Guide to Implementing the Corrective Action and Revocation Policy

Document Status:
Draft: Working version
Effective Date:
December 2005

 

This Guide is provided by the Public Service Commission to help human resources advisors support deputy heads in developing organizational approaches.

Table of Contents

  1. Introduction
  2. Context
  3. Legal Basis
  4. Why a Policy?
  5. Policy Statement
  6. Application
  7. Policy Requirements
  8. Other Requirements

I. Introduction

This Guide is intended to assist human resources advisors in understanding the Public Service Commission's (PSC) Corrective Action and Revocation Policy. It explains the values that are fundamental to the Policy and how the PSC expects it to be implemented.

II. Context

Under the Public Service Employment Act (PSEA), the following have authority to take corrective action and revoke appointments:

  • the Public Service Staffing Tribunal (PSST);
  • PSC (the Commission); and
  • the deputy head with delegated appointment authority.

The policy described in this Guide applies only to the deputy head's authority with respect to appointments made or proposed as a result of delegated internal appointment processes.

In order to put into context the deputy head's authority in this area, the circumstances in which the PSST and the Commission might take corrective action or revoke an appointment are outlined.

Public Service Staffing Tribunal (PSST)

The PSST is a new independent tribunal which provides recourse with respect to complaints about appointment processes and lay-off. Persons who participate in an internal appointment process and those in the area of selection for a non-advertised appointment may complain that:

  • they were not appointed by reason of:
    1. an abuse of authority in setting or applying the merit criteria;
    2. an abuse of authority in choosing between an advertised and a non-advertised process; or
    3. failure to assess in the official language of choice;
  • that the decision of the deputy head or Commission to revoke an appointment was unreasonable;
  • that there was an abuse of authority in the implementation of corrective action following an order of the Tribunal; and
  • that a person's selection for lay-off was an abuse of authority.

PSC

Under the PSEA, the PSC has the authority to investigate, revoke and take corrective action with respect to:

III. Legal Basis

The PSEA sets out the authority of deputy heads to take corrective action or revoke an appointment in section 15(3). The Act specifies that when the authority to make internal appointments is delegated to a deputy head, the authority to revoke or take corrective action must also be delegated. This allows organizations to manage their own appointment processes, and if needed, correct any mistakes that are made. This process is not intended to be complaint-driven. The deputy head's authority is discretionary, which means that he or she has the authority to decide whether to investigate, take corrective action or revoke an appointment. The deputy head may make such decisions based on information that comes from any source, including monitoring or internal audit, or from an employee or manager.

While the decision to investigate a staffing process is discretionary, the PSEA requires that the deputy head, before revoking an appointment or taking corrective action, conduct an investigation. The PSEA is silent on how the investigation is to be conducted, but the PSC policy sets out some requirements. Organizations already have experience in conducting investigations on all sorts of matters, and each organization may well tailor its investigations to its particular way of doing things.

Another condition that must be met in order to revoke or take corrective action is that the deputy head must be satisfied that an error (for example, a manager mistakenly believed the appointee was in the area of selection), omission (for example, a manager did not assess an essential qualification) or improper conduct (for example, a manager hires her best friend solely based on the fact that they are friends, rather than because he meets the merit criteria of the position) affected the selection for appointment. Thus the focus is on the appointment, not on persons who were not appointed. This highlights the difference in the investigation carried out by the deputy head, which focuses on the propriety of the appointment, whereas a complaint to the PSST involves a person complaining that they were not appointed, for one of the reasons stated earlier.

Before revoking or taking corrective action, a deputy head must conduct an investigation and make a finding of:

  • error;
  • omission; or
  • improper conduct which affected the selection for appointment

Finally, the PSEA provides that where an appointment is revoked, the Commission may appoint the person to another position if satisfied that the person meets the essential qualifications for the position. This authority has been delegated to deputy heads.

Sub-delegation

The PSEA authorizes the deputy head to sub-delegate most of its authorities under the Act, one exception being the power to revoke an appointment. Thus the authority to investigate, make findings and to take corrective action may be sub-delegated within an organization.

IV. Why a Policy?

The Corrective Action and Revocation Policy is a key policy in upholding the guiding values of fairness and transparency. Deputy heads will be responsible for providing persons affected by an action with a reasonable opportunity to present relevant facts and have his or her position fully and fairly understood, prior to deciding on corrective action or revoking an appointment.

The authority to revoke or take corrective action is a new authority for deputy heads. Under the previous PSEA, deputy heads had the power to investigate situations within their organization, but only the PSC had the power to take corrective action or revoke an appointment. The organization had to inform the Commission of irregularities; the PSC would then make a decision whether to investigate, and ultimately whether to take corrective action and to revoke an appointment.

The Commission issued a policy, which, in part, requires each deputy head to develop an organizational policy on corrective action and revocation.

