Guide on the selection of employees for retention or lay-off - March 2012

To assist managers and human resources (HR) advisors in dealing with work force adjustment (WFA) situations, the Office of the Chief Human Resources Officer/Treasury Board Secretariat (OCHRO/TBS) and the Public Service Commission (PSC) have put together a WFA information kit that consists of a series of guides on specific components of the WFA process. In addition to this guide, the PSC also offers the Priority Administration Guide.

For general information on WFA for organizations for which the Treasury Board (TB) is the employer and whose staffing processes are conducted in accordance with the Public Service Employment Act (PSEA), consult the other guides that comprise this information kit, including the National Joint Council Work Force Adjustment Directive (NJC WFAD), the other WFA appendices (WFAAs) and the TB Directive on Career Transition for Executives.

For information about WFA in general for the separate agencies whose staffing processes are conducted in accordance with PSEA, and for which the TB is not the employer, consult the separate agency.

For information about the PSC’s Priority Administration System and other related topics, consult the PSC’s Priority Administration Web site.

For more information on the classification process for organizations for which the TB is the employer, consult TBS’s Organization and Classification Web site. For the separate agencies, contact the separate agency.

Managers and HR Advisors should ensure they consult their organization’s business and HR plans when conducting a selection for retention or lay-off process. As well, they should consult with their organizational classification and labour relations advisors where necessary.

Effective Date: March 2012
Contact: Strategic Consultants

Table of Contents

1. Definitions
2. Introduction
3. Values
4. Considerations
5. Process to select employees for retention and lay-off
   • 5.1 - Situation 1 - Workforce reduction, with no changes in the duties, or to the merit criteria
   • 5.2 - Situation 2 - Workforce reduction, with no significant changes in the duties, but with changes to the merit criteria
   • 5.3 - Situation 3 - Workforce reduction, with significant changes in some of the duties, and with changes to some of the merit criteria
   • 5.4 - Situation 4 - Workforce reduction, with all positions to be eliminated and new positions to be created, and with new merit criteria
   • 5.5 - Situation 5 - Workforce reduction, with all positions to be eliminated
6. Conclusion
7. Legal basis
8. References and related documents
9. Frequently Asked Questions

1. Definitions

Affected employee (fonctionnaire touché) – is an indeterminate employee who has been informed in writing that their services may no longer be required because of a WFA situation.

Alternative delivery initiative (diversification des modes d'exécution) – is the transfer of any work, undertaking or business of the core public administration to any body or corporation that is a separate agency or that is outside the core public administration.

Core public administration (Administration publique centrale) – is that part in or under any department or organization, or other portion of the federal public administration specified in Schedules I and IV to the Financial Administration Act (FAA).

Employee (fonctionnaire) - is a person employed in that part of the public service to which the PSC has the exclusive authority to make appointments.

Identify for lay-off (Désignation aux fins d’une mise en disponibilité) – with the exception of when an employee is selected for lay-off as a result of a selection for retention or lay-off process conducted pursuant to subsection 64(2) of the PSEA, means the deputy head has determined that the employee will be laid off pursuant to subsection 64(1) of the PSEA; the employee subsequently is declared surplus, is laid off directly upon the employee’s request, or for those organizations for which the TB is the employer, is offered the options as provided by the NJC WFAD and the other WFAAs.

Lay-off (mise en disponibilité) – is the termination of an employee’s services because of a lack of work, the discontinuance of a function or the transfer of work or a function outside the public service.

Merit criteria (critères de mérite) – for the purpose of determining merit, they are essential qualifications, asset qualifications, organizational needs and operational requirements.

Organization (organisation) – refers to federal government departments and agencies subject to all or part of the PSEA.

Public service (fonction publique) - is the several positions in or under:

• the departments named in Schedule I to the FAA;
• the organizations named in Schedule IV to the FAA; and
• the separate agencies named in Schedule V of the FAA.

Select for lay-off (Sélection aux fins de mise en disponibilité)– means the deputy head has determined that some but not all of the employees in a part of the organization are to be laid off pursuant to subsection 64(2) of the PSEA, has conducted a selection for retention or lay-off process, and has selected an employee for lay-off; the employee subsequently is declared surplus, is laid off directly upon the employee’s request, or for those organizations for which the TB is the employer, is offered the options as provided by the NJC WFAD and the other WFAAs.

Separate agency (organisme distinct) - is an organization named in Schedule V to the FAA. Each separate agency is its own employer. They are not subject to the NJC WFAD or the other WFAAs. Seven of these separate agencies conduct their staffing in accordance with the PSEA:

• the Financial Consumer Agency of Canada;
• Indian Oil and Gas Canada;
• the National Energy Board;
• the Office of the Auditor General of Canada;
• the Office of the Correctional Investigator of Canada;
• the Office of the Superintendent of Financial Institutions; and
• the Public Service Labour Relations Board.

Surplus employee (fonctionnaire excédentaire) – is an indeterminate employee who has been informed in writing by their deputy head that they will be laid off and has either been formally declared surplus, or has selected the time-limited surplus status option as provided by the NJC WFAD and other WFAAs.

2. Introduction

The public service is an institution dedicated to serving Canadians and their elected officials. To successfully play this vital role, it must be able to continuously adapt and respond to the evolving social, political and economic environment and the ensuing changes in the policies and priorities of the government of the day. This means that deputy heads must at times review and adjust their programs and services to ensure continued relevance, performance, value for money and alignment with the government’s priorities. Changes in programs and services may result in a WFA situation.

For those organizations for which the TB is the employer, the NJC WFAD and other WFAAs state that WFA is a situation that occurs when a deputy head has determined that the services of one or more indeterminate employees will not be required beyond a specific date because of:

• a lack of work;
• the discontinuance of a function;
• a relocation in which the employee does not wish to relocate; or
• an alternative delivery initiative.

Subsection 64(1) of the PSEA states that when the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedules I, IV or V to the FAA, the deputy head may, in accordance with the regulations of the Commission, lay off the employee.

Subsection 64(2) states that where some but not all of the employees in any part of the deputy head’s organization are to be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission. Subsection 21(1) of the Public Service Employment Regulations (PSER) states that the identification of the employees employed in similar positions or performing similar duties in the same occupational group and level within the affected part of the organization that are to be retained is to be made in accordance with merit.

However, it is important to recognize that subsection 64(3) states that where employment is terminated in the circumstances referred to in paragraph 12(1)(f) of the FAA, subsection 64(1) does not apply. Paragraph 12(1)(f) of the FAA provides for the termination of employment of persons to whom an offer of employment is made as a result of the transfer of any work, undertaking or business from the core public administration to any body or corporation that is not part of the core public administration. In other words, this guide does not apply to alternative delivery initiatives.

This guide outlines the process to follow when selecting employees to be retained or to be laid off. It focuses on:

• identifying the affected employees who are to be assessed;
• planning the process, establishing merit and selection criteria;
• choosing assessment methods and conducting the assessments; and
• selecting the employees to be retained and those who are to be laid off.

3. Values

The objective of the process is to select, on the basis of merit, those employees who are to be retained to carry on the continuing work of the affected part of the organization, and those who are to be laid off.

Merit is met when the PSC is satisfied that the employee meets the merit criteria required for the work to be performed, which includes the essential qualifications, as well as the current and future asset qualifications, operational requirements and organizational needs. However, while the PSC must be satisfied that merit is met, the guiding values of fairness, transparency, access and representativeness guide managers in the process of selecting employees who are to be retained and those who are to be laid off.

• Fairness means that decisions are made objectively and free from political influence or personal favouritism; policies and practices reflect the just treatment of persons. Persons have a right to be assessed in the official language(s) of their choice.
  
  In WFA situations, merit criteria must be established objectively, based on the work to be performed, as well as the current and future operational requirements and organizational needs. The process and methods used to select the employees who are to be retained and those who are to be laid off must minimize the impact of the WFA situation on employees, and must reflect the just treatment of affected employees.
• Transparency means that information about decisions, policies and practices is communicated in an open and timely manner.
  
  In WFA situations, it is critical that considerable attention be paid to keeping employees and bargaining agents informed in a timely fashion, and to explaining the choices and decisions made at appropriate stages of the process. An illustration of this is that managers should inform affected employees of how the merit criteria will be applied to make selection decisions; for example, that strength in a particular merit criterion will be applied to determine who will be selected for retention.
• Access means that persons from across the country have a reasonable opportunity to apply, to do so in the official language(s) of their choice, and to be considered for public service employment.
  
  In WFA situations, affected employees must be given every reasonable opportunity to continue their careers as public service employees.
• Representativeness means that appointment processes are conducted without bias and do not create systemic barriers to help achieve a public service that reflects the Canadian population it serves.
  
  In WFA situations, when the representation of members of one or more of the employment equity (EE) designated groups has been identified as a need in the organization’s human resources (HR) or EE plan, then being a member of one of the respective EE designated groups may be established as an organizational need merit criterion.

4. Considerations

• The selection for retention or lay-off process and its results may be very stressful for both employees and managers. It must be conducted with respect and sensitivity, and reflect the guiding values indicated above. Organizations should ensure that managers are prepared and equipped to deliver difficult messages to employees, and that the employee assistance program is accessible to all. Communication with affected employees and bargaining agents should be timely and provide as much concrete information as is available to minimize the anxiety that could result. Organizations must consider that the selection for retention or lay-off process may contribute to tensions in the work place, and could lead to a loss of productivity.
• The PSEA and the PSER provide considerable discretion to deputy heads regarding the choice of merit criteria, the selection criteria, and the means of assessment. The selection for retention or lay-off decision may be made by putting greater emphasis on certain merit criteria. Therefore, it is important that organizations consult with bargaining agents and keep employees informed, and explain the decisions made at appropriate stages in the process. Early discussion with bargaining agents regarding the merit criteria that will be applied may result in managers being made aware of potential concerns, allowing for change where appropriate.
• The PSER prescribe the manner of selecting employees for retention or lay-off in situations where the services of some but not all of the employees in a part of an organization are no longer required. Managers must assess the merit of employees employed in similar positions or performing similar duties in the same occupational group and level in the affected part of the organization, and select the employees who are to be retained in accordance with merit. Managers are therefore responsible for establishing the merit criteria to be applied for the continuing functions, the criteria for selection, and the assessment methods to be used to determine who is to be retained and who is to be laid off.
• When establishing the merit criteria for the functions that will remain, the essential qualifications are based on the current requirements and needs of the work to be performed. Asset qualifications, as well as operational requirements and organizational needs, may be based on the current and future needs of the affected part of the organization. These needs may include those of the broader organization as long as they are linked to the affected area.
• There are situations where some positions are to be eliminated, and new positions are to be created in the affected part of the organization. This may result in two processes - an appointment process to fill the new positions, and a selection for retention or lay-off process. When conducting an appointment process to fill the new positions, managers must respect the PSEA, the PSER and the PSC’s Appointment Policy, which prescribe the manner of making appointments.
• When an employee is selected for lay-off, it does not mean that they have had a performance issue, or that they are unsuitable for employment elsewhere. In fact, the nature of this exercise, with the reduced number of employees who are retained, could result in those who are among the organization's better performers being selected for lay-off.
• The process of selecting employees for retention or lay-off is not designed to replace policies and procedures aimed at resolving performance issues or disciplinary problems. Unless they are at the point of having their employment terminated for cause, poor performers are included in the selection for retention or lay-off process along with other affected employees. Should a poor performer be selected for lay-off, the organization is responsible for addressing their performance issues through a training/learning plan, in consultation with their labour relations advisor. Selection for lay-off may result in a priority entitlement for appointment, which imposes an obligation on all organizations, starting with the home organization, to reintegrate the employee.

