Statutory responsibilities under the Civil Service Act
In 1994, the Civil Service Commission was amalgamated with the Office of the Ombudsman. Through a change to the Civil Service Act, the Ombudsman was made responsible to hear appeals and investigate complaints regarding the selections for appointment to the Civil Service. However, in December 2009, new amendments to the Civil Service Act significantly reduced the Ombudsman’s authority.
On December 1, 2009 substantial amendments to the Civil Service Act came into effect and, as a result, the way by which an appointment within the New Brunswick Civil Service can be reviewed or challenged has changed considerably. One of these modifications involves the basis on which a review or challenge of an appointment can be initiated by an unsuccessful candidate.
Pursuant to the amended Act, where a candidate is screened-in for further assessment in the context of an open or closed competition but is not successful, this person may challenge an appointment “if the candidate has reason to believe that the successful candidate was appointed to the position because of favouritism. Favouritism is the only ground on which a complaint may be submitted to our Office pursuant to the amended Civil Service Act under the complaint process. Favouritism means giving preference to a candidate that is based on factors that supersede the assessment of qualifications, and that is attributable to a relationship or connection that is external to the workplace.
In accordance with established practice and the relevant provisions of the Civil Service Act, the first level of review is done by an unsuccessful candidate requesting from the Department of Human Resources an explanation as to the reasons why they were not successful in obtaining an appointment to the vacant position. The task of responding to this request will likely be delegated to departmental human resources staff.
If an unsuccessful candidate remains unsatisfied with the initial response and once they have been notified that a person has been appointed to the position, they may, within 30 days, forward a complaint to the Deputy Minister of the Department of Human Resources and clearly state how they believe that the appointment of the successful candidate was based on favouritism. The Deputy Minister may choose to investigate the matter or dismiss the complaint.
Finally, if, after receiving the Deputy Minister’s response to a request to have an appointment process investigated, the unsuccessful candidate remains unsatisfied, they may, within 30 days, file a complaint with the Office of the Ombudsman alleging that the successful candidate was appointed on the basis of favouritism. The Office of the Ombudsman cannot intervene in the process before the two first steps outlined above have been taken.
In summary, the three steps available to screened-in candidate to challenge the appointment of the successful candidate to the relevant position are as follows:
- Send a written request to the Department of Human Resources requesting feedback as to why they were not successful in obtaining the appointment.
- If an individual remains unsatisfied after receiving feedback, they can send a formal complaint to the Deputy Minister of the Department of Human Resources indicating how they believe that the appointment of the successful candidate was based on favouritism.
- After receiving the response from the Deputy Minister, if the individual remains unsatisfied, they may, within 30 days, file a complaint with the Office of the Ombudsman.
If the Ombudsman investigation finds that a complaint has merit, the Ombudsman can make a recommendation to government. The Ombudsman cannot revoke an appointment.