Workforce Adjustment - Treasury Board
Questions and Answers
What is considered a reasonable job offer?
It is important to note that a “reasonable job offer” (RJO) is technical term that applies to a job offer within the parameters that are set out in the Workforce Adjustment Appendix (WFAA). Even if you think that the job being offered is neither reasonable nor fair, it may still be considered an RJO as defined in the WFAA.
The definition of a reasonable job offer specific to Part I to VI is “an offer of indeterminate employment within the Core Public Administration, normally at an equivalent level, but which could include lower levels. Surplus employees must be both trainable and mobile. Where practicable, a reasonable job offer shall be within the employee's headquarters as defined in the Travel Directive.” (Definitions section of the WFAA)
Under the WFAA, a reasonable job offer:
- must be for indeterminate employment within the Core Public Administration
- will normally be at the same level, but could be for a lower level (in which case the employee would be salary protected).
- should be within the employee's headquarters' area as defined in the NJC Travel Directive, but this may not always be possible
- a RJO could also be an offer from an agency outside the core public service (such as CRA) as long as the salary is not lower, and it is a seamless transfer of all employee benefits including a recognition of years of service for the definition of continuous employment, accrual of benefits, transfer of sick leave credits, and accumulated vacation credits and severance pay.
For employees who are in a workforce adjustment situation due to an Alternative Delivery Initiative (ADI), there is a different definition of a RJO. Type 1 and Type 2 offers are considered reasonable job offers, while Type 3 offers are not. For more information, see PSAC's Info Sheet #10 Alternate Service Delivery Initiatives.
When a work unit is being relocated, the employees who decide that they do not want to relocate must either be given a guarantee of a reasonable job offer or access to the options available to opting employees (3.1.2).
Note however, that while departments must “endeavor to respect employee location preferences”, the department can still offer the relocated position as a reasonable job offer after spending as much time “as operations permit” looking for something in the employee's preferred location (3.1.4). For other WFA situations, a reasonable job offer could be one that is outside the employee's preferred location if the employer cannot identify positions in their preferred area.
For more detailed information, see the PSAC's Info Sheet # on reasonable job offer.
What if my position is affected by a workforce adjustment situation while I am away on leave?
If you are on maternity, parental, sick leave, or other leave without pay, and your position has not been staffed indeterminately, you will be notified in writing at the same time as other employees. However, normally a decision as to whether you will be given a Guarantee of a Reasonable Job Offer or be declared an Opting Employee will not be made until you return to work at the end of the leave.
During the affected period however, even if you are on leave, you may be invited to participate in any assessment processes for retention/layoff or staffing processes to fill new vacancies. The Public Service Commission advises managers to look at each situation on a case-by-case basis, depending on the type of leave. For example, if an employee is on long term sick leave and is unable to participate in an assessment process, or needs accommodation in order to do so, management must accommodate the employee.
Even if you are on leave when you are notified that you are affected, you should become aware of your rights under the WFAA and management should keep you informed about the situation.
If you have been on leave for more than one year and your position was filled indeterminately, then the Workforce Adjustment would not be triggered. You should already be entitled to another type of priority for appointment (for example, a leave of absence priority or disability priority).
Would being declared “affected” in a workforce adjustment situation affect payments such as Disability Insurance (DI), maternity or parental leave top-up, or workers compensation?
Being declared “affected” or surplus during a period of leave should not affect these payments or allowances.
As indicated, when you are ready to return to work, the employer should then determine whether to provide you with a guarantee of a reasonable job offer or declare you an opting employee. Note that the employer has an obligation to accommodate and must not discriminate against an employee due to his/her disability or sex.
What happens if I am declared affected by a WFA situation and I am due to go on maternity or parental leave in the coming months?
The answer to this question will depend on your particular situation, the timing of the WFA situation, and the timing of your leave. In all cases, it is important to ask questions of your manager and your union, and be aware of your rights and obligations under the WFAA.
First, remember that being declared “affected” does not necessarily mean that you will become surplus. It is possible to be declared “affected” and ultimately remain in your job . If however, you are declared “surplus”, due to a lack of work, a relocation, an office closure, or an alternative delivery initiative, then the WFAA sets out certain obligations and processes for what will happen next.