5. Process to select employees for retention or lay-off

The assessment and selection of employees for retention or lay-off (SERLO) process is different from an appointment process as all the employees involved in the selection already met the merit criteria for their substantive position, if the qualifications have not changed. At the time of their appointment, the employees were fully assessed against all the requirements of their position. The goal of the SERLO process is to differentiate between, the employees to be retained and, the employees to be selected for lay-off, all of whom had previously been found qualified.

The steps to be followed during a SERLO process are:

• Step 1 - Determine the part of the organization that is affected
• Step 2 - Identify the similar affected positions and employees
• Step 3 - Determine the selection strategy
• Step 4 - Review the merit criteria and determine the selection criteria
• Step 5 - Determine the assessment methods to be used, and assess the affected employees
• Step 6 - Determine which employees are to be retained and which are to be laid off
• Step 7 - Communicate results to employees

WFA can lead to various situations where employees must be selected for retention or lay-off, depending on the particulars of the organization and the reasons for the WFA. Understanding what makes each situation unique is important because different provisions of the PSEA and the PSER may apply, and because of the impact on the organization and the affected employees.

Five such situations are presented here as typical situations.

Managers and HR Advisors should first identify which of the five situations relates closest to their circumstances. The 7 steps are set out for each situation description, along with the considerations that apply to each case, and an example illustrating the decisions that might be made.

Situation 1 – Workforce reduction, with no changes in the duties, or to the merit criteria: The manager has determined that some, but not all, of the similar positions are to be eliminated. There are few or no changes to the duties of the positions that will remain, and there are no different or additional merit criteria established for the remaining positions. The classification decisions for the remaining positions confirm they are the same existing positions from a classification perspective.

Situation 2 – Workforce reduction, with no significant changes in the duties, but with changes to the merit criteria: The manager has determined that some, but not all, of the similar positions are to be eliminated. There may be some changes to the duties of the positions that will remain, and there are different or additional merit criteria established for the remaining positions. The classification decisions for the remaining positions confirm they are the same existing positions from a classification perspective.

Situation 3 – Workforce reduction, with significant changes in some of the duties, and with changes to some of the merit criteria: The manager has determined that some, but not all, of the similar positions are to be eliminated. There are substantial changes to the duties of the positions that will remain, and there are different or additional merit criteria established for the remaining positions. The classification decisions for some but not all of the remaining positions indicate they are new positions from a classification perspective.

Situation 4 – Workforce reduction, with all positions to be eliminated and new positions to be created, and with new merit criteria: The manager has determined that all positions are to be eliminated. There are new positions created and the merit criteria for these positions are new. The classification decisions for all the positions indicate they are new from a classification perspective.

Situation 5 – Workforce reduction, with all positions to be eliminated: The manager has determined that all the similar positions are to be eliminated. As there are no employees to be retained, there is no need to assess them. They are therefore all identified for lay-off, and this guide does not apply.

5.1 - Situation 1 – Workforce reduction, with no changes in the duties, or to the merit criteria

The manager has determined that some, but not all, of the similar positions are to be eliminated. There are few or no changes to the duties of the positions that will remain, and there are no different or additional merit criteria established for the remaining positions. The classification decisions for the remaining positions confirm they are the same existing positions from a classification perspective.

5.1.1 - Step 1 – Determine the part of the organization that is affected

When faced with a WFA situation, the manager must determine the organizational and geographical boundaries within which the employees are to be selected for retention or lay-off. In doing so, the manager and the HR Advisor should first consult the organization’s business and HR plans, as they are a useful source of information when conducting an environmental scan, a work force analysis and a skills gap. By understanding the current and future operational reality facing the organization, the manager can make decisions that serve the interests of the organization and that treat employees fairly. As in every step of this process, the manager should advise employees and bargaining agents of any decisions made in as timely a manner as possible.

Some questions to consider in determining the part of the organization that is affected:

• Is it a section?
• Is it something larger, such as a division or a directorate?
• Is it something very significant, such as an entire branch or regional office?
• Is it a program or a type of work that is carried out by more than one organization?
• Is the affected area local, regional or national?

Communication with employees and consultation with bargaining agents

It is important to keep all employees advised throughout the WFA process of major decisions affecting them. Consultation with bargaining agents is essential. This step is important because at this stage, the manager has made critical decisions that will affect not only the life of the organization but, more importantly, will affect the lives of employees. It is essential that employees and bargaining agents have this information as soon as possible to ensure knowledgeable bargaining agent representation and help employees make important decisions about their own lives and careers.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the business and HR plans of the organization, as a context for understanding why WFA is being applied in the affected part of the organization;
• the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information available at this early point.

Early and frequent communication does not mean that the manager cannot change their mind, although this should be avoided if possible. If changes are necessary, the manager should be able to clearly explain the rationale for the changes as they relate to the needs of the remaining positions and the organization.

Example:

5.1.2 - Step 2 - Identify the similar affected positions and employees

The manager identifies the similar positions that are affected. The employees who occupy the positions are identified as affected, and are to be assessed to select which are to be retained and which are to be laid off.

As indicated in Section 4, affected employees who have presented performance, incapacity or disciplinary problems should be dealt with prior to the selection for retention or lay-off process, in accordance with employer policies. Regardless, these employees are included in the selection for retention or lay-off process.

Considerations when identifying the similar affected positions

Some questions to consider:

• Are any of the positions unique or stand-alone?
• Are there any pools of reasonably homogeneous positions, for example, those with the same or very similar duties? The similar positions might be CR-4 finance assistants, or they might be positions that are classified as CR-4 human resources assistants, including staffing and labour relations assistants.
• Can a case be made for somewhat similar positions classified at the same group and level to be considered as homogeneous, for example, human resources, finance and administrative assistants classified as CR-4s?
• Do the positions require the same or similar merit criteria?

Considerations when identifying affected employees

It is important to note that some employees performing the duties of the affected positions are identified as affected, while others are not.

• Employees to be identified as affected are:
  • incumbents of the affected positions who are performing duties elsewhere, such as:
    • employees on assignment/secondment elsewhere; and
    • employees who have been appointed on an acting basis elsewhere;
  • incumbents of the affected positions who are on a leave of absence, unless their position has been filled indeterminately behind them; and
  • all other incumbents of the affected positions.
• Employees not to be identified as affected are:
  • specified term employees - they are subject to lay-off, but are not subject to the selection for retention or lay-off process as specified in subsection 21(6) of the PSER, nor are they entitled to a priority for appointment; and
  • employees who are performing the duties of the affected positions, but who do not occupy them on a substantive basis, such as:
    • employees on assignment/secondment from elsewhere; and
    • employees appointed on an acting basis from elsewhere.

The manager should ensure that employees working in the affected area understand why some employees have not been identified as affected.

Communication with employees and consultation with bargaining agents

It is important to keep in mind that for those organizations for which TB is the employer, the NJC WFAD and other WFAAs require notifying bargaining agents before notifying employees at certain steps in the WFA process.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the number of positions to be eliminated;
• the number of employees who have been identified as affected and will be assessed for the selection for retention or lay-off process;
• an explanation as to why some employees were not identified as affected;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting the affected employees; and
• any other information that is available at this point.

Example:

5.1.3 - Step 3 - Determine the selection strategy

The manager has the flexibility to determine the appropriate selection strategy, so depending on the situation, different options exist. The manager should consult with their HR Advisor for advice on a selection strategy. Once the strategy has been determined, it can be used to make further decisions, such as establishing the merit criteria, the appropriate assessment methods and the selection criteria.

For example, while employees may volunteer for lay-off at any time, if the number of employees to be selected for lay-off is small compared to the number to be retained, a valid strategy may be to invite employees to volunteer for lay-off as early in the process as possible. The manager should consider which criteria will be used to choose between the volunteers if more employees volunteer than positions are to be eliminated.

Communication with employees and consultation with bargaining agents

Communication with employees and consultation with bargaining agents at this step should cover the following:

• an invitation to employees to volunteer for lay-off;
• the overall selection strategy and the process to be followed, in general terms;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting the affected employees; and
• any other information that is available at this point.

Example:

5.1.4 - Step 4 - Review the merit criteria and establish the selection criteria

The manager reviews the organization’s business and HR plans, in consultation with the HR Advisor. Since there are no changes to the remaining duties warranting different or additional merit criteria, the manager reviews the merit criteria to determine their relevance with respect to the work to be performed, as well as the current and future operational requirements and needs of the organization.

Essential qualifications

Essential qualifications are qualifications that are required for the employee to perform the work. To be selected for retention, an employee must meet each essential qualification. When a manager identifies a qualification as essential, the manager is stating that if an employee does not meet that qualification, they could not function in the position. If a qualification is not essential to perform the work, then it may be an asset for the work to be performed and, if so, it should be identified that way.

Essential qualifications may be assessed on a “meets/does not meet” basis, and this would be appropriate when assessing some essential qualifications, for example, education. However, the degree to which an employee meets an essential qualification would likely be the deciding factor in a selection for retention or lay-off process. If strength in a particular essential qualification, such as writing ability, is to be used as a criterion for the selection for retention, it would not be possible to differentiate among employees if they were assessed on a “meets/does not meet” basis for the qualification.

Official language proficiency

The Official Languages Act states that official language requirements must be set objectively for the functions to be performed. As well, paragraph 30(2)(a) of the PSEA, which defines the meaning of merit, provides that official language proficiency is an essential qualification. For this reason, official language proficiency may be established only as an essential qualification, and not as an asset qualification.

As the selection for retention or lay-off process is not an appointment process, non-imperative staffing, as provided for in the Public Service Official Languages Exclusion Approval Order, does not apply.

Other merit criteria

While essential qualifications are established for the work to be performed, the other merit criteria (asset qualifications, operational requirements and organizational needs) may be established for both the current and future needs of the position and the organization. It is equally important to establish the other merit criteria to retain employees for the current and the future needs of the organization.

Other considerations

The manager should consider whether they should provide an opportunity to affected employees to acquire the merit criteria required before the selection for retention or lay-off process is conducted. This will vary with the nature of the merit criterion, the time required to acquire it and the operational reality of the organization.

For example, if a merit criterion is possession of a driver’s licence, should employees be provided an opportunity to obtain it? In answering such questions, the manager should consider whether operational needs can accommodate the time required to meet a merit criterion before the selection for retention or lay-off process must be conducted.

Examples of other questions the manager may wish to consider in this situation are:

• How long would it take the employee to obtain a driver’s licence?
• What would be the next step if the employee fails to obtain a driver’s licence?
• Will the manager wait until the employee can try again to obtain it?