Another reason for establishing the PSC policy and requiring the department to have its own policy was the seriousness of the possible consequences of the decision to take corrective action or revoke an appointment. This decision could result in loss of employment. Thus the policy focuses on procedural fairness during the process leading up to the decision.

For these two reasons, the Commission decided to put in place a policy outlining the minimum requirements to ensure a fair and transparent corrective action and revocation process. In addition, it would require organizations to consider and develop their own policy and would also give them the opportunity to create a policy to meet the needs of their organization.

V. Policy Statement

The Policy Statement outlines that before any decision is made to take corrective action or revoke an appointment, the deputy head must give any person(s) affected by the action, a meaningful opportunity to present relevant facts and to have their position fully and fairly considered. This statement highlights the importance of procedural fairness in the decision-making process.

Who is a person affected by the action?

Generally speaking, a person affected by the action is someone whose status in an appointment process could change as a result of corrective action or revocation, such as:

  • a person whose appointment may be revoked;
  • a person whose proposed appointment may not be made;
  • persons who will have to be re-evaluated;
  • persons found qualified for appointment, but who may not be after the action;
  • a sub-delegated manager; and
  • members of the assessment board.

In many cases it will be obvious who will be affected by the corrective action or revocation. For example, if an appointment has been made through a non-advertised process and it is later discovered that an essential qualification was not evaluated, then the appointee will be affected by the action and must be informed of the omission and given an opportunity to present relevant facts and arguments.

In other instances, it may be more difficult to determine who will be affected by the corrective action and revocation. If, after investigation, it is determined that an assessment tool was not reliable, it may be necessary to develop a new tool and correct the defect by administering the new tool to all those who were initially assessed in an advertised process. In this case, the persons affected would be all of those initially assessed.

What is meant by a meaningful opportunity to present relevant facts and to have their position fully and fairly considered?

A meaningful opportunity to present relevant facts and to have their position fully and fairly considered has two main aspects. The first is that an affected person is informed of the situation, and given an opportunity to clarify the situation and to present facts and arguments.

In the previous example of the appointment following a non-advertised process in which an essential qualification was not evaluated, the appointee would be informed of the following:

  • the omission;
  • the intended corrective action to remedy the omission (to evaluate the qualification); and
  • that his or her appointment might be revoked should he or she not meet the essential qualification.

He or she should then have the opportunity to ask questions or verify relevant documents. He or she may also present relevant facts and express an opinion on the situation.

The second aspect is having one's position fully and fairly considered. The person making the decision with respect to corrective action should be objective. That is, they should not have been involved in the appointment process, and therefore are able to make a reasoned decision based on the facts.

VI. Application

In the policy, the heading of Application has been added for the purpose of clarifying the specific circumstances under which the deputy head may make a decision to take corrective action or revoke an appointment.

Because the PSEA allows three different bodies (PSST, PSC and deputy head) to revoke or take corrective action depending on the circumstances, it was necessary to set out that this policy applies only to deputy heads with respect to appointments made or proposed as a result of delegated internal advertised and non-advertised processes. It applies to proposed appointments as well as appointments, because even though a proposed appointment cannot be revoked, it still may be the subject of corrective action. For example, a deputy head may have proposed an appointment, only to discover several weeks later that an essential qualification had not been evaluated. The corrective action would likely be to evaluate the qualification.

This policy also applies where the deputy head has requested that the Commission investigate an internal appointment process. The role of the Commission in this situation is to make findings of fact and report them to the deputy head. The deputy head retains the authority to revoke the appointment or take appropriate corrective action.

This policy does not apply to:

  • the PSST. In any complaint regarding an internal appointment process before the PSST, the person making the complaint, the person appointed or proposed for appointment, the deputy head and the Commission are entitled to be heard by the Tribunal.
  • the Commission, in carrying out its own authority to investigate, revoke or take corrective action. The Commission's authority in this area is for external appointment processes or any appointment process (external or internal) that was not free from political influence or where fraud may have occurred. Where the Commission conducts an investigation, the person whose appointment or proposed appointment is in question, and the deputy head, are entitled to make submissions.

VII. Policy Requirements

1. Deputy heads must establish an organizational policy on Corrective Action and Revocation:

Deputy heads will be responsible and accountable for respecting the Commission policy, and will have to meet the requirement to establish their own policy. Because deputy heads develop their own policy, they can craft it in such a way that it meets their organizational needs; this will increase buy-in by those who have helped develop, or those who have been consulted, on the policy. It is suggested that organizations consult as broadly as possible in the development of this policy.

The Commission policy sets out the minimum provisions which must be included in an organizational policy.

1.1 One of these requirements is that prior to deciding to take corrective action or revoke an appointment,

  • persons affected have an opportunity to be heard; and
  • the deputy head is satisfied that there has been an error, omission or improper conduct which affected the selection of the person appointed or proposed for appointment.