The Workforce Adjustment Agreement does not specifically deal with situations where employees are on leave or a planning to go on leave. However, management must always treat each situation on a case-by-case basis and special considerations must be made.
What to do if you are affected:
Speak to your manager about your situation first and ask how they plan to treat your particular situation. Will time periods be extended or paused during the leave? Will decisions need to be made before or after your leave? Will special considerations or accommodations be made for your situation? Get as much information as possible, preferably in writing.
Review the tools provided on the PSAC website on workforce adjustment and familiarize yourself with them. Speak to your union representative about your situation and ask their advice.
Management has a duty to accommodate, and you can request special accommodation due to your maternity leave. If you are refused accommodation or negatively impacted solely because of your pregnancy or family status, this may be considered discrimination under the Canadian Human Rights Act. If you believe you have been the victim of discrimination based on pregnancy or family status, speak to your union representative about the situation, and the possibility of filing a grievance under the No Discrimination clause in the collective agreement.
What to do if you are a union representative:
These and other questions are also something that should be put on the agenda for discussions by the workforce adjustment committee. Union representatives on these committees should ask management how these situations will be handled, and provide input to protect members in these situations. While they are case-by-case situations, certain guidelines and policies can be put in place to ensure that workers are treated as fairly and equitably as possible.
What if I am in an acting position or on secondment during a workforce adjustment situation?
Employees are only subject to the Workforce Adjustment Agreement if the WFA situation applies to their substantive position.
Therefore, if you are working in another area and your substantive position is affected by a workforce adjustment situation, you will be provided with notice and you must be included in any assessment processes and provided with the rights under the WFAA.
If you are acting in a position in another work area and your acting position is affected by a workforce adjustment situation, you will not be included in the assessment for retention or layoff, since you will be able to return to your substantive position.
Note that an acting employee will not be retained in an acting position in place of an indeterminate employee who is to be laid off. Therefore it is possible that you may have to return to your substantive position before the original end date of the acting assignment.
When is merit applied in situations of job cuts?
In a workforce adjustment situation, management will determine the “affected employees”, that is, those whose services may no longer be required. In each group of similar jobs, management must then do an assessment of merit of the affected indeterminate employees to determine which of these employees will be retained and which will be identified as surplus.
How is merit defined?
The definition of merit is the same definition that is used in the staffing process. Merit is defined as essential qualifications and current and future asset qualifications, operational requirements and organizational needs. Although essential qualifications must always be met, other merit criteria are at the discretion of the manager and are optional and may be applied depending on need.
Management has a lot of discretion to determine what criteria will be included in the merit criteria. The employer should consult with the union when they are determining the merit criteria in WFA situations through the Workforce Adjustment Committee. (for more information, see the PSAC Fact Sheet on Merit and WFA, and the WFA Committee Fact Sheets).
What is the process for applying merit in WFA situations?
For each group of similar positions, management will:
- Review the merit criteria with respect to the remaining work that has to be performed and the current and future operational needs
- Select the merit criteria to be used.
- Determine how employees will be assessed. For example, an assessment could include a review of an employee's file to confirm educational credentials and language test results, the manager's knowledge of the employee's experience and skills, the use of written tests, reference checks, etc.
- Assess the employees based on the merit criteria.
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.
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.
Is seniority considered in the merit assessment?
Seniority or years of service are not automatically considered as part of the merit criteria; however, as management has much discretion in terms of determining the merit criteria, seniority can be included as an asset criterion. This is another example of something that the union can advocate for during the consultation process.
Is employment equity considered in the merit assessment?
Employment equity considerations may also be included as part of the merit criteria. Again, this is up to management, and it must be supported by the department's employment equity or human resources plan. This is something that can be raised by the union at the WFA committee. For more information, see the Fact Sheet on WFA and Employment Equity.
What recourse rights are available if I feel that the merit assessment was not fair?
If a member feels that the merit process has not been fair, they may make a complaint under section 65 of the Public Service Employment Act for abuse of authority in the application merit regarding lay off. For an abuse of authority complaint to succeed, it must demonstrate a serious wrongdoing or flaw in the process that is more than just an error, omission or improper conduct. Discriminatory actions may amount to abuse of authority even if unintentional. It is difficult to prove abuse of authority and each case should be discussed with your component. For more information see the PSAC Fact Sheet on WFA and Merit
Date Modified : 2012/05/03