There are no easy answers to these sorts of questions, and the manager should consult with their HR Advisor for assistance. In resolving such issues, the manager must try to achieve a reasonable balance between the operational reality, such as the impact of a delay in conducting the selection for retention or lay-off process, and fairness to the employees involved. If possible, the manager should give employees sufficient advance notice so they can take the necessary actions prior to the selection for retention or lay-off process.

Establishing the selection criteria

Prior to conducting the selection for retention or lay-off process, the manager should objectively establish the criteria they will use to select employees for retention. The selection criteria are based on the merit criteria being applied. It could be a strength in one particular merit criterion, or a combination of the merit criteria, and could vary from one position to another. The guiding values of fairness, access, transparency and representativeness must be respected when selecting employees for retention or lay-off.

For example, if the affected part of the organization were to become the information centre of an organization, one selection criterion could be strength in written communication for half of the similar positions, and strength in data base management for the other half. This would recognize that even though the employees were being assessed for retention in similar positions, the emphasis in some positions would not be exactly the same as in others.

Informing employees about the selection criteria early may avoid a misperception of personal favouritism.

Communication with employees and consultation with bargaining agents

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the merit criteria, including their definitions and if applicable, the relative weighting of each one;
• the criteria that will be used to select the employees to be retained;
• an invitation to employees to identify any accommodations they may need for the assessment process;
• an invitation to employees to volunteer for lay-off;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.1.5 - Step 5 - Determine the assessment methods to be used, and assess the affected employees

The objective of the assessment process is to determine that the employees selected for retention meet the merit criteria required to perform the continuing functions of their positions, based on the needs identified in the organization's business or HR plans. Appropriate assessment methods must be chosen or developed so the employees can be assessed against each merit criterion to ensure the right employees are selected for retention.

Employees who volunteer and are accepted for lay-off, and employees who resign or retire before the expected lay-off date are not included in the assessment process.

Assessment methods must produce information that is relevant to all the merit criteria being assessed. The amount of information needed to assess an employee's competence with respect to a particular merit criterion depends on the nature and the importance of the criterion, as identified by the manager. The use of multiple, well-developed assessment tools generally provides more complete and valid information. The integration of information from more than one source ensures a more complete and accurate picture of the employee being assessed.

When determining which assessment method to use, the manager may choose to use assessment methods such as interviews, written examinations, reference checks, etc. Using different sources of information enhances the assessment process and permits an evaluation of the consistency of performance over time and across various situations. However, this does not preclude the manager from using other assessment methods, such as descriptions of an employee’s past performance and the manager’s own knowledge of an employee’s performance, as a source of information if it will provide sufficient information to assess an employee against a particular merit criterion.

Assessment should be seen as a process, rather than just the administration of individual assessment tools. To increase efficiency, HR Advisors can help managers identify assessment tools that complement each other and those that can assess more than one merit criterion.

In all cases, the manager must ensure that the employees selected for retention meet the essential qualifications and any of the other merit criteria that are being applied. Although employees selected for retention must always meet the essential qualifications, the manager may select those who meet an asset qualification, an organizational need or an operational requirement before assessing the essential qualifications if it is more efficient to do so.

Additional information regarding assessment may be found in the PSC’s Guidance Series – Assessment, Selection and Appointment.

Considerations related to the assessment of official language proficiency

When assessing official language proficiency to select employees for retention in bilingual positions, it is important to note that the results of Second Language Evaluation (SLE) tests are valid for five years, unless the employee is exempted[1] from undertaking further second official language assessment. When this time period expires, the employee’s SLE test results are deemed to be valid for an indefinite period with regard to the employee’s substantive position, as long as the linguistic profile of the position has not been raised above the employee's skill level.

Regardless of whether the official language proficiency requirements of the position are changed, when the employee remains in their substantive position, if their most recent SLE test results demonstrate that they meet the official language proficiency requirements of their position, the SLE test results remain valid, even if they were obtained more than five years ago.

However, if the employee’s most recent SLE test results demonstrate that they do not meet the official language proficiency requirements of their position, then the employee must undertake another SLE test to demonstrate that they meet those requirements.

Communication with employees

Communication with employees at this step should cover the following:

• a reminder of the merit criteria, including their definitions, and if applicable the relative weighting of each one;
• a reminder of the criteria that will be used to select the employees who are to be retained;
• the overall process and expected timing of the assessment;
• the assessment methods to be used;
• an invitation to employees to identify any accommodations they may need for the assessment process;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.1.6 - Step 6 – Determine which employees are to be retained and which are to be laid off

Selection is a crucial step in the decision-making process, and all decisions must be recorded and substantiated to ensure accountability of decisions. Thus, it is important that the manager has confidence in the assessment process and the reason for the selection decision, and that they can clearly explain them to the affected employees.

The selection of the employees to be retained and those to be laid off is based on the selection strategy that was developed and communicated to employees earlier in the process, so that at this point, the manager has established and applied the appropriate merit criteria, and has thoroughly assessed the employees against them to make appropriate decisions.

Additional information regarding selection decisions may be found in the PSC’s Guidance Series - Assessment, Selection and Appointment.

Example:

5.1.7 - Step 7 - Communicate results to employees

Once the determination as to which employees are to be selected for retention and which are to be selected for lay-off has been made, the manager should inform employees as soon as possible. To ensure transparency and fairness of the process, all employees who were assessed should be informed of the selection results at the same time.

While informal discussion as contemplated by section 47 of the PSEA does not apply to the selection for retention or lay-off process, the guiding values of fairness and transparency mean that the manager should be prepared to discuss and explain the assessment results to employees. Information provided to an employee would relate only to that employee, as the Privacy Act protects personal information. Any information about a third party must not be disclosed.

Advise the employees who have been selected for lay-off, and provide them with an opportunity to complain to the PSST

Subsection 21(5) of the PSER requires the manager to inform, in writing, the employees who have been selected for lay-off of their selection and the proposed lay-off date. Pursuant to section 65 of the PSEA, employees who are informed they have been selected for lay-off are also informed of:

• their opportunity to complain to the Public Service Staffing Tribunal (PSST); employees may complain on the grounds that their selection constituted an abuse of authority - as stated in subsection 2(4) of the PSEA, abuse of authority includes bad faith and personal favouritism; and
• the manner and the time period within which a complaint may be made, as provided by the Public Service Staffing Tribunal Regulations

To respect the guiding values of fairness and transparency, the manager should advise the employees who are selected for lay-off of the names of the employees who are selected for retention.

Subsection 65(2) of the PSEA provides that no complaint may be made against the decision to lay-off employees, against the determination of the part of the organization and positions to be affected, or the number of employees to be laid off.

Where the PSST finds a complaint to be substantiated, it may set aside the decision to lay-off the employee and order the deputy head to take any corrective action that it considers appropriate.

A full listing of the PSST's mandate and procedures (including the timing of submissions) may be found on the PSST's Web site.

The manager must inform the PSC in writing of the names of the employees who have been selected for lay-off and of the proposed lay-off dates. Organizations provide this information to the PSC by registering surplus employees in its Priority Information Management System (PIMS). PIMS is designed to facilitate the appointment of persons who are entitled to a priority for appointment.

Advise the remaining employees they will be retained

Employees who have been selected for retention are advised in writing that they are to be retained, and that they will remain in their current position.

Example:

5.2 - Situation 2 – Workforce reduction, with no significant changes in the duties, but with changes to the merit criteria

The manager has determined that some, but not all, of the similar positions are to be eliminated. There may be some changes to the duties of the positions that will remain, and there are different or additional merit criteria established for the remaining positions. The classification decisions for the remaining positions confirm they are the same existing positions from a classification perspective.

5.2.1 - Step 1 – Determine the part of the organization that is affected

When faced with a WFA situation, the manager must determine the organizational and geographical boundaries within which the employees are to be selected for retention or lay-off. In doing so, the manager and the HR Advisor should first consult the organization’s business and HR plans, as they are a useful source of information when conducting an environmental scan, a work force analysis and a skills gap. By understanding the current and future operational reality facing the organization, the manager can make decisions that serve the interests of the organization and that treat employees fairly. As in every step of this process, the manager should advise employees and bargaining agents of any decisions made in as timely a manner as possible.

Some questions to consider in determining the part of the organization that is affected:

• Is it a section?
• Is it something larger, such as a division or a directorate?
• Is it something very significant, such as an entire branch or regional office?
• Is it a program or a type of work that is carried out by more than one organization?
• Is the affected area local, regional or national?

Communication with employees and consultation with bargaining agents

It is important to keep all employees advised throughout the WFA process of major decisions affecting them. Consultation with bargaining agents is essential. This step is important because at this stage, the manager has made critical decisions that will affect not only the life of the organization but, more importantly, will affect the lives of employees. It is essential that each employee and bargaining agents have this information as soon as possible to ensure knowledgeable bargaining agent representation and help employees make important decisions about their own lives and careers.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the business and HR plans of the organization, as a context for understanding why WFA is being applied in the affected part of the organization;
• the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information available at this early point.

Early and frequent communication does not mean that the manager cannot change their mind, although this should be avoided if possible. If changes are necessary, the manager should be able to clearly explain the rationale for the changes as they relate to the needs of the remaining positions and the organization.

Example:

5.2.2 - Step 2 - Identify the similar affected positions and employees

The manager identifies the similar positions that are affected. The employees who occupy the positions are identified as affected, and are to be assessed to select which are to be retained and which are to be laid off.

As indicated in Section 4, affected employees who have presented performance, incapacity or disciplinary problems should be dealt with prior to the selection for retention or lay-off process, in accordance with employer policies. Regardless, these employees are included in the selection for retention or lay-off process.

Considerations when identifying the similar affected positions

Some questions to consider:

• Are any of the positions unique or stand-alone?
• Are there any pools of reasonably homogeneous positions, for example, those with the same or very similar duties? The similar positions might be CR-4 finance assistants, or they might be positions that are classified as CR-4 human resources assistants, including staffing and labour relations assistants.
• Can a case be made for somewhat similar positions classified at the same group and level to be considered as homogeneous, for example, human resources, finance and administrative assistants classified as CR-4s?
• Do the positions require the same or similar merit criteria?

Considerations when identifying affected employees

It is important to note that some employees performing the duties of the affected positions are identified as affected, while others are not.

• Employees to be identified as affected are:
  • incumbents of the affected positions who are performing duties elsewhere, such as:
    • employees on assignment/secondment elsewhere; and
    • employees who have been appointed on an acting basis elsewhere;
  • incumbents of the affected positions who are on a leave of absence, unless their position has been filled indeterminately behind them; and
  • all other incumbents of the affected positions.
• Employees not to be identified as affected are:
  • specified term employees - they are subject to lay-off; but are not subject to the selection for retention or lay-off process as specified in subsection 21(6) of the PSER, nor are they entitled to a priority for appointment; and
  • employees who are performing the duties of the affected positions, but who do not occupy them on a substantive basis, such as:
    • employees on assignment/secondment from elsewhere; and
    • employees appointed on an acting basis from elsewhere.

The manager should ensure that employees working in the affected area understand why some employees have not been identified as affected.

