How is merit defined?
The Public Service Employment Act (PSEA) defines merit as essential qualifications and current and future asset qualifications, operational requirements and organizational needs (Section 30). Although essential qualifications must always be met, other merit criteria are at the discretion of the manager, are optional and may be applied depending on need.
The essential qualifications, asset qualifications, operational requirements and organizational needs, collectively referred to as the merit criteria, form the basis for the assessment of merit.
When a manager identifies a qualification as essential, the manager is stating that if a person does not meet that qualification, that person could not function in the position.
Beyond this, management has extremely broad discretion about how merit is assigned.
What happens in situations of job cuts?
The PSEA gives deputy heads the authority to lay off employees in certain specified circumstances (Section 64). Lay-offs and the identification of employees to be laid off must comply with the Public Service Employment Regulations (PSER). Section 22 of the PSEA gives the Public Service Commission (PSC) its general regulatory authority. The PSC is granted the authority to make regulations about the manner of laying off employees as well as the manner of selecting employeees to be laid off.
PSER Section 21(1) specifies that if the services of one or more employees of a part of an organization are no longer required, then the deputy head must assess the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of theorganization and identify, in accordance with merit, those who will be retained and those who will be declared surplus and potentially laid off.
Management has broad discretion with respect to merit criteria. At its discretion it can place greater emphasis on certain merit criteria to achieve a “right fit” decision. If all of the affected employees meet the essential qualifications, they may be ranked in order of merit to determine those who will be retained and those who will not. Or, management can use other methods as long as what they do is fair and transparent.
Those affected employees who are not selected for retention will then be declared surplus, and may be given a Guarantee of a Reasonable Job Offer, or become an opting employee, under the provisions of the Workforce Adjustment Appendix.
In general managers must:
- Determine the part of the organization that is affected.
- Identify similar affected positions and employees. The employees who occupy these positions will be assessed and identified for potential lay-off.
- Determine the merit criteria and the assessment methods. This step should be done in consultation with the union within the parameters of the Work Force Adjustment Committee.
- Advise those employed in the affected part of the organization of any decisions. These include the rationale and the plans for assessment and selection and the relevant employment transition policies and services available to employees who will be identified for surplus status and lay-off.
- Develop a rating guide and assess all affected employees. Then use the results of the assessment to identify those employees who are to be retained or appointed to new positions within the organization and those who are to be declared surplus and potentially laid off.
- Advise each employee of their assessment results, the right to recourse, the plans of the organization respecting reintegration during the surplus period, access to available transition services and the timing of any actions. Early consultation at the WFA committee helps ensure that the decisions made around merit processes are fair and transparent. Although the union members of the committee may still oppose the initiative a throrough consultation process helps ensure that the process is fair. If the employer listens to the union and seriously considers its advice the union can be an important agent in ensuring the employees understand and participate in the process, when it is in their interest to do so.
What if the employer refuses to discuss the merit criteria?
The Public Service Labour Relations Act says that deputy heads of departments must establish a consultation committee consisting of representatives of the deputy head and the bargaining agents for the purpose of exchanging information and obtaining views and advice on issues relating to the workplace that affect those employees.
Article 1.1.11 of the Work Force Adjustment Appendix (WFAA) says that “Departments or organizations shall advise and consult with the Alliance representatives as completely as possible regarding any work force adjustment situation as soonas possible after the decision has been made and throughout the process and will make available to the Alliance the name and work location of affected employees.”
In the union's view the employer must consult with the union about the merit exercise at the joint WFA committee. It also means that the employer must seriously consider the union's views about what should be included in the merit criteria to ensure that it is both fair and transparent and that it is not perceived by members as being an unfair process. This does not mean that the union should be involved in the merit exercise itself. It should not.
The Public Service Commission has created a guidance document to help employers ensure that the process meets the criteria for merit. It is called Guide on the Selection of Employees for Retention and Lay-off. The PSC clearly states that managers should communicate its decisions to employees including,
- the business and human resources plans of the organization, as a context for the elaboration of the work force adjustment process;
- the services and information available to affected employees and the career transition plans of the organization respecting affected employees;
- the number of people to be retained or laid off;
- the merit criteria, including the definitions and relative weighting and rationale that will be applied in the assessment to determine who to retain and lay off;
- the overall process and expected timing of the assessment for retention or lay-off;
- the methods of assessment when known;
- an invitation to employees to identify any accommodation that may be needed for the conduct of the assessment; and
- an opportunity to self-identify as a member of an employment equity group if the merit criteria include employment equity considerations
What recourse rights are available?
