Canada Employment and Immigration Union - http://ceiu-seic.ca/en/workforce-adjustment/questions-answers/

Questions & Answers

Notification-Employees on Leave

I am on currently on leave from my position. Could I receive a letter while on leave? How does my leave affect my role if it is subject to Workforce Adjustment? 

In these situations, the employee will receive written notification at the same time as other affected employees. Generally, the decision as to whether or not to provide a guarantee of a reasonable job offer will only be made when the employee returns to work at the end of the leave period.

Information is available through the TBS website, Frequently Asked Questions – Work Force Adjustment Agreements (“WFA”)


I am currently out on disability leave. How does the WFA affect me? 

If you are on long term leave, and your position has not been staffed indeterminately, you will be notified in writing at the same time as other employees. 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.

In other words, if you are declared an “opting” employee, you will not have to make a choice about which of the three options to choose until you return to work.

If you have been on leave for more than one year and your position was filled indeterminately, then the Workforce Adjustment would not apply to you. You should already be entitled to another type of priority for appointment (for example, a leave of absence priority or disability priority).

For more information see the PSAC website: WFA & Absences from the Workplace


I am currently on a Leave without Pay. Will I be included in the SERLO process?

If an employee’s position has been staffed indeterminately in the employee’s absence for more than one year- the employee would not be assessed for merit as part of the SERLO process. However, if an employee’s position hasn’t been filled indeterminately in a period of less than one year then they could be included in a SERLO process. A SERLO process is a merit process that the Employer institutes when it decides that there need to cuts to the kind of position this employee occupies and there is more than one employee occupying that same kind of position. That being said, the process is not clear cut and the Public Service Commission (“PSC”) advises managers to make the determination to include an individual on LWOP in a SERLO process on a case by case basis. For example, the type of leave would likely affect a decision of whether or not to include such an employee in the SERLO process (e.g. it may be more likely that an employee on an Education LWOP participates in the SERLO process whereas another employee on Stress or Maternity Leave does not participate in this process.

For more information, please see the Assessment Module of the PSC Guide on the Selection of Employees for Retention or Lay-off (and, if appropriate, the PSC Guide for Assessing Persons with Disabilities) as well as the PSAC Q&A on LWOP.

Everyone in my branch at my level has received an Affected letter and Management has indicated that they will be moving forward with the SERLO process. Rather than undergo the SERLO process and as I am eligible to retire, I want to move forward and complete the form indicating that I will not be participating in this process. If I complete and submit this form by the required deadline, will I be eligible to select the Transition Support Measure option applicable to Opting employees?

If an employee completes and submits the form indicating they will not be participating in the SERLO process, the following will happen:

-they should receive an ‘Opting-NO GRJO’ letter

-they have to proceed to select their preferred option and provide this information in writing by the required deadline.

There should be no restrictions on the selection of one of the three available choices for Opting employees.

Opting Employees

As an opting employee, I haven’t received a Guaranteed Reasonable Job Offer (“GRJO”). What happens now?

When a GRJO cannot be provided, the employee will have 120 days to choose one of three options. Only employees not provided with a GRJO may have access to these options:

  1. a time-limited 12-month surplus priority period in which to secure a reasonable job offer, followed by lay-off if no job offer is found (this option may be of interest to employees whose main priority is to try to maintain public service employment even though there is no GRJO);
  2. a transition support measure, which is a cash payment of up to 52 weeks’ pay, based on years of service in the public service, offered in return for resignation from the public service; or

(c) an education allowance, equivalent to the transition support measure, plus an amount of not more than $10,000 to cover the costs of tuition, mandatory books and equipment at a learning institution.

In the case of the education allowance (c) above, employees can either: resign on the departure date specified by management; or delay their departure date from the public service and proceed on leave without pay for a maximum period of two years while pursuing their education. During the leave without pay, you can continue to be covered by your benefits and superannuation, although you must pay both your share and the employer’s share. At the end of the two-year leave without pay period, unless the employee has found alternate employment in the core public administration, the employee will be laid off in accordance with the Public Service Employment Act.

It should be noted that in the event of failure by an employee to select an option in writing by the end of the 120 day option period, Option A, the 12 month surplus priority in which to secure a reasonable job offer will be assigned to them as the default option. Additionally, once an employee has selected an option in writing-the selection cannot be changed.

Information on options and Transition Support Measure (“TSM”) amounts, please see your collective agreement (Appendix B, Part VI).

I have been given my affected notice and declared an opting employee. I’ve previously had severance paid out to me. Am I eligible for repayment again? 

Severance pay is based on years of continuous service.  If you were paid out your severance because you previously left the public service, and you now have returned to the public service, your years of service for the current payment will be calculated based on the date which you returned to work again for the government. Years of service bought back do not count. The employee is eligible for a TSM based on how many years they have worked in their most recent employment with the government.