Communication with employees and consultation with bargaining agents

It is important to keep in mind that for those organizations for which TB is the employer, the NJC WFAD and the other WFAAs require notifying bargaining agents before notifying employees at certain steps in the WFA process.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the number of positions to be eliminated;
• the number of employees who have been identified as affected and will be assessed for the selection for retention or lay-off process;
• an explanation as to why some employees were not identified as affected;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.2.3 - Step 3 - Determine the selection strategy

The manager has the flexibility to determine the appropriate selection strategy, so depending on the situation, different options exist. The manager should consult with their HR Advisor for advice on a selection strategy. Once the strategy has been determined, it can be used to make further decisions, such as establishing the merit criteria, the appropriate assessment methods and the selection criteria.

For example, while employees may volunteer for lay-off at any time, if the number of employees to be selected for lay-off is small compared to the number to be retained, a valid strategy may be to invite employees to volunteer for lay-off as early in the process as possible. The manager should consider which criteria will be used to choose between the volunteers if more employees volunteer than positions are to be eliminated.

Communication with employees and consultation with bargaining agents

Communication with employees and consultation with bargaining agents at this step should cover the following:

• an invitation to employees to volunteer for lay-off;
• the overall selection strategy and the process to be followed, in general terms;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.2.4 - Step 4 - Establish the merit criteria and the selection criteria

The manager reviews the organization’s business and HR plans, in consultation with the HR Advisor. The manager must not only establish the merit criteria to determine their relevance with respect to the continuing work to be performed, but may also establish different or new merit criteria, taking into account the changes to the duties to be performed, as well as the current and future operational requirements and needs of the organization.

Essential qualifications

Essential qualifications are qualifications that are required for the employee to perform the work. To be selected for retention, an employee must meet each essential qualification. When a manager identifies a qualification as essential, the manager is stating that if an employee does not meet that qualification, they could not function in the position. If a qualification is not essential to perform the work, then it may be an asset for the work to be performed and, if so, it should be identified that way.

Essential qualifications may be assessed on a “meets/does not meet” basis, and this would be appropriate when assessing some essential qualifications, for example, education. However, the degree to which an employee meets an essential qualification would likely be the deciding factor in a selection for retention or lay-off process. If strength in a particular essential qualification, such as writing ability, is to be used as a criterion for the selection for retention, it would not be possible to differentiate among employees if they were assessed on a “meets/does not meet” basis for the qualification.

Official language proficiency

The Official Languages Act states that official language requirements must be set objectively for the functions to be performed. As well, paragraph 30(2)(a) of the PSEA, which defines the meaning of merit, provides that official language proficiency is an essential qualification. For this reason, official language proficiency may be established only as an essential qualification, and not as an asset qualification.

As the selection for retention or lay-off process is not an appointment process, non-imperative staffing, as provided for in the Public Service Official Languages Exclusion Approval Order, does not apply.

Other merit criteria

While all essential qualifications are established for the work to be performed, the other merit criteria (asset qualifications, operational requirements and organizational needs) may be established for both the current and future needs of the position and the organization. It is equally important to establish the other merit criteria to retain employees for the current and future needs of the organization.

Examples of how the merit criteria may be established:

• A government office serves an area that includes a major ethnic community that is accustomed to having a number of officers who speak the language of the community. If operational requirements dictate that a certain number of officers, but not all, are required to possess the language skills of the community, then it would be appropriate to apply that skill as an asset qualification to the selection of some of the employees to be retained, but not to others, or to apply a higher level of skill to some but not to others.
• The number of similar administrative positions is being reduced from 10 to six positions. The work descriptions are similar and have the same requirement for word processing duties. However, in the past four years, those duties were performed by only two of the employees. After the reduction, all the employees retained will be expected to perform word processing duties. In this context, it would be appropriate to establish ability to perform word processing duties as an essential qualification.

Other considerations

The manager should consider whether they should provide an opportunity to affected employees to acquire the merit criteria required before the selection for retention or lay-off process is conducted. This will vary with the nature of the merit criterion, the time required to acquire it and the operational reality of the organization.

For example, if a merit criterion is possession of a driver’s licence, should employees be provided an opportunity to obtain it? In answering such questions, the manager should consider whether operational needs can accommodate the time required to meet a merit criterion before the selection for retention or lay-off process must be conducted.

Examples of other questions the manager may wish to consider in this situation are:

• How long would it take the employee to obtain a driver’s licence?
• What would be the next step if the employee fails to obtain a driver’s licence?
• Will the manager wait until the employee can try again to obtain it?

There are no easy answers to these sorts of questions, and the manager should consult with their HR Advisor for assistance. In resolving such issues, the manager must try to achieve a reasonable balance between the operational reality, such as the impact of a delay in conducting the selection for retention or lay-off process, and fairness to the employees involved. If possible, the manager should give employees sufficient advance notice so they can take the necessary actions prior to the selection for retention or lay-off process.

Establishing the selection criteria

Prior to conducting the selection for retention or lay-off process, the manager should objectively establish the criteria they will use to select employees for retention. The selection criteria are based on the merit criteria being applied. It could be a strength in one particular merit criterion, or a combination of the merit criteria, and could vary from one position to another. The guiding values of fairness, access, transparency and representativeness must be respected when selecting employees for retention or lay-off.

For example, if the affected part of the organization were to become the information centre of an organization, one selection criterion could be strength in written communication for half of the similar positions, and strength in data base management for the other half. This would recognize that even though the employees were being assessed for retention in similar positions, the emphasis in some positions would not be exactly the same as in others.

Informing employees about the selection criteria early may avoid a misperception of personal favouritism.

Communication with employees and consultation with bargaining agents

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the merit criteria, including their definitions and if applicable, the relative weighting of each one;
• the criteria that will be used to select the employees to be retained;
• an invitation to employees to identify any accommodations they may need for the assessment process;
• an invitation to employees to volunteer for lay-off;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.2.5 - Step 5 - Determine the assessment methods to be used, and assess the affected employees

The objective of the assessment process is to determine that the employees selected for retention meet the merit criteria required to perform the continuing functions of their positions, based on the needs identified in the organization's business or HR plans. Appropriate assessment methods must be chosen or developed so the employees can be assessed against each merit criterion to ensure the right employees are selected for retention.

Employees who volunteer and are accepted for lay-off, and employees who resign or retire before the expected lay-off date are not included in the assessment process.

Assessment methods must produce information that is relevant to all the merit criteria being assessed. The amount of information needed to assess an employee's competence with respect to a particular merit criterion depends on the nature and the importance of the criterion, as identified by the manager. The use of multiple, well-developed assessment tools generally provides more complete and valid information. The integration of information from more than one source ensures a more complete and accurate picture of the employee being assessed.

When determining which assessment method to use, the manager may choose to use assessment methods such as interviews, written examinations, reference checks, etc. Using different sources of information enhances the assessment process and permits an evaluation of the consistency of performance over time and across various situations. However, this does not preclude the manager from using other assessment methods, such as descriptions of an employee's past performance and the manager’s own knowledge of an employee’s performance, as a source of information if it will provide sufficient information to assess an employee against a particular merit criterion.

In all cases, the manager must ensure that the employees selected for retention meet the essential qualifications and any other merit criteria that are being applied. Although employees selected for retention must always meet the essential qualifications, the manager may select those who meet an asset qualification, an organizational need or an operational requirement before assessing the essential qualifications if it is more efficient to do so.

Additional information regarding assessment may be found in the PSC’s Guidance Series – Assessment, Selection and Appointment.

Considerations related to the assessment of official language proficiency

When assessing official language proficiency to select employees for retention in bilingual positions, it is important to note that the results of Second Language Evaluation (SLE) tests are valid for five years, unless the employee is exempted[2] from undertaking further second official language assessment. When this time period expires, the SLE test results of an employee are deemed to be valid for an indefinite period with regard to the employee’s substantive position, as long as the linguistic profile of the position has not been raised above the employee's skill level.

Regardless of whether the official language proficiency requirements of the position are changed, when the employee remains in their substantive position, if their most recent SLE test results demonstrate that they meet the official language proficiency requirements of their position, the SLE test results remain valid, even if they were obtained more than five years ago.

However, if the employee’s most recent SLE test results demonstrate that they do not meet the official language proficiency requirements of their position, then the employee must undertake another SLE test to demonstrate that they meet those requirements.

Communication with employees

Communication with employees at this step should cover the following:

• a reminder of the merit criteria, including their definitions, and if applicable the relative weighting of each one;
• a reminder of the criteria that will be used to select the employees who are to be retained;
• the overall process and expected timing of the assessment;
• the assessment methods to be used;
• an invitation to employees to identify any accommodations they may need for the assessment process;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.2.6 - Step 6 – Determine which employees are to be retained and which are to be laid off

Selection is a crucial step in the decision-making process, and all decisions must be recorded and substantiated to ensure accountability of decisions. Thus, it is important that the manager has confidence in the assessment process and the reason for the selection decision, and that they can clearly explain them to the affected employees.

The selection of the employees to be retained and those to be laid off is based on the selection strategy that was developed and communicated to employees earlier in the process, so that at this point, the manager has established and applied the appropriate merit criteria, and has thoroughly assessed the employees against them to make appropriate decisions.

Additional information regarding selection decisions may be found in the PSC’s Guidance Series - Assessment, Selection and Appointment.

Example:

5.2.7 - Step 7 - Communicate results to employees

Once the determination as to which employees are to be selected for retention and which are to be selected for lay-off has been made, the manager should inform employees as soon as possible. To ensure transparency and fairness of the process, all employees who were assessed should be informed of the selection results at the same time.

While informal discussion as contemplated by section 47 of the PSEA does not apply to the selection for retention or lay-off process, the guiding values of fairness and transparency mean that the manager should be prepared to discuss and explain the assessment results to employees. Information provided to an employee would relate only to that employee, as the Privacy Act protects personal information. Any information about a third party must not be disclosed.

Advise the employees who have been selected for lay-off, and provide them with an opportunity to complain to the PSST

Subsection 21(5) of the PSER requires the manager to inform, in writing, the employees who have been selected for lay-off of their selection and the proposed lay-off date. Pursuant to section 65 of the PSEA, employees who are informed they have been selected for lay-off are also informed of:

• their opportunity to complain to the Public Service Staffing Tribunal (PSST); employees may complain on the grounds that their selection constituted an abuse of authority - as stated in subsection 2(4) of the PSEA, abuse of authority includes bad faith and personal favouritism; and
• the manner and the time period within which a complaint may be made, as provided by the Public Service Staffing Tribunal Regulations.

To respect the guiding values of fairness and transparency, the manager should advise the employees who are selected for lay-off of the names of the employees who are selected for retention.

Subsection 65(2) of the PSEA provides that no complaint may be made against the decision to lay-off employees, against the determination of the part of the organization and positions to be affected, or the number of employees to be laid off.

Where the PSST finds a complaint to be substantiated, it may set aside the decision to lay-off the employee and order the deputy head to take any corrective action that it considers appropriate.

A full listing of the PSST's mandate and procedures (including the timing of submissions) may be found on the PSST's Web site.

The manager must inform the PSC in writing of the names of the employees who have been selected for lay-off and of the proposed lay-off dates. Organizations provide this information to the PSC by registering surplus employees in its Priority Information Management System (PIMS). PIMS is designed to facilitate the appointment of persons who are entitled to a priority for appointment.