There are not a lot of options since the definition of merit was changed a few years ago, when the government-legislated changes to the Public Service Employment Act and watered down staffing recourse mechanisms. That is one of the reasons why a strong union voice at the work force adjustment committee is so important.
A member who feels the merit criteria or the assessment aren't fair would have to make a complaint under section 65 of the Public Service Employment Act for abuse of authority in the application of merit regarding lay off. The member's component, after analysing the facts of the case to determine its strength, would provide representation before the Public Service Staffing Tribunal. It is extremely important also to make PSAC aware of any actions taken in relation to lay-offs in order to determine if there are systemic issues that need to be addressed.
For an abuse of authority complaint to succeed, it must demonstrate a serious wrongdoing or flaw in the process that is more than a mere error, omission or improper conduct. For example unreasonable or discriminatory actions may amount to abuse of authority even if unintentional.
The five general categories of abuse of authority are:
- When the employer exercises its delegated discretion with an improper intention in mind. The decision could be for an unauthorized purpose, in bad faith, discriminatory, or based on irrelevant considerations.
- When the employer acts using inadequate information such as lack of evidence backing up the decision , or has neglected to consider relevant matters that would impact the outcome of the decsion.
- When there is an improper result including unreasonable, discriminatory, or retroactive administrative actions.
- When the employer bases a decision on an erroneous view of the law.
- When the employer refuses to exercise its decision-making power through the adoption of a policy that restricts its ability to consider individual cases with an open mind.
The Public Service Staffing Tribunal (PSST) has a form for filing complaints. Members do not have to use this form but they must put their complaint in writing. Employees and their representatives should make sure to provide all supporting documentation and use the form as a guideline.
Timelines for PSST complaints are very tight.
The following contains recommended complaint wording around merit for a PSST complaint:
The employer has abused its authority in the application of merit. My selection for lay-off constitutes an abuse of authority under s.65 of the PSEA. [Provide a factual description of the events, circumstances or actions giving rise to the complaint]
If the member is alleging discrimination, add:
My selection for layoff was discriminatory on the basis of ____ (list the ground(s), e.g. disability, race, etc), contrary to the Canadian Human Rights Act.
Although there isn't a requirement for corrective action, employees should include one in their complaint so that the complaint isn't found to be “moot”.
That the Tribunal set aside the decision of the deputy head in selecting me for lay off and order the deputy head to take any corrective action that I may request and the Tribunal considers appropriate.
In cases where discrimination is alleged, the corrective action should also add: and any appropriate remedies pursuant to section 53 of the Canadian Human Rights Act.
Note that in cases of discrimination, the Canadian Human Rights Commission must be notified. This can be done using the Public Service Staffing Tribunal's Form 5.
Employment equity and merit
The PSC's “Guide on the Selection of Employees for Retention or Lay-off” states the following:
“Maintaining or achieving employment equity goals may be one of the criteria on the Statement of Merit Criteria (an organizational need) and could become critical to the selection. Managers must ensure that this is a need reflected in the organization's employment equity or HR plan.”
Including employment equity in the merit criteria is something that the union should advocate for if they know that there is under-representation of one or more equity groups in their department, or if it appears that the cuts are going to hit one or more of the equity groups particularly hard. The union can request the employment equity data from the employer in its consultations.
For more information, see the PSAC fact sheet on Work Force Adjustment and Employment Equity.
WFA and seniority
Management has extremely broad discretion about how merit is assigned. Because of this, seniority can be included as an aspect of merit. However, there is nothing that forces an employer to include seniority among the qualifications used for assessment.
It is the union's view seniority can and should be recognized as part of the merit criteria. This should be raised with the employer at the work force adjustment committee.
The union may be most successful in having seniority recognized as an asset qualification. Merit criteria can be applied in any order, so if seniority is recognized as an asset qualification, the employer could still apply seniority first following which the other criteria would be assessed.
A merit criteria must not act as a barrier to members of equity groups and downsizing must not adversely affect these workers more than others. The PSAC emphasizes that seniority must be applied in a manner that is consistent with notions of substantive equality and respect the rights of employment equity groups.
Will performance evaluations be included in the merit assessment?
Performance evaluations may be included in the assessment process. However, in situations where performance assessments have not been consistent or have not been done fairly, the union may raise this with the employer and argue that the performance evaluations should not be used. This is one reason why it is important for management to consult with unions throughout the entire WFA process and for unions to insist that this consultation take place.