If you have been continuously employed with no break in service of more than 3 months, all of your service will count towards the calculation of severance under the lay-off severance pay provisions of the collective agreement, except that anything you have previously cashed out will be deducted. (This applies to those members in the PA, SV, and EB bargaining units who have cashed out some or all of their severance pay).  Note that even if you cashed out all of your severance pay, you will still get some severance pay, because the number of week’s severance pay payable for layoff has increased.

What is alternation and am I eligible? 

Alternation is applicable to opting employees only.Affected employees (who have not received a surplus notice) and employees who have a Guaranteed Reasonable Job Offer (“GRJO”) do not have access to the right to alternation.

During the 120 day opting period only, opting employees can alternate with non-affected employees who wish to leave the public service with a transition support measure or education allowance.

There are a few requirements:

  1. both positions must be at the same level or equivalent (see 6.2.6);
  2. the opting employee must meet the requirements of the position, including language requirements;
  3. the alternating employee must meet the requirements of the other position unless they won’t be performing the job and will be laid off within five days of the move;
  4. they have to exchange positions on the same day.

No provisions are made for a “domino” effect (involving several people is not permissible) or “future considerations”. The alternation must permanently eliminate a function or position. Management decides whether to allow the employees to alternate. Article 6.2.4 of the WFA Appendix states that management will decide if the proposed alternation “is likely to result in retention of the skills required to meet the ongoing needs of the position and the core public administration.” As well, they must be qualified for the position. As such, they will do a merit assessment of the person requesting the alternation.

While it is management that decides whether to allow the alternation, they must be fair and seriously consider all requests. The requests for alternation and potential matches should be discussed at the WFA committees. If management refuses a request for alternation, they should be able to demonstrate why they refused and the refusal should be reasonable. The union should try and deal with any issues or disputes at the WFA committees.

All departments must participate in alternation and departments should also have their own alternation process in place.

Information is available at: The Treasury Board-FAQ on Workforce Adjustment Agreements

The Public Service Alliance of Canada on Alternation

I am considering volunteering for the alternation program. What would my options be?

The person alternating will switch into the opting person’s position and they will then be in their shoes.  They can take the Transition Support Measure (“TSM”) or Education allowance, and as well, severance pay (less any already cashed out), and the pension waiver if they take the TSM and meet the age and service requirements.

I want to alternate with someone who is located more than 40 km’s from my work location. Am I entitled to benefits as per the National Joint Council Relocation Directive? 

Although the collective agreement does not specifically refer to relocations due to alternation, PSAC takes the positions that this alternation request would be considered as ‘Employer Requested”. Therefore, the employer should pay the costs of relocation if the alternation is approved.    The WFA Appendix states that the cost of relocation shall be paid by the employee’s home department (the department that declared them surplus), in accordance with the Travel Directive and NJC Relocation Directive.

Mandatory Equipment as per WFAA

Could computer costs count as an expense for the education allowance?

As per section 6.3.1(c): “education allowance is a transition support measure (see Option (b) above) plus an amount of not more than ten thousand dollars ($10,000) for reimbursement of receipted expenses of an opting employee for tuition from a learning institution and costs of books and mandatory equipment”.  Nowadays, laptops or computers are mandatory at universities and in colleges. There are even some high schools in Canada where it is mandatory. Distance and on-line education are an accepted and acknowledged education medium – especially in the government. For those, people need access to a computer.

Therefore where mandatory for training, employees should be entitled to get reimbursement for any reasonable costs for the purchase of their computer as an expense under the education allowance, if they do not have access to one.

Surplus Employees

What if my position has been declared surplus?

If another suitable job is available or is expected to become available generally in the public service, surplus employees will be provided with a guarantee reasonable job offer (“GRJO”). During the surplus period, employees continue to receive their salary. Being provided with a GRJO means that the employee will retain surplus status with surplus priority until the date on which one of the following occurs:

  • the employee is indeterminately appointed or is deployed to another indeterminate position;
  • the employee is laid off, if a reasonable job offer is refused;
  • the surplus status is rescinded; or
  • the employee resigns.

I have been advised of my surplus status, but I am only 55.  Is retirement an option?