Advise the remaining employees they will be retained

Employees who have been selected for retention are advised in writing that they are to be retained, and that they will remain in their current position.

Example:

5.3 - Situation 3 - Workforce reduction, with significant changes in some of the duties, and with changes to some of the merit criteria:

The manager has determined that some, but not all, of the similar positions are to be eliminated. There are substantial changes to the duties of the positions that will remain, and there are different or additional merit criteria established for the remaining positions. The classification decisions for some but not all of the remaining positions indicate they are new positions from a classification perspective.

5.3.1 - Step 1 – Determine the part of the organization that is affected

When faced with a WFA situation, the manager must determine the organizational and geographical boundaries within which the employees are to be selected for retention or lay-off. In doing so, the manager and the HR Advisor should first consult the organization’s business and HR plans, as they are a useful source of information when conducting an environmental scan, a work force analysis and a skills gap. By understanding the current and future operational reality facing the organization, the manager can make decisions that serve the interests of the organization and that treat employees fairly. As in every step of this process, the manager should advise employees and bargaining agents of any decisions made in as timely a manner as possible.

Some questions to consider in determining the part of the organization that is affected:

• Is it a section?
• Is it something larger, such as a division or a directorate?
• Is it something very significant, such as an entire branch or a regional office?
• Is it a program or a type of work that is carried out by more than one organization?
• Is the affected area local, regional, or national?

Communication with employees and consultation with bargaining agents

It is important to keep all employees advised throughout the WFA process of major decisions affecting them. Consultation with bargaining agents is essential. This step is important because at this stage, the manager has made critical decisions that will affect not only the life of the organization but more importantly, will affect the lives of employees. It is essential that each employee and bargaining agents have this information as soon as possible to ensure knowledgeable bargaining agent representation and help employees make important decisions about their own lives and careers.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the business and HR plans of the organization, as a context for understanding why WFA is being applied in the affected part of the organization;
• the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information available at this early point.

Early and frequent communication does not mean that the manager cannot change their mind, although this should be avoided if possible. If changes are necessary, the manager should be able to clearly explain the rationale for the changes as they relate to the needs of the remaining positions and the organization.

Example:

5.3.2 - Step 2 - Identify the similar affected positions and employees

The manager identifies the similar positions that are affected. The employees who occupy the positions are identified as affected, and are to be assessed to select which are to be retained and which are to be laid off.

As indicated in Section 4, affected employees who have presented performance, incapacity or disciplinary problems should be dealt with prior to the selection for retention or lay-off process, in accordance with employer policies. Regardless, these employees are included in the selection for retention or lay-off process.

Considerations when identifying the similar affected positions

Some questions to consider:

• Are any of the positions unique or stand-alone?
• Are there any pools of reasonably homogeneous positions, for example, those with the same or very similar duties? The similar positions might be CR-4 finance assistants, or they might be positions that are classified as CR-4 human resources assistants, including staffing and labour relations assistants.
• Can a case be made for somewhat similar positions classified at the same group and level to be considered as homogeneous, for example, human resources, finance and administrative assistants classified as CR-4s?
• Do the positions require the same or similar merit criteria?

Considerations when identifying affected employees

It is important to note that some employees performing the duties of the affected positions are identified as affected, while others are not.

• Employees to be identified as affected are:
  • incumbents of the affected positions who are performing duties elsewhere, such as:
    • employees on assignment/secondment elsewhere; and
    • employees who have been appointed on an acting basis elsewhere;
  • incumbents of the affected positions who are on a leave of absence, unless their position has been filled indeterminately behind them; and
  • all other incumbents of the affected positions.
• Employees not to be identified as affected are:
  • specified term employees - they are subject to lay-off; but are not subject to the selection for retention or lay-off process as specified in subsection 21(6) of the PSER, nor are they entitled to a priority for appointment; and
  • employees who are performing the duties of the affected positions, but who do not occupy them on a substantive basis, such as:
    • employees on assignment/secondment from elsewhere; and
    • employees appointed on an acting basis from elsewhere.

The manager should ensure that employees working in the affected area understand why some employees have not been identified as affected.

Communication with employees and consultation with bargaining agents

It is important to keep in mind that for those organizations for which TB is the employer, the NJC WFAD and the other WFAAs require notifying bargaining agents before notifying employees at certain steps in the WFA process.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• an explanation of the new organizational structure, including the number of positions to be eliminated, and the number that have been created;
• a brief description of the new positions;
• the staffing strategy for the new positions;
• the number of employees who have been identified as affected and will be assessed for the selection for retention or lay-off process;
• an explanation as to why some employees were not identified as affected;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.3.3 - Step 3 - Determine the selection strategy for the new and existing positions

The manager has the flexibility to determine the appropriate staffing and lay-off strategy, so depending on the situation, different options exist. The manager should consult with their HR Advisor for advice on these strategies. Once the strategies have been determined, they can be used to make further decisions, such as establishing the merit criteria, the appropriate assessment methods and the selection criteria for the new positions.

For example, employees may volunteer for lay-off at any time, and a valid strategy may be to invite employees to volunteer for lay-off as early as possible.

The staffing strategy is crucial because there is an elimination of the existing positions at the same time as the creation of new positions. In this situation, the manager should conduct an appointment process to fill the new positions first. This provides an opportunity for some of the affected employees to be placed, thus reducing their number. The manager establishes and applies essential qualifications and the other merit criteria, including “placement of affected employees” as an organizational need for the appointment process. Should some of the affected employees be appointed to the new positions, the manager then identifies the remaining affected employees for lay-off. By first conducting an appointment process and then identifying for lay-off the remaining affected employees, the employees who participated in the appointment process will have an opportunity to complain to the PSST, as provided by section 77 of the PSEA.

This approach is fair and transparent to the affected employees, while providing them with access, as they have an opportunity to be considered for the new positions. As well, first appointing affected employees to the new positions results in a reduction in the number of employees to be identified for lay-off. There is an appropriate recourse mechanism available for employees for the selection for appointment.

Considerations when conducting an appointment process to fill the new positions

As the selection strategy includes conducting an appointment process prior to the selection for retention or lay-off process, the manager should consider several options to limit the impact of WFA on the affected employees.

An appointment process conducted in this situation is subject to the PSEA and the PSC’s Appointment Policy, as is any other appointment process. Employees who are to be appointed must meet the merit criteria required for the work to be performed, including official language proficiency, unless excluded pursuant to the Public Service Official Languages Exclusion Approval Order.

If the organization’s area of selection policy permits it, the area of selection could be limited to the affected area of the organization. This would ensure that affected employees are considered first.

Whether the area of selection is limited or not, when establishing the merit criteria for the new positions, the manager could establish an organizational need of “placement of affected employees”, and apply this merit criterion to select employees for appointment. This would ensure that affected employees are considered first for appointment.

The manager could invoke section 43 of the PSEA, which provides that should the PSC consider that the appointment of a priority person would result in another person having a priority right, then the PSC may decide to not apply the provision in that case. This means that when requesting priority clearance for the appointment process, the PSC may agree to not refer any other priority persons.

An appointment process conducted under these circumstances may result in an increased level of stress on the affected employees, and should therefore be conducted as quickly as possible.

Communication with employees and consultation with bargaining agents

Communication with employees and consultation with bargaining agents at this step should cover the following:

• an invitation to employees to volunteer for lay-off;
• the overall selection strategy and the process to be followed for both the appointment process and the selection for retention or lay-off process, in general terms;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.3.4 - Step 4 - Establish the merit criteria and the selection criteria

The manager reviews the organization’s business and HR plans, in consultation with the HR Advisor. As there are changes to the remaining positions that warrant different or additional merit criteria, the manager reviews the existing merit criteria to determine their relevance with respect to the work to be performed, and establishes new merit criteria for the new duties, taking into account the current and future operational requirements and needs of the organization.

Essential qualifications

Essential qualifications are qualifications that are required for the employee to perform the work. To be selected for retention, an employee must meet each essential qualification. When a manager identifies a qualification as essential, the manager is stating that if an employee does not meet that qualification, they could not function in the position. If a qualification is not essential to perform the work, then it may be an asset for the work to be performed and, if so, it should be identified that way.

Essential qualifications may be assessed on a “meets/does not meet” basis, and this would be appropriate when assessing some essential qualifications, for example, education. However, the degree to which an employee meets an essential qualification would likely be the deciding factor in a selection for retention or lay-off process. If strength in a particular essential qualification, such as writing ability, is to be used as a criterion for the selection for retention, it would not be possible to differentiate among employees if they were assessed on a “meets/does not meet” basis for the qualification.

Official language proficiency

The Official Languages Act states that official language requirements must be set objectively for the functions to be performed. As well, paragraph 30(2)(a), which defines the meaning of merit, provides that official language proficiency is an essential qualification. For this reason, official language proficiency may be established only as an essential qualification, and not as an asset qualification

As the selection for retention or lay-off process is not an appointment process, non-imperative staffing, as provided for in the Public Service Official Languages Exclusion Approval Order, does not apply.

Other merit criteria

While all essential qualifications are established for the work to be performed, the other merit criteria (asset qualifications, operational requirements and organizational needs) may be established for both the current and future needs of the position and the organization. It is equally important to establish the other merit criteria to retain employees for the current and future needs of the organization.

Examples of how the merit criteria may be established:

• A government office serves an area that includes a major ethnic community that is accustomed to having a number of officers who speak the language of the community. If operational requirements dictate that a certain number of officers, but not all, are required to possess the language skills of the community, then it would be appropriate to apply that skill as an asset qualification to the selection of some of the employees to be retained, but not to others, or to apply a higher level of skill to some but not to others.
• The number of similar administrative positions is being reduced from 10 to six positions. The work descriptions are similar and have the same requirement for word processing duties. However, in the past four years, those duties were performed by only two of the employees. After the reduction, all the employees retained will be expected to perform word processing duties. In this context, it would be appropriate to establish ability to perform word processing duties as an essential qualification.

Other considerations

The manager should consider whether they should provide an opportunity to affected employees to acquire the merit criteria required before the selection for retention or lay-off process is conducted. This will vary with the nature of the merit criterion, the time required to acquire it and the operational reality of the organization.

For example, if a merit criterion is possession of a driver’s licence, should employees be provided an opportunity to obtain it? In answering such questions, the manager should consider whether operational needs can accommodate the time required to meet a merit criterion before the selection for retention or lay-off process must be conducted.

Examples of other questions the manager may wish to consider in this situation are:

• How long would it take the employee to obtain a driver’s licence?
• What would be the next step if the employee fails to obtain a driver’s licence?
• Will the manager wait until the employee can try again to obtain it?

There are no easy answers to these sorts of questions, and the manager should consult with their HR Advisor for assistance. In resolving such issues, the manager must try to achieve a reasonable balance between the operational reality, such as the impact of a delay in conducting the selection for retention or lay-off process, and fairness to the employees involved. If possible, the manager should give employees sufficient advance notice so they can take the necessary actions prior to the selection for retention or lay-off process.

