If anyone has read my HR guide, you already know that there are notices of appointments that go up on the Jobs.gc.ca portal. When it is a non-advertised appointment, and it says promotion, you really have almost no idea why the person is being promoted. It just says “non-advertised” and “promotion”.
Common rationales for non-advertised appointments
From a process perspective, a non-advertised appointment is a perfectly valid tool to be used by any manager. The requirement isn’t to assess everyone everywhere in the world for the position, nor even to choose the best candidate available, it’s to demonstrate that the person being appointed meets all the merit criteria.
One rationale (A) for that appointment might be that they were in the job for 2 years on an acting basis, have clearly demonstrated they meet all the requirements for the job, and are performing at-level for the position. The manager could run an open competition, and lots of people would say that was the fairest option, but the likely result is the person will make the pool and get selected. There might be people with better qualifications, but not better experience than the person doing the job already. One might quibble about how they got the acting in the first place, but that’s a separate issue. The strongest probability is the person will apply, make the pool, and get selected, while everyone else involved is wasting their time. And, as I said, the person already meets all the qualifications and so merit can be demonstrated in the appointment. Easy peasy lemon squeezy, plus a bunch of paperwork to dot all the Is and cross all the Ts to make sure HR and their bosses are doing their due diligence that the manager isn’t just doing something that is easy over something that is proper. Unions are between a rock and a hard-place on this because while they prefer open competitions, they also like to see incumbents keep their positions.
Another common rationale (B) is that the position was reclassified, the person is being reclassified with it, and similar to the first example, they’ve already demonstrated their ability to do the job because they were already doing it. For most people, this seems like a no-brainer. The position was under-classified, perhaps it was really an AS-05 job instead of an AS-04, so when the position gets changed, the person who was in it can be reclassified and promoted too. It would be pretty harsh to have someone doing a job for three years, have the system declare it really an AS-05 job, and then kick you out of it because you’re only a -04 even though you’ve been doing the job already.
A third common rationale (C) is a development program. Lots of departments have had various developmental programs over the years, where a candidate starts as an EC-02, for example, takes a bunch of training and completes some internal assignments, has a performance review against an EC-03 position, and the manager recommends with a committee concurring that the person is ready for a promotion. It’s another non-advertised appointment.
All three of these are “other” obvious reasons why someone could be appointed even though there was no process of selection. I’m ignoring, for the moment, the option (D) where someone is literally plucked from nowhere, and the manager is deciding that they meet all the criteria and is appointing them. It can be done, but it’s a harder sell, management-wise, unless perhaps it’s an emergency or a really difficult position to fill. And obviously, the paperwork for this type of appointment is a lot harder to fill out and document.
But the most common rationale (E) for a non-advertised appointment is actually a misnomer since they’re matching another pool. It is when someone else ran a competition, the candidate made it into the pool, and a manager wants to hire them, BUT the same manager isn’t the one who ran the competition and has no ability to directly pull from the pool. This is often the case across departments. For example, PHAC runs a competition, someone at ESDC applies and makes it to the pool, PHAC doesn’t pull them, and so they want to be “promoted” at ESDC. Sure, the merit criteria has to be similar — you can’t qualify as a veterinarian at Agriculture Canada and use it to be appointed as a statistical researcher at Transport — but in large categories like AS, PM and EC, many of the statements of merit are really close. In the EC category, some of them are IDENTICAL across departments as we have moved to relatively generic job descriptions and SOMCs. Sooooo, the manager at ESDC wants to pull from the pool, but they don’t have that authority. It’s a PHAC pool for PHAC’s use, under PHAC’s authority. However, the ESDC manager CAN use their OWN authority to do a non-advertised appointment with part of the rationale being that the candidate proved their merit in the other pool. After all, what better evidence could you ask for than the fact the person was tested on all the same criteria under all the same rules as you would use if you ran the process?
Considering challenging a non-advertised appointment
When the non-advertised appointment “Notice of Consideration” goes up on the jobs portal, all it usually says is “Non-advertised” and “Promotion”. It almost NEVER specifies a reason. Yet the whole point of a NOC or a NAPA is to alert people to an appointment being made and to signal to them that they may have the right to appeal the appointment. So let’s assume that someone is appointed in your area to a job that you wanted and were hoping they would run a competition for, but instead they went non-advertised. You didn’t get a chance to compete. Can and should you appeal?
Perhaps, but here’s the kicker. Your chance of success will depend heavily on the actual rationale for the appointment. If the person was reclassified (B) or part of a development program (C), you will have little likelihood of success. If it was based on acting in the job (A), there could be some pre-selection bias if others weren’t given the chance to act too, but that’s a totally different type of analysis to consider than for B or C. If it is D, plucked out of nowhere, it is the best chance you might have to challenge it. A couple of recent PSLREB decisions have shown that those rationales need to be almost bullet-proof if someone challenges the appointment. And if it is E? That’s probably almost as bullet-proof as they come, separate from someone running the process themselves.
In my professional opinion, challenging B, C or E is almost a waste of time for everyone. Unless there is something “uniquely” bad about the way it was done, the appointment will likely be upheld by the PSLREB. However, for A or D, there’s a greater shot. Yet, as I noted, the NOC and NAPA posters almost never specify which of A-E it is. So while you might be interested in appealing, unless you start a process to challenge it, you won’t find out which it was and therefore know if you have a chance of success.
Extent of problem
I know this doesn’t sound like much to many people, so I did a quick test. EC-06 positions right now are really hard to fill. Lots of people do not want to change jobs during COVID unless it’s for a promotion, and I have a lot of manager friends networking like crazy to fill key spots. I checked the Jobs portal for EC-06 Notice of Considerations to see how many spots there were for indeterminate appointments in the last week. Here’s what I found:
- GAC, PHAC, STC, ECC, ESDC * -> Advertised -> Promotion (* = from another department’s pool)
- NRCAN, SSC, ESDC, HC, DFO, -> Non-advertised -> Promotion
It’s a small sample size, sure, but it’s about half the positions with no way to know what the rationale was unless you ask further or start an appeal.
I have lamented the lack of transparency in the appointment notices for a long-time. People regularly email me to ask, “Can/should I appeal?” and I go through the same description above. Telling them that they really have no idea what the rationale was, and 3/5 of the criteria are almost impossible to challenge successfully unless they know there was something else happening that was really hinky. So they have to decide to invest in challenging it knowing it might go nowhere fast, up to them.
But a recent post for a PHAC position solved that problem:
Vice-President, Strategic Policy (EX-04)
Public Health Agency of Canada
Name of person being considered: xxxxxxx
PHAC’s Non-Advertised Criteria: Employee qualified in another organization’s pool
Date of notification: 2021-12-31
End date of waiting period: 2022-01-05
I removed the name as it isn’t relevant…the part that IS new is the line in yellow. That doesn’t appear in any other NOCs/NAPAs that I have seen. PHAC has chosen to add that line to be transparent.
I’m sure they’re also trying to reduce workloads…they know lots of people file appeals assuming it was rationale D — plucked from nowhere — so by telling people upfront it was actually E, they should reduce the # of appeals.
Regardless of the rationale, PHAC should be commended for their innovation…