearing in the Trial Division (and possibly in the Appeal Division) would be prejudicial to the proper administration of the department concerned.

Am I entitled to leave to attend a hearing?

All employees, except those who are on leave without pay, retired or suspended from their duties, will receive paid leave to participate in a hearing as an appellant, a representative or a witness. Paid leave is also granted to successful candidates who wish to be present at an appeal hearing. The travel and miscellaneous expenses of witnesses are the responsibility of the parties who call them.

Where can I get more information?

Please contact the Jurisdiction and Case Management Directorate of the Investigations Branch at (613) 995-7009 (help-line) or (613) 996-7029 (fax) or e-mail us.

Disclosure Process

The disclosure process for appeals brought under section 21 of the Public Service Employment Act

This brochure has been prepared by the Investigations Branch of the Public Service Commission (PSC). It provides general guidance on the process for disclosure of information for appeals brought under section 21 of the Public Service Employment Act. For detailed information, please refer to section 21 of the Act and sections 20, 23, 24 and 25 of the Public Service Employment Regulations.

• Disclosure
  
• Purpose of Disclosure
  
• Time Limit for Disclosure
  
• Access to Relevant Information and Documents
  
• Production of Copies of Documents
  
• Hearings on Jurisdictional Issues
  
• Disclosure of Confidential Information
  
• Information Regarding National Security or a Person's Safety
  
• Disclosure of Standardized Tests
  
• Appellant's Allegations
  
• The Successful Candidate
  
• Misuse of Information Received During Disclosure
  
• Disclosure Expenses
  

Disclosure

Disclosure is the process by which the deputy head of the department gives to the appellant information or documents pertaining to the appointment under appeal. It is also the process by which the appellant gives to the deputy head the allegations that he/she will submit to the appeal board.

Purpose of Disclosure

Disclosure ensures that the parties to the appeal have access to the relevant information and documents before the appeal hearing. With this information, they can present their arguments at the hearing knowledgeable of the facts and issues in dispute. Disclosure may preclude the parties from being taken by surprise at the hearing, reduce the need for adjournments, shorten the hearing, and often result in the withdrawal of an appeal.

Time Limit for Disclosure

Full disclosure must be completed within 45 days after the date of the letter of acknowledgment of receipt of the appeal document by the Commission. This period may be extended by the appeal board in certain circumstances. Full disclosure includes the submission of the appellant's allegations to the deputy head.

Access to Relevant Information and Documents

On request, the deputy head must give the appellant access to any information or documents pertaining to the appellant or the successful candidate and that is liable to be disclosed before the appeal board. This may include the following documents:

• notice of competition;
• notice of appointment and right to appeal;
• statement of qualifications;
• position description;
• selection board's report;
• selection tools, including examination questions, expected answers and rating guide;
• appellant's answers to the examination questions;
• assessment of the appellant;
• successful candidate's answers to the examination questions;
• assessment of the successful candidate.

Production of Copies of Documents

On request, the deputy head must give the appellant a copy of any document pertaining to the appellant or the successful candidate and that is liable to be disclosed at the appeal hearing.

Hearings on Jurisdictional Issues

Where an appeal board calls a hearing to deal only with a jurisdictional issue, the appellant is entitled to have access to or copies of information and documents that pertain to the issue of the appeal board's jurisdiction. The department need not give access to information or documents that pertain to the merits of the appeal until the jurisdictional issue has been decided by the appeal board. If the appeal board decides that it has jurisdiction to hear the appeal, the appellant is then entitled to have access to and copies of information and documents pertaining to the merits of the appeal.

Disclosure of Confidential Information

The party that provides a document should block out irrelevant confidential information contained in the documents, such as the candidates' addresses and phone numbers. If the confidential information or document is relevant to the appeal and there is a dispute among the parties concerning disclosure, the appeal board will decide the terms of disclosure.

Information Regarding National Security or a Person's Safety

The deputy head may refuse to give the appellant access to information and documents, or a copy of documents, if disclosure may threaten national security or a person's safety. The appeal board may however, on request, grant access to that information or documents under certain conditions.

Disclosure of Standardized Tests

The deputy head may refuse to give the appellant access to any information and documents, or a copy of documents, pertaining to a standardized test if disclosure might prejudice the continued use of the test or affect its results by giving an unfair advantage to a person. The appeal board may however, on request, grant access to that information or documents under certain conditions.