Establishing the selection criteria

Prior to conducting the selection for retention or lay-off process, the manager should objectively establish the criteria they will use to select employees for retention. The selection criteria are based on the merit criteria being applied. It could be a strength in one particular merit criterion, or a combination of the merit criteria, and could vary from one position to another. The guiding values of fairness, access, transparency and representativeness must be respected when selecting employees for retention or lay-off.

For example, if the affected part of the organization were to become the information centre of an organization, one selection criterion could be strength in written communication for half of the similar positions, and strength in data base management for the other half. This would recognize that even though the employees were being assessed for retention in similar positions, the emphasis in some positions would not be exactly the same as in others.

Informing employees about the selection criteria early may avoid a misperception of personal favouritism.

Communication with employees and consultation with bargaining agents

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the merit criteria, including their definitions and if applicable, the relative weighting of each one;
• the selection criteria that will be used to select the employees to be retained;
• an invitation to employees to identify any accommodations they may need for the assessment process;
• an invitation to employees to volunteer for lay-off;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.3.5 - Step 5 - Determine the assessment methods to be used, and assess the affected employees

The objective of the assessment process is to determine that the employees selected for retention meet the merit criteria required to perform the continuing functions of their positions, based on the needs identified in the organization's business or HR plans. Appropriate assessment methods must be chosen or developed so the employees can be assessed against each merit criterion to ensure the right employees are selected for retention.

Employees who volunteer and are accepted for lay-off, and employees who resign or retire before the expected lay-off date are not included in the assessment process.

Assessment methods must produce information that is relevant to all the merit criteria being assessed. The amount of information needed to assess an employee's competence with respect to a particular merit criterion depends on the nature and the importance of the criterion, as identified by the manager. The use of multiple, well-developed assessment tools generally provides more complete and valid information. The integration of information from more than one source ensures a more complete and accurate picture of the employee being assessed.

When determining which assessment method to use, the manager may choose to use assessment methods such as interviews, written examinations, reference checks, etc. Using different sources of information enhances the assessment process and permits an evaluation of the consistency of performance over time and across various situations. However, this does not preclude the manager from using other assessment methods, such as descriptions of an employee's past performance and the manager’s own knowledge of an employee’s performance, as a source of information if it will provide sufficient information to assess an employee against a particular merit criterion.

In all cases, the manager must ensure that the employees selected for retention meet the essential qualifications and any other merit criteria that are being applied. Although employees selected for retention must always meet the essential qualifications, the manager may select those who meet an asset qualification, an organizational need or an operational requirement before assessing the essential qualifications if it is more efficient to do so.

Additional information regarding assessment may be found in the PSC’s Guidance Series – Assessment, Selection and Appointment.

Considerations related to the assessment of official language proficiency

When assessing official language proficiency to select employees for retention in bilingual positions, it is important to note that the results of Second Language Evaluation (SLE) tests are valid for five years, unless the employee is exempted[3] from undertaking further second official language assessment. When this time period expires, the SLE test results of an employee are deemed to be valid for an indefinite period with regard to the employee’s substantive position, as long as the linguistic profile of the position has not been raised above the employee's skill level.

Regardless of whether the official language proficiency requirements of the position are changed, when the employee remains in their substantive position, if their most recent SLE test results demonstrate that they meet the official language proficiency requirements of their position, the employee’s SLE test results remain valid, even if they were obtained more than five years ago.

However, if the employee’s most recent SLE test results demonstrate that they do not meet the official language proficiency requirements of their position, then the employee must undertake another SLE test to demonstrate that they meet those requirements.

Communication with employees

Communication with employees at this step should cover the following:

• a reminder of the merit criteria, including their definitions, and if applicable the relative weighting of each one;
• a reminder of the selection criteria that will be used to select the employees who are to be retained;
• the overall process and expected timing of the assessment;
• the assessment methods to be used;
• an invitation to employees to identify any accommodations they may need for the assessment process;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.3.6 - Step 6 – Determine which employees are to be retained and which are to be laid off

Selection is a crucial step in the decision-making process, and all decisions must be recorded and substantiated to ensure accountability of decisions. Thus, it is important that the manager has confidence in the assessment process and the reason for the selection decision, and that they can clearly explain them to the affected employees.

The selection of the employees to be retained and those to be laid off is based on the selection strategy that was developed and communicated to employees earlier in the process, so that at this point, the manager has established and applied the appropriate merit criteria, and has thoroughly assessed the employees against them to make appropriate decisions.

Additional information regarding selection decisions may be found in the PSC’s Guidance Series - Assessment, Selection and Appointment.

Example:

5.3.7 - Step 7 - Communicate results to employees

Once the determination as to which employees are to be selected for retention and which are to be selected for lay-off has been made, the manager should inform employees as soon as possible. To ensure transparency and fairness of the process, all employees who were assessed should be informed of the selection results at the same time.

While informal discussion as contemplated by section 47 of the PSEA does not apply to the selection for retention or lay-off process, the guiding values of fairness and transparency mean that the manager should be prepared to discuss and explain the assessment results to employees. Information provided to an employee would relate only to that employee, as the Privacy Act protects personal information. Any information about a third party must not be disclosed.

Advise the employees who have been selected for lay-off, and provide them with an opportunity to complain to the PSST

Subsection 21(5) of the PSER requires the manager to inform, in writing, the employees who have been selected for lay-off of their selection and the proposed lay-off date. Pursuant to section 65 of the PSEA, employees who are informed they have been selected for lay-off are also informed of:

• their opportunity to complain to the Public Service Staffing Tribunal (PSST); employees may complain on the grounds that their selection constituted an abuse of authority - as stated in subsection 2(4) of the PSEA, abuse of authority includes bad faith and personal favouritism; and
• the manner and the time period within which a complaint may be made, as provided by the Public Service Staffing Tribunal Regulations.

To respect the guiding values of fairness and transparency, the manager should advise the employees who are selected for lay-off of the names of the employees who are selected for retention.

Subsection 65(2) of the PSEA provides that no complaint may be made against the decision to lay-off employees, against the determination of the part of the organization and positions to be affected, or the number of employees to be laid off.

Where the PSST finds a complaint to be substantiated, it may set aside the decision to lay-off the employee and order the deputy head to take any corrective action that it considers appropriate.

A full listing of the PSST's mandate and procedures (including the timing of submissions) may be found on the PSST's Web site.

The manager must inform the PSC in writing of the names of the employees who have been selected for lay-off and of the proposed lay-off dates. Organizations provide this information to the PSC by registering surplus employees in its Priority Information Management System (PIMS). PIMS is designed to facilitate the appointment of persons who are entitled to a priority for appointment.

Advise the remaining employees they will be retained

Employees who have been selected for retention are advised in writing that they are to be retained, and that they will remain in their current position.

Example:

5.4 - Situation 4 - Workforce reduction, with all positions to be eliminated and new positions to be created, and with new merit criteria

The manager has determined that all positions are to be eliminated. There are new positions created and the merit criteria for these positions are new. The classification decisions for all the positions indicate they are new positions from a classification perspective.

5.4.1 - Step 1 – Determine the part of the organization that is affected

When faced with a WFA situation, the manager must determine the organizational and geographical boundaries within which the employees are to be laid off. In doing so, the manager and the HR Advisor should first consult the organization’s business and HR plans, as they are a useful source of information when conducting an environmental scan, a work force analysis and a skills gap. By understanding the current and future operational reality facing the organization, the manager can make decisions that serve the interests of the organization and that treat employees fairly. As in every step of the process, the manager should advise employees and bargaining agents of any decisions made in as timely a manner as possible.

Some questions to consider in determining the part of the organization that is affected:

• Is it a section?
• Is it something larger, such as a division or a directorate?
• Is it something very significant, such as an entire branch or a regional office?
• Is it a program or a type of work that is carried out by more than one organization?
• Is the affected area local, regional or national?

Communication with employees and consultation with bargaining agents

It is important to keep all employees advised throughout the WFA process of major decisions affecting them. Consultation with bargaining agents is essential. This step is important because at this stage, the manager has made critical decisions that will affect not only the life of the organization but, more importantly, will affect the lives of employees. It is essential that each employee and bargaining agents have this information as soon as possible to ensure knowledgeable bargaining agent representation and help employees make important decisions about their own lives and careers.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• the business and HR plans of the organization, as a context for understanding why WFA is being applied in the affected part of the organization;
• the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information available at this early point.

Early and frequent communication does not mean that the manager cannot change their mind, although this should be avoided if possible. If changes are necessary, the manager should be able to clearly explain the rationale for the changes as they relate to the needs of the organization.

Example:

5.4.2 - Step 2 - Identify the similar affected positions and employees

As all positions in the affected part of the organization are affected, there is no need to identify which are similar. The employees who occupy the positions are identified as affected.

As indicated in Section 4, affected employees who have presented performance, incapacity or disciplinary problems should be dealt with prior to the WFA process, in accordance with employer policies.

Considerations when identifying affected employees

It is important to note that some employees performing the duties of the affected positions are identified as affected, while others are not.

• Employees to be identified as affected are:
  • incumbents of the affected positions who are performing duties elsewhere, such as:
    • employees on assignment/secondment elsewhere; and
    • employees who have been appointed on an acting basis elsewhere;
  • incumbents of the affected positions who are on a leave of absence, unless their position has been filled indeterminately behind them; and
  • all other incumbents of the affected positions.
• Employees not to be identified as affected are:
  • specified term employees - they are subject to lay-off; but are not subject to the NJC WFAD, nor are they entitled to a priority appointment;
  • employees who are performing the duties of the affected positions, but who do not occupy them on a substantive basis, such as:
    • employees on assignment/secondment from elsewhere; and
    • employees appointed on an acting basis from elsewhere.

The manager should ensure that employees working in the affected area understand why some employees have not been identified as affected.

Communication with employees and consultation with bargaining agents

It is important to keep in mind that for those organizations for whom TB is the employer, the NJC WFAD and the other WFAAs require notifying bargaining agents before notifying employees at certain steps in the WFA process.

Communication with employees and consultation with bargaining agents at this step should cover the following:

• an explanation of the new organizational structure, including the number of positions that are to be eliminated, and the number that have been created;
• a brief description of the new positions;
• the staffing strategy for the new positions;
• the number of employees who have been identified as affected;
• an explanation as to why some employees were not identified as affected;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.4.3 - Step 3 - Determine the selection strategy

The manager has the flexibility to determine the appropriate staffing and lay-off strategy, so depending on the situation, different options exist. The manager should consult with their HR Advisor for advice on these strategies. Once the strategies have been determined, they can be used to make further decisions, such as establishing the merit criteria, the appropriate assessment methods and the selection criteria for the new positions.

For example, employees may volunteer for lay-off at any time, and a valid strategy may be to invite employees to volunteer for lay-off as early as possible.

The staffing strategy is crucial because there is an elimination of the existing positions at the same time as the creation of new positions. In this situation, the manager should conduct an appointment process to fill the new positions first. This provides an opportunity for some of the affected employees to be placed, thus reducing their number. The manager establishes and applies essential qualifications and the other merit criteria, including “placement of affected employees” as an organizational need for the appointment process. Should some of the affected employees be appointed to the new positions, the manager then identifies the remaining affected employees for lay-off. By first conducting an appointment process and then identifying for lay-off the remaining affected employees, the employees who participated in the appointment process will have an opportunity to complain to the PSST, as provided by section 77 of the PSEA.

