The Public Service Employment Act (PSEA) places an emphasis on oversight and the PSC's accountability to Parliament for safeguarding the integrity of appointments in the public service.
- Which Appointment Processes Can Be Investigated by the PSC?
- About the Investigations Branch
- General Process for Mandated Investigations
Which Appointment Processes Can Be Investigated by the PSC?
Mandated Investigations Under the PSEA
Investigations of appointment processes is one way the PSC will carry out its strengthened oversight capacity. Pursuant to the PSEA, the PSC can investigate staffing situations relating to:
- external appointments (formerly known as open competitions)
- internal appointments, if not delegated to an organization (formerly known as closed competitions)
- appointments involving possible political influence
- appointment processes where fraud is suspected
The PSEA sets out the grounds which must be present for these types of investigations. These are:
- Any external appointment process on the grounds that the appointment did not respect the merit principle or there was an error, omission or improper conduct that affected the selection of the person for appointment (section 66).
- Any internal appointment process conducted by the Commission itself where the appointment authority is not delegated to the department, on the grounds that there was an error, omission or improper conduct that affected the selection of the person for appointment (subsection 67(1)).
- Any appointment process which the PSC has reason to believe was not free of political influence (section 68).
- Any appointment process which the PSC has reason to believe was tainted by fraud (section 69).
The Commission has established a Policy on Considerations for Investigations Conducted under the PSEA by the PSC Relating to External Appointments, Non-delegated Internal Appointments and Appointments Involving Political Influence or Fraud. The Policy outlines the requirements adopted by the Commission which will be considered by the Commission in exercising its discretion to conduct these investigations.
Deputy Head Requested Investigations
Under the PSEA deputy heads will receive simultaneously the appointment power and the ability to take corrective measures for internal appointment processes. Therefore, deputy heads will be able to correct their own internal staffing actions. For this purpose, deputy heads have the choice of conducting their own investigations or asking the PSC to do so on their behalf.
The Commission has established a Policy on Investigations Conducted under the PSEA by the Public Service Commission at the Request of a Deputy Head which sets out the considerations and conditions under which the Commission will conduct an investigation into an internal appointment process, at the request of the deputy head.
For more information, contact us.
Please note: for other questions, issues, concerns regarding delegated internal appointment processes, contact the organization concerned and/or the Public Service Staffing Tribunal (PSST).
About the Investigations Branch
The PSC's Investigations Branch will carry out both PSC mandated and Deputy Head requested investigations. As well, the Branch will provide related early intervention processes, when appropriate.
The Investigations Branch staff has expertise in the public service system and knowledge of public service organizations. Investigations are conducted in a timely manner, using fair and thorough techniques to produce clear and concise reports.
General Process for Mandated Investigations
A. Decision to Investigate
1. In deciding whether to investigate an appointment process, pursuant to sections 66, 67(1), 68 or 69 of the PSEA, the Investigations Branch (on behalf of the Commission) will consider information received from a variety of sources, such as, but not limited to, audit findings, concerns raised by individuals, internal information, media reports and others.
2. The Investigations Branch will review the information received and take into consideration whether the matter falls within the seven criteria outlined in the Commission's Policy on Considerations for Investigations Conducted by the PSC Relating to External Appointments, Non-delegated Internal Appointments, Appointments Involving Political Influence or Fraud, which are:
- whether the matter falls within the Commission's jurisdiction under sections 66, 67(1), 68 or 69 of the PSEA;
- whether the matter raises the possibility of a problem in the application of the PSEA that affected the selection for appointment or a breach of the PSEA, the Public Service Employment Regulations (PSER), Commission policies or the terms and conditions of delegation;
- whether the information received indicates the possibility of a pattern of irregularities in the application of the PSEA, PSER, Commission policies or the terms and conditions of delegation;
- whether the matter has come to the attention of the Commission by a person involved in the process within six months of the appointment being made or proposed; however, the Commission may, in the interest of fairness and the protection of merit, extend this time period;
- whether the matter has come to the attention of the Commission by any other means, and the Commission believes it should intervene, whether or not it is within six months of the appointment being made or proposed;
- there exists the possibility of implementing corrective action; and
- there is no recourse available for the matter through other avenues.
3. If the Investigations Branch decides not to investigate the appointment process, it will, if appropriate, inform the source of the concern of its decision and the reasons for it.
B. Early Intervention
4. For investigations under section 66 and/or subsections 67(1) or 67(2) an early intervention process if appropriate, may be offered prior to the investigation phase. For more information on early intervention, contact us.
5. As required by the Act, investigations will be conducted "as informally and expeditiously as possible" (PSEA, subsection 70(2)). Various investigative methodologies will therefore be utilized to increase the timeliness and efficacy of investigative processes. Investigations can be conducted in different ways : by fact finding meeting, by written representations, on site visits or by teleconference. It is up to the investigator to determine, in light of the circumstances of each case, which approach seems the most appropriate.
6. From issues raised or identified, investigations look to establish relevant facts and to arrive at a conclusion. That being done, corrective measures can be considered, if necessary. All administrative investigations conducted in the public sector, regardless of the method used, must be carried out in a manner which conforms to the requirements of procedural fairness when they affect the rights, or interests of an affected appointee or proposed appointee. These principles include the right to be heard (orally or otherwise), the right to an impartial hearing, the right to be represented and the right to a decision with reasons.
7. Where an investigation concerns an appointment or proposed appointment the appointee and the deputy head are "entitled to make submissions" to the investigator (PSEA, section 72).
8. In conducting an investigation, the Commission has all the powers of a Commissioner under Part II of the Inquiries Act. An investigator assigned by the Investigations Branch, acts on behalf of the Commission and would have the same powers. This means that, if necessary, the investigator may subpoena witnesses and documents relevant to the investigation, may enter or have access to any public office and may examine all documents and records therein.
9. There are several aspects to disclosure which may impact on the investigations carried out by the PSC investigators. The disclosure sections (sections 19 and 20) of the PSER provide that the Commission (and/or the Investigator acting on behalf of the Commission) may disclose personal information obtained in the course of an investigation, pursuant to sections 66, 67(1), 68, 69 of the Act. The criteria for such disclosure, as stated in the Regulations are: "if disclosure would
- promote fair and transparent employment practices,
- promote accountability
- ensure that action is taken to correct wrongdoing or improper employment practices and prevent the recurrence of such practices; or
- encourage the adoption or continuance of proper employment practices"
10. The above criteria , therefore, allow the Commission to publish an investigation report (in whole or in part) if one of these criteria is met. However, section 19(2) of the Regulations provides that prior to disclosure "that could infringe privacy interests, the Commission shall consider whether the public interest in disclosure outweighs those privacy interests".
11. As a result of this discretionary authority of the Commission, PSC investigators will advise those persons involved in the investigation that the Commission has the discretionary authority to publish the results of any investigation, including the possible disclosure of personal information.
12. Also pursuant to the disclosure sections of the PSER (section 20), the PSC Investigator, on behalf of the Commission, will not disclose during the course of a investigation a standardized test or information concerning a standardized test, unless it can be disclosed in a manner that will not affect the validity or continued use of the standardized test or will not affect the results of such a test by giving an unfair advantage to any person.
13. A standardized test is defined in the Regulations as "a systematic procedure for sampling an individual's behaviour in order to evaluate job-relevant competencies. The procedure is systematic in five areas: development, content, administration, scoring and communication of results. The content of the test is equivalent for all test-takers. The test is administered according to standard instructions and procedures and is scored according to a set protocol".
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