In May 2013, the President of the Treasury Board, Tony Clement, created a media stir when he announced new “performance management” policies for the federal public service. A new policy was officially implemented on April 1, 2014.
The PSAC is working to ensure that this tool is not used in an abusive manner or as a deceitful means to increase the dismissal rate of public service employees. We expect the new program to be fair, open and transparent, to be applied equally to all members of the public service. We will work to ensure that this new program is used to advance public service careers, not end them.
Despite the relentlessly positive spin Treasury Board is using in the materials to implement the new directive, the challenge for us is how we protect members from possible abuse under the “new” performance management regime; both in how performance management is carried out, and the purposes for which it is used.
Nearly all federal collective agreements include language on Employee Performance Review. Standard provisions include such things as:
- Being given the opportunity to sign the assessment form to confirm that you have read it, without implying that you agree with its contents.
- A guarantee that the person evaluating your performance actually supervised or worked with you for a minimum of six months.
- Advance notice if the evaluation process changes.
Some federal collective agreements include these types of additional provisions:
- At the beginning of an assignment, the manager will establish the employee’s objectives for the year, in consultation with the employee.
- If there are concerns about performance, the employer will bring those concerns to the attention of the employee “in a timely manner."
- If employees disagree with their assessments, they have the right to present counter arguments to the manager(s) or review committee(s) responsible.
- If a report pertaining to performance or conduct is placed on an employee’s file, the employee will have the opportunity to sign that report, indicating it has been read, as well as attach written representations with respect to the content of that report.
- No anonymous material, except for statistical data, concerning an employee can be used as evidence.
In addition to the standardization of performance management practices, training and forms across the core public service, a very important feature of the new system will be the implementation of “performance agreements” for all employees, which will include the following:
- Personal and position information;
- Work objectives (to measure the employee’s contribution to the “business priorities” of the organization);
- Competencies (to evaluate expected behaviours);
- A learning and development plan;
- An action plan (if required as a result of deficiencies);
- Checks to ensure the completion of the performance agreement, ongoing evaluation, mid-year reviews and end-of-year assessments.
Under the current implementation plan, performance agreements were supposed to be in place for all core public administration employees by April 1, 2014.
Termination or demotion for unsatisfactory performance
It is well established that grievances on the content of performance evaluations cannot go to adjudication. However, it is possible to file grievances on how performance management processes have been used, such as in cases of termination or demotion for unsatisfactory performance.
Unfortunately, changes to the Public Service Labour Relations Act in 2006 have limited the discretion of adjudicators even in those cases. An adjudicator may only look at whether the employer’s determination of unsatisfactory performance is reasonable. The adjudicator has no jurisdiction to assess the validity of the employer’s decision to demote or terminate the employee, much less determine whether there are mitigating or other circumstances that could lead to changes to the termination or demotion decision.
This does not quite mean that an adjudicator cannot apply certain standards of reasonableness, such as whether:
- The employer acted in good faith;
- The employer has set appropriate standards of performance which were clearly communicated to the employee; and
- The employer gave the employee the necessary tools, training and mentoring to achieve the set standards in a reasonable period of time.
Of course, these are just what Treasury Board insists that it is trying to do with the new performance management directive. Nevertheless, and in light of the minister’s own public comments, this shows why it is essential that we do our best to ensure our members are subject to a performance management system which is fair and transparent, with appropriate protections before decisions to terminate, demote or deny increment increases are made.
Pay for performance
Given their ideological nature, it is hard to avoid the suspicion that the Conservative government will eventually look at other uses for a revamped performance management system. Although it is not in the current directive, one obvious possibility is the implementation of pay-for-performance incentives, such as bonuses and requiring sufficiently positive evaluations to move up through pay bands. Senior federal managers and lawyers are already subject to pay incentives for performance, and such systems are common in the corporate sector. It’s important to note that while federal senior managers are to have their performance pay withheld due to an unsatisfactory performance evaluation, this requirement is rarely enforced.
There is quite of bit of evidence showing that these pay systems are not effective in the public sector, for a variety of reasons. Unfortunately, conservative governments like them, even when the facts get in the way. For example, some studies have shown that pay-for-performance in the public sector actually decreases productivity, job satisfaction and employee engagement and commitment. Other studies have shown that certain groups, particularly lower classified workers, women, and equity-seeking groups, tend to receive lower bonuses than other groups of workers.
We all need to remain vigilant on the uses and possible abuses of performance management in the workplace. This includes:
- Monitoring how the Directive is being utilized, and report any problems to PSAC.
- Using your collective agreement rights push back if the employer oversteps their management rights.
- Working with your union to promote education on members’ rights in regards to performance management.