This approach is fair and transparent to the affected employees, while providing them with access, as they have an opportunity to be considered for the new positions. As well, first appointing affected employees to the new positions results in a reduction in the number of employees to be identified for lay-off. There is an appropriate recourse mechanism available for employees for the selection for appointment.

Considerations when conducting an appointment process to fill the new positions

As the selection strategy includes conducting an appointment process prior to identifying for lay-off any of the affected employees, the manager should consider several options to limit the impact of WFA on them.

An appointment process conducted in this situation is subject to the PSEA and the PSC’s Appointment Policy, as is any other appointment process. Employees who are to be appointed must meet all the merit criteria required for the work to be performed, including official language proficiency, unless excluded pursuant to the Public Service Official Languages Exclusion Approval Order.

If the organization’s area of selection policy permits it, the area of selection could be limited to the affected area of the organization. This would ensure that affected employees are considered first.

Whether the area of selection is limited or not, when establishing the merit criteria for the new positions, the manager could establish an organizational need of “placement of affected employees”, and apply this merit criterion to select employees for appointment. This would ensure that affected employees are considered first for appointment.

The manager should consider invoking section 43 of the PSEA, which provides that should the PSC consider that the appointment of a priority person would result in another person having a priority right, then the PSC may decide to not apply the provision in that case. This means that when requesting priority clearance for the appointment process, the PSC may agree to not refer any other priority persons

An appointment process conducted under these circumstances may result in an increased level of stress on the affected employees, and should therefore be conducted as quickly as possible.

Communication with employees and consultation with bargaining agents

Communication with employees and consultation with bargaining agents at this step should cover the following:

• an invitation to employees to volunteer for lay-off;
• the overall strategy and the process to be followed for both the appointment process and the identification for lay-off process, in general terms;
• a reiteration of the services and information available to affected employees and the organization’s career transition plans respecting affected employees; and
• any other information that is available at this point.

Example:

5.4.4 - Step 4 – Communicate results to employees

Once as many affected employees as possible have been placed elsewhere, the, manager is encouraged to inform employees, on an individual basis, that they have been identified for lay-off as soon as possible. To ensure transparency and fairness of the process, all affected employees should be informed at the same time.

Advise the remaining affected employees that they are to be identified for lay-off

Once the appointment process is completed, the next step is to advise the remaining affected employees that they will be identified for lay-off.

Section 65 of the PSEA, which provides for recourse to the PSST when some but not all of the employees are selected for lay-off, does not apply in this case, as all employees are to be identified for layoff.

The manager must inform the PSC in writing of the names of the employees who have been identified for lay-off and of the proposed lay-off dates. Organizations provide this information to the PSC by registering its surplus employees in the Priority Information Management System (PIMS). PIMS is designed to facilitate the appointment of persons who are entitled to a priority for appointment.

Example:

5.5 - Situation 5 – Workforce reduction, with all positions to be eliminated:

The manager has determined that all the similar positions are to be eliminated. As there are no employees to be retained, there is no need to assess them. They are therefore all identified for lay-off, and this guide does not apply.

6. Conclusion

The selection of the employees who are to be retained and those who are to be laid-off must be tied to the organization’s business and HR plans. The merit criteria must be chosen carefully to meet the requirements of those plans. In accordance with section 21 of the PSER, employees occupying similar positions in the affected part of the organization must be assessed and selected for retention or lay-off on the basis of merit. This allows for the business plan to be realized. It is strongly recommended that bargaining agents be consulted (as per the WFADs and collective agreements), and that employees be advised of the organization's plans and the means and rationale for the assessment as early and as often as appropriate to the situation.

7. Legal basis

Section 64 of the PSEA provides deputy heads with the authority to lay off employees, as long as the lay-offs and the selection of employees to be laid off are in accordance with the PSER:

ss.64

• (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.
• (2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head's organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.
• (3) Subsection (1) does not apply where employment is terminated in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act.

Section 22 of the PSEA provides the PSC with its general regulatory authority, including the authority to establish regulations respecting the manner in which employees are to be laid off, and the means of selecting those employees:

ss.22

• (1) The Commission may make any regulations that it considers necessary to give effect to the provisions of this Act relating to matters under its jurisdiction.
• (2) Without limiting the generality of subsection (1), the Commission may make regulations
  • (i) respecting the manner of laying off employees and the manner of selecting employees to be laid off, for the purposes of section 64.

Section 21 of the PSER specifies the manner of laying off employees where some but not all of the employees in the affected part of an organization are to be laid off, as follows:

ss. 21

• (1) If the services of one or more employees of a part of an organization are no longer required in accordance with section 64 of the Act, the deputy head shall assess the merit of the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify, in accordance with merit, [boldface added] the employees who are to be retained having regard to the continuing functions of that part of the organization and the remaining employees who are to be advised that their services are no longer required and are to be laid off.
• (2) Deputy heads shall record the reasons for the selection of those employees to be retained.
• (3) Despite subsection (1), the determination of employees to be laid off in the Ship Repair group in the Department of National Defence shall be based on a combination of merit and seniority factors and shall be made in consultation with the bargaining agents concerned.
• (4) Despite subsection (1), if an employee volunteers to be laid off, the deputy head may advise the employee that their services are no longer required and may lay off the employee.
• (5) The deputy head shall, in writing, inform
  • (a) the Commission of the names of the employees who are to be laid off in accordance with this section and the proposed date of the lay-off; and
  • (b) any employee who is advised that their services are no longer required, of the proposed layoff date.
• (6) Subsections (1) to (5) do not apply to an employee who is appointed for a specified period.

The PSEA defines merit in section 30. The definition includes essential qualifications, current and future asset qualifications, operational requirements and organizational needs. Essential qualifications must always be met; the choice and use of the other merit criteria are at the discretion of the manager, and may be applied depending on need. Section 30 of the PSEA refers to appointments, but the definition of merit also applies to the selection of employees to be retained or laid off, pursuant to section 21 of the PSER.

Employees selected for lay-off may be declared surplus prior to being laid off. It is important to note that the authority to declare employees surplus flows from employer policies and WFAAs. There is no provision in either the PSEA or the PSER to declare employees surplus, only to provide them with an entitlement to a priority for appointment, and to lay them off. Employees who are entitled to surplus status remain in that status for varying periods, as per the PSEA and PSER, the NJC WFAD and the other WFAAs, during which time they may be considered for or marketed for other positions to avoid lay-off.

8. References and related documentation

Legislation

• Public Service Employment Act
• Public Service Employment Regulations
• Public Service Official Languages Exclusion Approval Order
• Public Service Official Languages Appointment Regulations
• Official Languages Act
• Financial Administration Act
• Privacy Act

Other References

• Public Service Commission
  • Guide to Implementing the Assessment Policy
  • Guidance Series – Assessment, Selection and Appointment
  • Guide to Assessing Merit
  • Assessment Tools (PSC standardized tests)
  • Priority Administration Web site
  • Priority Administration Guide
• Treasury Board Secretariat
  • Collective Agreements
  • Directive on Career Transition for Executives
• Public Service Staffing Tribunal
  • Public Service Staffing Tribunal Regulations
  • Procedural Guide
• National Joint Council
  • Work Force Adjustment Directive

9. Frequently Asked Questions

1. What constitutes a "new" position?

Managers should consult their classification advisor to determine if the positions are new from a classification perspective. If the position is new from a classification perspective, then an appointment or deployment is required to place an affected employee in that position.

2. What happens if the analysis of current and future requirements results in the creation of positions that are very different from the existing positions?

Sometimes WFA or downsizing coincides with reorganization or transformation of the way work is done and results in the creation of positions that cannot reasonably be considered similar to the positions from which employees are to be laid off. If this is the case, there are different options available. The following are examples of some of these options:

• Conduct an internal appointment process (advertised or non-advertised), subject to priority clearance from the PSC. Those incumbents of the affected positions who are not appointed to the new positions are selected for lay-off.
• If the organizational area of selection policy permits, the organization could choose to reduce the area of selection to the affected work unit, since the employees who are not appointed may be selected for lay-off.
  • The organization could also choose to limit appointments to those employees in the affected part of the organization by establishing an organizational need such as ‘Employees in the affected part of organization X’.
  • Manager should consider invoking section 43 of the PSEA, which provides that should the Commission consider that the appointment of a priority person will result in another person having a priority right, then the Commission may decide to not apply that provision in that case. This means that when requesting priority clearance when conducting the appointment process, the PSC may agree to not refer any other priority persons that may be available.
• Select all the affected employees for lay-off and declare them surplus, and consider them as priority persons for the new positions, appointing those who meet the essential qualifications.
  • This latter approach may be considered less desirable because it limits the flexibility available to the manager, who may apply only the essential qualifications when appointing a person with a priority for appointment. In addition, this approach could impose additional stress on employees who might not otherwise have to be declared surplus.

3. Is it necessary to assess an employee's knowledge as part of the process of selection for retention and lay-off?

Not necessarily. The merit criteria must collectively cover the work to be performed, including knowledge, as needed. In some cases, specifying a certain merit criterion implies possession of another. For example, the ability or skill to apply knowledge may, in some circumstances, presuppose the possession of that knowledge. Another example would be a simulation that requires a certain level of knowledge in order to demonstrate abilities and personal suitability.

In other circumstances, new knowledge may be required that was not required previously, or may be required because the continuing positions, though similar, are not identical. In such cases, it may be reasonable to select on the basis of aptitude to learn and apply the new knowledge. In any event, managers must determine whether or not employees must possess the knowledge to be selected for retention and if required, whether it would be an essential qualification or an asset qualification.

In respecting the guiding values of transparency, it is advisable to communicate clearly to employees which merit criteria are to be assessed. When in doubt, and if it is certain that a knowledge factor will be assessed, it is advisable to state the knowledge factor as a merit criterion.

4. My organization is only going through reduction. We are eliminating five of our positions. There are no new positions to be created. I am a manager who has supervised the same group of employees for the past 10 years and I know my employees’ work. Why do I have to assess every single merit criteria for the employees who have been selected for retention? I have already documented the selection decision and have the assessment of two of the merit criteria.

The PSER requires that the selection for retention be in accordance with merit. In order to demonstrate merit is respected, employees have to be assessed against all merit criteria that is applied. Bear in mind that a manager has the flexibility to determine the assessment methods used. For example, section 36 of the PSEA suggests “a review of past performance and accomplishments” as an assessment method.

5. Could an employee's self-assessment be used as one of the assessment tools?

It is a management responsibility to assess employees for retention and lay-off.

Managers may use information provided by employees to support their assessment. For example, employees could be asked to provide verifiable behaviour-based descriptions of their performance from their own experience to illustrate the degree to which they possess merit criteria, such as abilities or personal suitability factors. Managers would then verify and assess the information provided against predetermined criteria. The most likely approach would be to use the information in conjunction with information obtained from other sources, such as reference checks or performance appraisals. Note that self-assessments used alone may not be reliable indicators of future performance.