Appellant's Allegations

Allegations are to be submitted in writing, but in exceptional circumstances they may be submitted orally with the consent of the appeal board. The allegations must be sufficiently detailed to enable the deputy head to respond to them.

The Successful Candidate

The successful candidate has a right to be heard at the appeal hearing. He/she has the right of access to all relevant information and documents before the appeal hearing.

Misuse of Information Received During Disclosure

Information or documents obtained by the appellant during disclosure may be used only for purposes of the appeal.

Disclosure Expenses

Each party will assume the expenses incurred during disclosure, including travel expenses. If the parties live in different locations, information and documentation may be exchanged by mail, facsimile transmission or telephone.

ADR in Appeals (Early Intervention Program)

Are there any alternative processes for conflict resolution and do I have any options other than going through the formal process and hearing?

• ADR in Appeals (Early Intervention Program) - Questions and Answers
• Guiding principles for Early Intervention Program (EI)

ADR in Appeals (Early Intervention Program) - Questions and Answers

What is the Early Intervention Program and what happens during an EI session? How long does it last?

• Answer: ADR means Alternate Dispute Resolution. The EI Program is a voluntary, non-binding process where a neutral third party facilitates communication between parties and attempts to identify, resolve/clarify issues related to an appeal. The EI session usually lasts 3 to 4 hours.

Does disclosure have to take place before the EI meeting?

• Answer: No. However, it is strongly advised that disclosure be completed before the meeting. The parties will be in a better position to discuss their concerns, as they will already know the details of the selection process.

a) Can Early Intervention in appeals be used to solve disclosure disputes?
b) Can it be used to solve workplace conflicts?

• Answers:
  • a) Yes
  • b) Yes

We don't have time to do disclosure - can we do Early Intervention in appeals instead?

• Answer: It's possible. The Regulations require that the appellant and department's representative have disclosure within 45 days after the appeal is acknowledged. If parties are experiencing difficulties, suggest that they exchange pertinent documents, and encourage them to discuss issues related to how the selection process was conducted. If the parties are at an impasse and need a third party facilitator, disclosure can happen through an EI meeting.

Where can I get more information about the Early Intervention Program in appeals?

• Answer: Internet site or contact the Jurisdiction and Case Management Directorate, Investigations Branch, PSC.

What steps does the department have to take?

• Answer: Contact the appellant(s) to ensure there is mutual agreement in participating in an EI session. Contact the Directorate in writing (fax 613-996-7029) to let us know and include information such as availability of all parties within the next 3 weeks, location, etc. Similarly, the appellant could initiate the process by following the above steps.

Do all appellants in the selection process have to agree to EI in appeals?

• Answer: No. It is voluntary.

If there is more than one appellant involved, is the EI meeting held with all appellants jointly or are separate meetings held?

• Answer: It depends on the allegations. If there are common issues among the appellants, the recourse officer would likely try and hold a joint session for those common issues. Separate meetings could be held for individual issues.

Can a successful candidate attend the EI meeting?

• Answer: No. Their rights remain protected. (They may attend under exceptional circumstances only, but this is decided on a case-by-case basis by the recourse officer conducting the EI meeting.)

How are the rights of the successful candidate protected?

• Answer: The opportunity to be heard at the appeal hearing remains.

Will EI in appeals slow down the appeal process?

• Answer: No, it should not. As it runs parallel to the formal process, it may even expedite it.

Can we ask for EI in appeals even if the 45 day disclosure period is finished?

• Answer: Yes, as long as the hearing isn't postponed. (The hearing will only be postponed in exceptional circumstances.)

Is everything said at the EI meeting confidential?

• Answer: It depends on what is agreed upon by the parties in consultation with the recourse officer at the beginning of the session. Information concerning the selection process (disclosure) is generally not confidential; however, other information (contextual issues/ resolution discussions) may remain confidential.

What is the role of the recourse officer during EI in appeals?

• Answer: The recourse officer is a facilitator/mediator, as well as an active listener who aids communication between the parties. The recourse officer is not a decision maker in the EI session, but may help the parties to resolve their concerns.

What benefit will EI in appeals be to an appellant? department's representative? manager?