In their organizational policy, deputy heads may wish to outline the components of the opportunity to be heard. At a minimum, this would include informing affected persons of the possible defect in the process and allowing them an opportunity to provide information to the investigator. For example, if an assessment board omitted to evaluate an essential qualification, all those who were assessed should be informed that there has been an omission and in order to correct this, evaluating the qualification through a written exercise is being proposed.

Once the deputy head (or delegate) has heard from all affected persons, he or she must evaluate the information and be satisfied that an error, omission or improper conduct occurred. In addition, the defect must have affected the selection of the person appointed or proposed for appointment. For example, if a manager was part of an assessment board and one of the candidates was the manager's brother, who was not considered for appointment, there might be a finding of improper conduct, but since it did not affect the selection for appointment, no corrective action would be taken against the appointment.

Corrective action may be taken against a manager or member of an assessment board, particularly in the case of alleged improper conduct. It is important to ensure that these persons are given the opportunity to be heard prior to taking corrective action.

1.2 In the case of revocation, there are specific policy requirements. The person 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.

Due to the seriousness of the impact of the decision to revoke, and in order to mitigate the risk of an employee being treated unfairly, this requirement must be respected. A high degree of procedural fairness is required in situations where an individual could suffer a loss of livelihood, and providing the statement in writing ensures that the person is advised of the necessary information: the effective date upon which he or she will no longer be in that position.

Another requirement which must be followed is that the employee is informed, following a revocation, whether or not the deputy head will appoint them to another position for which they meet the essential qualifications. This flows from the guiding value of transparency, wherein the person is advised of consequences and outcomes, one of which could be whether or not they may receive a possible appointment to another position. Whether the deputy head decides to appoint the employee to another position will depend on the circumstances of the case, but it may be appropriate to consider appointment to another position where the error, omission or improper conduct was not a result of the actions of the employee.

The only requirement is that the employee meet the essential qualifications of the position to which they will be appointed. There is no requirement to re-appoint to the position which they held prior to the revoked appointment, although this has often been done in the past. Organizations may wish to consider outlining their criteria for reappointing employees following revocation in their organizational policy.

Another requirement states that when the circumstances involve revocation, the employee must be advised of the right to file a complaint and the time period within which to make a complaint to the PSST on the grounds that the revocation was unreasonable. This statement promotes transparency in the process in that recourse to the PSST is openly stated, therefore allowing the individual to know and understand their rights.

Of benefit to the managers is the fact that the requirements are specific enough to ensure adherence to procedural fairness, yet flexible enough to allow the deputy heads to create their own process and system.

2. Deputy heads must suspend their investigation and refer the matter to the PSC if there is reason to believe the appointment was not free from political influence or where fraud may have occurred

It may be discovered during an investigation by the deputy head, that an appointment was not free from political influence. For example, a deputy head may be investigating a situation where there is suspicion of personal favouritism on the part of the assessment board or manager. Information may come to the attention of the investigator that the Minister or a Member of Parliament contacted the assessment board on behalf of the appointee. The investigation must be suspended and referred to the Commission , which has the sole authority to investigate in these circumstances. If the appointment is found to have been subject to political influence, the Commission will take corrective action or revoke the appointment. If not, the matter will be sent back to the deputy head who may decide to continue his/her investigation or not.

Similarly, if in the context of an investigation of alleged error, there is reason to believe that fraud may have occurred in the appointment process, the investigation must be suspended and referred to the Commission. For example, a deputy head may be investigating an alleged error that the appointee does not have the required education for the position. During the investigation it becomes apparent to the investigator that the appointee misrepresented her educational qualifications. At that point, the organization must suspend its investigation and refer the matter to the Commission.

3. Deputy heads are required to establish a monitoring and review mechanism for corrective action and revocations.

The reasons for this are as previously stated:

  • this is a new authority delegated to deputy heads;
  • there is a need for a high degree of procedural fairness due to the potential ramifications of the decision;
  • there are rights which must be respected; and
  • there will be a need for the Commission to provide oversight, which can best be accomplished if information is readily available on the number and types of corrective actions taken and the number of appointments revoked. In this way, both the deputy head and the Commission can be aware of the areas which pose the greatest risks for mistakes and suggest appropriate methods for preventing further errors, omissions or improper conduct.

VIII. Other Requirements

As with other parts of the appointment process, it is important to keep in mind requirements concerning official languages. Communications with respect to corrective action or revocation must be in the official language of choice of the person(s) affected by the decision, regardless of the type of process, location of the position or language requirements of the position.

The duty to accommodate persons protected under the Canadian Human Rights Act applies with respect to corrective action and revocation. For example, persons with disabilities are entitled to accommodation such as ensuring that documents are in accessible formats.