6. Do I have to give employees a lot of notice prior to assessing them?

It depends on your particular situation. Consideration should be given to whether the merit criteria established consists of new merit criteria as well as the assessment methods.

7. Organizations are required to make every reasonable effort to retrain their affected employees. How do I factor this in with my process of selection for retention and lay-off?

It depends on your particular situation. Your timelines will be a big determining factor. Please refer to the Considerations section in Step 4 of Determine the merit criteria and the selection criteria for more information. Note that employees selected for retention must be assessed in all merit criteria established for the position and they must meet all requirements of the position.

8. Should employment equity considerations factor into determining who to retain and who to lay-off?

Maintaining or achieving employment equity goals may be an organizational need merit criterion, and could be critical to the selection. Managers must ensure that this is a need reflected in the organization's employment equity or HR plan.

Of course, the requirement for employees to self-identify should be made known beforehand to all employees who are to be assessed for retention and lay-off if this is to be applied.

9. How is an employee's second official language assessed in a selection process for retention and lay-off?

Official language proficiency in a bilingual position is assessed on a "meets/does-not-meet" basis using the Second Language Evaluation (SLE) test, except where the second language requirement of the position has been identified as code "P". It is important to bear in mind that SLE results are valid for five years (unless an employee is exempt from undertaking further second official language assessment). When this time period expires, the SLE results of an employee who has not obtained an exemption are deemed to be valid for an indefinite period, but solely with regard to the position held by the person, as long as the linguistic profile of the position has not been raised above the employee's skill level. Consequently, if new positions have been created, employees with expired SLE results will need new SLE results to be appointed or deployed.

10. How are employees who have been appointed on an acting basis in an affected position treated in a process for selection for retention and lay-off?

These employees are not included in a selection for retention and lay-off process that includes the position in which they are acting. When the services of the acting employees are no longer required, they will return to their substantive position.

However, "acting" employees are to be included in any selection for a retention and lay-off process that affects their substantive position.

11. How are persons on secondments or assignments handled in a process to select employees for retention and lay-off?

The principles that apply to acting appointments also apply to secondments or assignments.

12. How are seasonal employees in an affected position treated in a process for selection for retention and lay-off?

Seasonal employees are indeterminate employees and should be treated as such. Management will have to look at the operational requirements and determine if the organization requires seasonal positions in the future.

13. How are part time employees in an affected position treated in a process for selection for retention and lay-off?

Part time employees are indeterminate employees and should be treated as such. Management will have to look at the operational requirements and determine if the organization requires a full time position or a part time position in the future.

14. How is personal information concerning employees involved in a selection for retention and lay-off process handled?

Managers must respect the Privacy Act, which protects personal information relating to a third party.

Employees assessed in a selection for retention and lay-off process must be provided with sufficient information concerning themselves to understand the decision. The information provided would relate only to that employee. This information could include any factors that were taken into account, including the merit criteria used, how the assessment was carried out and the person's assessment results.

Before the selection for retention and lay-off process begins, managers must inform employees of the merit criteria that will be applied. For example, this would include the intent to apply employment equity as an organizational need. To promote transparency, managers should also inform employees of how the merit criteria will be used to make selection decisions. For example, if ranking will be used to determine who is retained and who will be laid off, this should be communicated to employees.

Communicating these criteria and the intent could lead to the characteristics of the employees who are retained to be deduced by other employees with some degree of accuracy. This could include conclusions about an employee belonging to a designated employment equity group, as well as their other attributes, such as knowledge or skills. Employees should be aware that when they self-identify as members of an employment equity group for the purpose of the selection for retention and lay-off process, their membership might be deduced by other employees, by virtue of the outcome of the process.

If employees file a complaint with the PSST, access to information concerning the process, about themselves and about third parties must be in accordance with the PSST regulations and policies.

Any questions respecting privacy and access to information should be discussed with the organization's privacy and access to information experts.

15. Can the Personnel Psychology Centre tests be used in a selection for retention and lay-off?

Yes, Personnel Psychology Centre (PPC) tests can be used when the criteria assessed by the PPC tests are included among the merit criteria of the position. For information about PPC tests and services, consult its Web site.

16. Can a manager use a particular merit criterion as a screening tool in a selection for retention and lay-off process? For example, declaring surplus all employees who do not meet that criterion and continuing selection with those who do meet it?

This may be an appropriate course of action, especially in a WFA situation that involves a large number of employees and few remaining positions. Any merit criterion may be used as a screening tool in this way. Employees who do not meet that criterion would not be considered further for retention and would be selected for lay-off.

17. How do you manage a selection for retention and lay-off process that involves one or more salary-protected employees occupying positions at the level at which the adjustments are to take place?

Salary-protected employees are considered only in selection for retention and lay-off processes that involve the positions in which they are employed. This means that the selection has to do with the classified level of the position occupied by the employee only, rather than the level of the salary protection.

18. There is a term employee in the affected area of the organization who has just, or will shortly achieve, three years' service. Should that employee be included in the selection for retention and lay-off process?

Section 59 (1) provides that conversion to indeterminate status is automatic if the conditions prescribed by the employer are met. If the term employee has reached the end of the cumulative period specified by the employer, the employee is converted to indeterminate status and is included in the assessment for the retention and lay-off process. If the term employee has not yet reached the end of the cumulative period, then they should be treated in accordance with the policies of the employer

19. Must the reasons for retaining and the laying off employees be documented?

Yes. Abuse of authority is grounds for complaint to the PSST [PSEA 65(1)],which implies that lay-off decisions must be documented. Paragraph 21(2) of the PSER further expands on the PSEA by requiring that deputy heads record the reason for their decisions.

20. Can the results of a selection for retention and lay-off process be used in a second subsequent selection for retention and lay-off process, for example, four months after the results were initially determined?

Yes, the results may be used more than once, but before doing so, the manager must ensure that:

• in the intervening time it is unlikely that the merit of the affected employees has changed significantly;
• there are no new employees in the affected area of the organization occupying similar positions of the same group and level as those who had originally been assessed; and
• a further notice of the new application of the results is provided to the employees, including notification of their right to recourse.

21. Is it possible to deploy (as opposed to appoint) the affected employees to be retained to newly created positions?

It depends. If new positions are created, a deployment might not be consistent with the values of access and transparency, as they are not subject to the merit principle and there is no right of complaint. Since the process for selecting employees for retention and lay-off is rooted precisely in merit-based selection and transparency, it may be preferable for the employees to be appointed to the new positions.

22. What happens when two employees are equally good and I can only select one to retain?

This is a management decision and in some situations it may be difficult to select. Frequent communication with employees is important. There may be solutions that management had not considered that employees may offer as options.

23. Can I use random selection as a selection decision amongst employees who all meet merit?

Random selection can be used. However, it is important to communicate this decision upfront with employees who are affected. Using random selection may have advantages and disadvantages so careful consideration should be given.

24. Can I use seniority as a selection decision?

Selection is based on merit which includes the current and future needs of the organization. Experience can be used as a selection criterion. However, note that the depth and breadth of experience is not always proportionally correlated with years of experience.

PSER 21(3) has provisions for using a combination of merit and seniority factors for the Ship Repair group in the Department of National Defence only.

25. Can employees on leave be assessed in a SERLO process?

As a first step, managers should ensure that the employee’s position has not been staffed indeterminately if the person has been on leave continuously for over one year. In this situation, the employee on leave will be eligible for a statutory leave of absence priority, and WFA will not apply. For more information, refer to the TBS Directive on Leave and Special Working Arrangements, and PSC Guide on Priority Administration.

Assessment of employees on leave

In many circumstances, an employee who is on a leave of absence can be included in a selection process for retention or lay-off. The most appropriate option should be determined on a case by case basis in conjunction with Labour Relations advice. The following factors should be considered when making the determination:

• The nature of the leave;
• The employee’s expected date of return from leave;
• Special circumstances linked to grounds in the Canadian Human Rights Act;
• Accommodation measures that might be required for the assessment.

In some situations, the manager will be in a position to conduct the assessment of the employee without requiring their participation when the assessment can be based entirely on reference checks, performance appraisals or managerial knowledge. Caution must be exercised when considering this option to ensure that the person is not at a disadvantage.

Employees on a leave of absence that is linked to a protected ground under the Canadian Human Rights Act (extended sick leave, maternity leave, etc.) must be accommodated in the selection for retention and lay-off process up to the point of undue hardship. (Note: When an employee is on medical leave, a physician may be required to determine fitness to participate in the assessment.) If it is determined that the employee on such a leave cannot be accommodated, labour relations staff should be consulted on how to proceed.

If it is determined that the employee can be included in the assessment process while on leave, some important considerations should be taken into account:

• Will the assessment be conducted without requiring the participation of the employee (i.e. when the assessment is based entirely on reference checks, performance appraisals or managerial knowledge)?
• If the employee’s participation is required, accommodation requirements should be determined before the assessment is conducted. Accommodation measures could include conducting assessments outside normal working hours or using alternate methods such as video, teleconference, or email.
• An employee who has been on leave of absence may not have had access to all of the support and information that other employees have been given. They should be provided with the same information at the same time as the employees present on the job, given adequate time to prepare for the assessment, and access to resources and other materials that are available through the workplace. The assessment methods may need to be adapted to ensure that:
  • The assessment is fair;
  • Barriers are removed;
  • The result is equivalent to the information that is on hand for other employees; and
  • The result provides adequate support for the selection decision.

As soon as the assessment results are determined, the employee should be informed of the results and provided with the opportunity to complain to the PSST at the same time as the other employees included in the assessment, in accordance with the considerations set out in Step 7 in the Guide on the selection of employees for retention or lay-off.

26. What if employees go on sick leave during the SERLO process?

The stress of a WFA situation may create legitimate illness in some people, and new personal circumstances may develop independently of the WFA process, so this situation will not be unexpected, nor should it necessarily be considered suspicious. Refer to TBS/OCHRO Disability Management Handbook for Managers in the Federal Public Service) for guidance in handling these situations, including the possibility of requesting that the employee provide a medical certificate from the treating medical practitioner.

Regardless of when the leave commences, employees on sick leave during a SERLO should be treated as has been explained in the general messaging and in the answer to Question 25. The most appropriate option should be determined on a case by case basis in conjunction with Labour Relations advice.

Footnotes

1. Where an employee’s SLE test results warrant, the PSC may grant an exemption from further second official language testing for an indefinite period for each of the three language skills (written comprehension, written expression and oral proficiency). However, this exemption does not apply to the assessment of technical or specialized language skills (code P), which is conducted by means of instruments specially designed to assess them. [Return]

2. Where an employee’s SLE test results warrant, the PSC may grant an exemption from further second official language testing for an indefinite period for each of the three language skills (written comprehension, written expression and oral proficiency). However, this exemption does not apply to the assessment of technical or specialized language skills (code P), which is conducted by means of instruments specially designed to assess technical or specialized language skills. [Return]

3. Where an employee’s SLE test results warrant, the PSC may grant an exemption from further second official language testing for an indefinite period for each of the three language skills (written comprehension, written expression and oral proficiency). However, this exemption does not apply to the assessment of technical or specialized language skills (code P), which is conducted by means of instruments specially designed to assess technical or specialized language skills. [Return]