• Answer: EI in appeals may clarify and resolve the concerns of the appellant much more quickly than going to a formal appeal hearing. The EI meeting is a more informal and less confrontational process where the parties are encouraged to openly discuss their concerns in a more comfortable atmosphere. For the department's or the appellant's representative, it may save preparation time for the appeal hearing. For the appellant and manager it may improve working relationships. The EI process may result in the withdrawal of the appeal or a concession by the department.

Is the resolution agreed to during EI in appeals binding?

• Answer: Any agreement reached between parties concerning their individual concerns is binding. However there can be no binding resolution that affects the outcome of the selection process. For example, if the department concedes that the selection was not made according to merit, the appeal must be conceded at a formal appeal hearing in order to give the successful candidates an opportunity to be heard.

Guiding principles for Early Intervention Program (EI)

Are there any alternative dispute resolution (ADR) processes in my workplace, and do I have any options other than going through the formal appeal process and hearing?

FOREWORD

The guiding principles outlined below are to be applied by the Investigations Branch of the Public Service Commission (the Commission) to the EI program for appeals brought under section 21 of the Public Service Employment Act (PSEA).

For further information, contact the Jurisdiction and Case Management Directorate, Investigations Branch at (613) 995-7009 or investigations-enquetes@psc-cfp.gc.ca.

PURPOSE

The Early Intervention Program is a voluntary, non-binding process designed to assist an appellant and a Department (the parties) to address, and where possible, to resolve concerns which relate to a selection process, in a non-adversarial context before proceeding to the formal appeal hearing. It is designed to facilitate an early resolution to staffing disputes and contextual issues, to assist communication in disclosure, and to render any necessary appeal hearing more efficient, less time consuming, and less costly.

GUIDING PRINCIPLES

1. In order to permit open discussion of concerns, the parties will be encouraged to fully disclose documents/ information relevant to the appeal, before the EI meeting, if possible.

2. Depending on specific circumstances, the role of the person conducting the EI meeting (the recourse officer) will include:

• facilitating disclosure between the parties, by helping to identify documents and information relevant to the appeal;

• facilitating the resolution of issues/ concerns of the parties related to the staffing action, by discussing the jurisprudence and standards of proof applicable to the appeal, identifying and resolving contextual or systemic matters which may be unrelated to specific allegations;
  

• facilitating the preparations of the parties for a subsequent appeal hearing by identifying those issues which are within the jurisdiction of an Appeal Board, and by assisting the parties to clarify the allegations, so that they are concise and complete.

3. The recourse officer:

• will act as an employee of the Commission;
• will ensure that the merit principle is safeguarded;
• will not conduct any appeal hearing resulting from the meeting;
• will not give evidence on behalf of either party in a subsequent proceeding.

4. Communications between the parties and with the recourse officer regarding the selection process and the appeal will not generally be considered to be confidential, as they are part of the disclosure process. However, communications regarding resolution of the concerns of the parties may be considered to be confidential, as determined by the parties on the advice of the recourse officer. In this instance parties may be asked to sign a confidentiality agreement.

5. As a general practice, an EI meeting will be held within three (3) weeks of the Jurisdiction and Case Management Directorate receiving notice of agreement by the parties to proceed with such a meeting. Nevertheless, the scheduling of an appeal hearing will generally not be delayed because of an EI meeting.

6. The parties may be accompanied during the EI meeting by a person whose role is to help them present their views and to work towards a resolution of the matter.

7. All expenses incurred by the parties or their representatives shall be borne by the parties. The cost of the services of the recourse officer will be borne by the Commission.

8. If there is more than one appellant to a particular staffing action, the recourse officer will determine, in consultation with the Department and the appellants or their representatives, whether the matter will be dealt with through a single meeting which involves all appellants and the Department, or whether it will be conducted through separate EI meetings. The preferred method would be to conduct a joint meeting involving all appellants.

9. If asked to do so, the recourse officer may give a verbal opinion on the merits of the arguments advanced by the parties. This opinion will not in any way bind the Appeal Board who will hear the appeal if the appeal proceeds to a hearing.

10. Successful candidates in a staffing action will not generally be invited to participate in an EI meeting, since their rights are fully protected in the appeal process at the stage of the appeal hearing.

11. At the end of the EI meeting, the parties may be asked by the Investigations Branch to provide their feedback on the meeting. Such feedback will be used by the Investigations Branch to evaluate the future use of EI meetings for appeals under section 21 of the PSEA.

For frequently asked questions, refer to http://www.psc-cfp.gc.ca/recours/appeals/questions_e.htm