Sections 66 and 69 – Founded – Office of the Chief Electoral Officer (Elections) – Merit not met, error and fraud – Improper identification of first official language for language testing purposes

Sections 66 and 69 – Founded – Merit not met, error and fraud – Improper identification of first official language for language testing purposes

Authority: This investigation was conducted under sections 66 and 69 of the Public Service Employment Act, S.C. 2003, c.22, ss. 12 and 13 (the “Act”).

Issue: The purpose of this investigation was to determine whether the employee committed fraud in an advertised external appointment process by misinforming the department about previous language test results. The investigation was also to determine whether irregularities in the process may have affected the merit of the employee's appointment or whether there was an error, omission or improper conduct that affected the selection of the employee for appointment.

Conclusions: Sec. 69 - The evidence demonstrated, on the balance of probabilities, that the employee committed fraud during the appointment process by intentionally misinforming the department about his actual first official language for Second Language Evaluation (SLE) purposes.

Sec. 66 - The evidence indicated that the appointment was not based on merit as the employee did not meet the language requirements of the position at the time of the appointment. The evidence also showed that the hiring manager and the human resources advisor (HRA) did not correctly determine in which official language to assess the employee for SLE purposes; consequently, this error affected the selection of the employee for appointment.

Facts: The Public Service Commission (PSC) Appointment Policy – Official Languages in the Appointment Process stipulates that deputy heads must ensure that proficiency in the second official language, aside from certain circumstances, is assessed using the SLE tests or other assessment methods authorized by the PSC. Moreover, the PSC Guidance series – Official Languages in the Appointment Process indicates that the proficiency in English, in French or both must be assessed, for each appointment, as required for the work to be performed. Although deputy heads are not required to respect this guideline, it does complement the above policy. An appointment based on merit signifies that the person to be appointed meets the essential qualifications of the work to be performed, as established by the deputy head, including the official language proficiency.

The employee in question was assessed in English. The department appointed him to a management position that required an advanced level of language proficiency - bilingual imperative CCC/CCC. At the time of appointment, the employee exceeded the C level in English.

Two years later, the department uncovered a discrepancy concerning the employee's language test results. They recognized that the employee was tested in English for SLE purposes, however, given the circumstances, the employee should have been assessed in both official languages during the appointment process. The department had the employee complete the SLE in French but he was unsuccessful in attaining the required proficiency.

The evidence demonstrated, on the balance of probabilities, that the employee committed fraud when he indicated that French was his first official language and therefore intentionally misled the department during the appointment process to improve his chances of appointment. Several factors contributed to the improper determination of the employee's first official language for SLE testing purposes. In the application, the employee indicated that English was his first official language and requested the interview and written assessments in English during the appointment process. The employee initially informed the HRA that his first official language was English, for reasons of SLE testing. Before the test date, however, he clarified that he had to be tested in English, so the department modified the request for SLE testing from French to English. Conversely, the employee testified that French was his mother tongue, he studied in French and used it more regularly than English.

Furthermore, the employee indicated in his résumé that he had been previously assessed for level C by another government organization. The evidence showed that the department did not verify these results and the employee did not provide any concrete evidence of such results. The PSC also had no prior SLE results for this employee. On the balance of probabilities, the employee was not certified to level C, as he had indicated to the department.

On the first day of his appointment at the department, the employee designated English as his first official language when he completed the departmental form Language Situation of the Employee. The form contained clear instructions for employees to identify their first official language, for purposes of language testing, and the personnel information systems. The employee testified that he didn't understand how to complete the form, yet there was no evidence that he sought or received advice on how to complete it.

The collective evidence indicates that the employee should have been assessed in both official languages before the appointment was made and that both the hiring manager and the HRA incorrectly decided to have the employee tested in English. The evidence also shows that the discrepancies were found two years after the employee's appointment. This error affected the selection of the employee for appointment since he did not meet the language requirements of the position.

The evidence also shows that the employee was assessed in his first official language, for SLE purposes, before the appointment, rather than his second official language. The PSC had no other valid SLE test results for the employee before the appointment. The employee's appointment was therefore not based on merit as he did not meet the language requirements of the position, level C, at the time of the appointment.

Corrective actions: The Commission ordered that:

• The employee's appointment be revoked;
• For the prescribed three year period, the employee must obtain the Commission's written approval before accepting any position or work within the federal public service. Should the employee accept an appointment without having first obtained such an approval, his appointment will be revoked; and
• For the prescribed three year period, should the employee obtain work through casual employment or student programs within the federal public service without first notifying the Commission, a letter will be sent to the deputy head advising of the fraud the employee committed, with a copy of the investigation report and decision on corrective action.

The department has implemented new procedures to avoid similar situations in the future and will review candidates' applications prior to assessing language profiles.

Investigation File No.: 13-14-01