ARCHIVED - Guidance on completing selection for retention or lay-off (12-16)

2012-08-14

As part of its continuing effort to support the implementation of Budget 2012, the Public Service Commission (PSC) has collaborated with the Office of the Chief Human Resources Officer (OCHRO) to develop more specific guidance on how managers should complete the selection of employees for retention or lay-off (SERLO). The PSC Guide on Selection for retention or lay-off will be updated soon to reflect the following information.

The SERLO is based on the premise that some employees will be selected for retention and the rest will be laid off: the Public Service Employment Act (PSEA) and the Regulations require the selection of employees for either retention or lay-off and do not allow for a third outcome:

• All employees who were assessed in the same SERLO should be advised of the selection decision in writing and at the same time.
• As soon as the organization informs some employees that they have been selected for retention, the other employees assessed in the same SERLO must be informed, in writing, that they have been selected for lay-off, that their services will no longer be required, that they will be laid off, of the right to and the grounds upon which to make a complaint to the Public Service Staffing Tribunal (PSST), and of the manner and the time period within which a complaint may be made, as set out by the PSST.
• This letter will also provide official notification of workforce adjustment (WFA) status, and indicate if a guaranteed reasonable job offer (GRJO) will be provided or if the employee is being given access to the options set out in the applicable WFA agreement or directive. However, in some cases an exception may be made, related to protected grounds under the Canadian Human Rights Act, to not include the decision with regard to GRJO or access to the options, as described below.

Organizations have asked the PSC for advice on situations where the assessment cannot be completed for an employee either because of the employee’s decision not to participate in the assessment or their inability to participate due to a leave of absence.

Incomplete assessment: Employee decides not to participate

In the case of an employee’s decision not to participate, communication should acknowledge that while all affected employees may be qualified, merit must be assessed and be the basis for selecting those who are to be retained or those who will be laid off, and that the selection process is necessary for a fair and transparent decision. Accommodation will be made for personal circumstances on a case-by-case basis. If it is not possible to use alternative means of assessing specific merit criteria, then an employee who decides not to participate in a scheduled assessment should be clearly advised, in writing that:

• The process to select employees who are to be retained or to be laid-off requires that merit be assessed, using tools and methods determined by the sub-delegated manager;
• They have been asked to participate because there are no alternative means of assessing the specified merit criteria;
• For this reason, a decision not to participate may lead to a rating of ”unable to assess” for an essential qualification or a selection criteria and may result in a selection for lay-off; and
• They have an opportunity to re-consider their decision not to participate. The sub-delegated manager may wish to consider putting a reasonable time limit on this opportunity.

Leave of absence – Assessment is complete

As described in Letter to Heads of HR 12-10, the employee on leave can, in many circumstances, be assessed with the other employees. Therefore, the selection decision will be communicated as described above. Consultation between the PSC and OCHRO has confirmed that there are some situations in which the assessment is complete, but the letter that completes the SERLO process will be modified as follows:

• When an employee on maternity, parental or extended sick leave is selected for lay-off, the letter should provide the SERLO results and the opportunity to complain to the PSST, and advise the employee that they will remain in affected status until their return to work, at which time the decision to provide a guarantee of a reasonable job offer or access to options as per the applicable WFA agreement or directive will be made.
• When an employee on another type of extended leave (e.g. compassionate care leave, leave for personal needs, etc.) is selected for lay-off, the letter should provide the SERLO results and the opportunity to complain to the PSST, and the decision to declare the employee surplus or opting immediately should be made on a case by case basis, depending on the facts of the situation, and the existence of any undue hardships that would prevent the employee from being referred to positions as a surplus priority or from making an opting decision.

Leave of absence – Assessment is not possible

While the PSEA places the onus on the sub-delegated manager to complete the assessment, the PSC acknowledges that there are some cases in which a leave of absence related to grounds under the Canadian Human Rights Act may result in an indefinite delay in the employee’s assessment. In situations such as these, the sub-delegated manager should work with labour relations up-front on a case-by-case basis to determine whether or not the employee on leave can be included in the SERLO (refer to Step 2 in the SERLO Guide). In making this decision, the manager will have to explore all avenues for completing the assessment of the employee on leave. If the manager can find no other viable alternative, the employee on leave should be advised that they will not be included in a SERLO until their leave is resolved. When the employee returns to work the manager will conduct another SERLO or, in a case where the employee on leave has resigned or retired, delete the vacant position.

Completing the file

In all of these situations, the sub-delegated manager must also ensure that the following are clearly illustrated in the documents:

• Decisions related to determining the affected part of the organization and the employees in that part of the organization who will be included in the assessment;
• The merit criteria and selection criteria;
• Communication to and from the specific employees; and
• All the specific details of the assessment and related decisions that form the basis of the SERLO decision for each employee.

For more information related to SERLO, please contact the PSC strategic consultant responsible for your organization. Should you require more information concerning the management of leave and reintegration and workforce adjustment, please contact your organization’s WFA coordinator.

Hélène Laurendeau
Senior Vice-President
Policy Branch
Public Service Commission