The Treasury Board has a policy, pursuant to the Public Service Superannuation Act, that allows public service employees in certain WFA situations who retire at age 55 with at least ten years of service to be eligible for a waiver of the normal pension penalty. Note that your pension will still be based on your years of service (no additional years of service will be credited to you).  If you are an indeterminate employee under Treasury Board who has been affected by a WFA situation, you must meet one of the following conditions in order to be eligible for a waiver:

  • the employee’s position must be declared “surplus”
  • the employee must be between age 55 and 59 (up to age 60)
  • the employee must have at least ten years of employment with the public service

Additionally, an employee is only eligible for a waiver under specific conditions related to the WFA:

  • the employee must be surplus and have not received a GRJO under the WFA and who is laid off, or resigns in exchange for a payment representing payment in lieu of the surplus period;
  • the employees whose services are no longer required because of a workforce adjustment situation, who has not received a GRJO and who is granted a Transition Support Measure in accordance with the WFA and who resigns from the public service;
  • the employee cannot be in receipt of an educational allowance.
  • the employee cannot have refused a reasonable job offer.

A form must be certified by the Deputy Head or the delegated Authority for the employing department to ensure that you meet the conditions to process an Annual Allowance with a waiver of reduction.

Information is available on the Pension Reduction Waiver Request.

In a case where the employee meets the above criteria but whose 55 birthday falls after the end of the 120 day time limit to choose an option, there may be a possibility of negotiating a different departure date with the employer. Speak with your Union Representative as soon as possible about this situation so they in turn can speak to the employer about delaying your final day at work until the completion of your 55th birthday.

Information is available on Waiver Reduction Eligibility, and Pension and Benefits Information & Personalized Tools.


My section has been told that several of us have been affected and will be tested for our positions using Selection of Employees for Retention or Layoff “SERLO”). Can another employee in my group at a higher grade, whose position will be abolished-be assigned to one of the remaining roles in my section at a lower grade in our section prior to the SERLO process? 

If the employee in your section at the higher grade has had her role declared surplus, they would have the priority for any new jobs that came up including those at a lower level (provided they pass the test for the lower level role within that group).

Information is available on Priority Types and from Section 5-8, Public Service Employment Regulations


I am a surplus employee; can I be assigned to positions at a higher pay grade?

An employee would not be assigned to a higher level position in which there is a pay differential of more than 6% between the two levels (this would be considered a promotion). The position would be opened up to competition. That being said, if the lower level surplus employee applies and qualifies in the competition process, they would get priority over the non-WFA employees.


I am a surplus employee; can I be retrained for a position at a higher pay grade?

The WFAA says that:

“Retraining is on-the-job training or other training intended to enable affected employees, surplus employees and laid-off persons to qualify for known or anticipated vacancies within the Core Public Administration”

If you are an affected employee, a surplus employee or a laid off employee you can be retrained if it assists in maximizing employment.

As per the terms of the Workforce Adjustment Appendix (“WFAA”) – if there is a pay differential of more than 6% between the two levels (i.e. the difference in pay between the employees’ current position and the position at the higher pay grade) would qualify any such appointment as a promotion. Therefore, the Employer is not obligated to provide retraining related to such a situation.

See the WFAA, Section 6.

If there was a huge demand and a lot of vacancies for higher level roles, the Employer could provide the employees at the lower pay grade the required retraining and then run the competition (provided there were no applicable employees at the higher pay grade) but they are not obliged to do so.


What is a reasonable job offer (“GRJO”)?

An GRJO is an offer of indeterminate employment within the core public administration that is normally at an equivalent level, but in exceptional circumstances, may involve a lower-level position appointment with salary protection. While waiting to receive a GRJO, an employee must be both trainable and mobile. The GRJO is defined in the Workforce Adjustment Appendix of your collective agreement.  There is also more explanation on the TBS Web site FAQ page

I received a letter indicating that I have been accorded Surplus Status with a GRJO pending. The letter also states that my services will no longer be required because of a ‘lack of work’. I still have many tasks to be completed going forward and my cubicle desk is stacked with work. Why am I being declared a Surplus employee if there is still so much to be done currently and in the future? Why am I being offered a GRJO if there is a lack of work?

An employee can be accorded Surplus Status (with a GRJO pending) due to a lack of work. Lack of work does not mean that the employee no longer has work to be completed in their current role, or that the work will no longer exist when they leave the role. Rather, one of several case decisions offers this definition:

“Lack of work” is a situation which exists when an employer determines that the work being performed can be performed by fewer people. The phrase “lack of work” does not necessarily imply that business has slowed down, or that employees are not busy. However, the employer has the right to determine how many employees to hire to perform the required work, and whether the work can be performed with fewer employees. Where the employer determines to cut back on employees, for whatever reason, the resulting terminations are related to lack of work. It should be clear that lack of work is not simply a description of the situation after an employee has been laid off.

See Gary Flieger and Terry McNutts v.The Province of New Brunswick

Although the letter indicates ‘lack of work’ while at the same time advising the employee that they are ‘Surplus status with a GRJO’ (i.e. there is an assertion made that they will receive alternate employment in the core public administration) may seem contradictory yet it is legally acceptable.   As such a letter indicates, the employee will not be needed in the current position beyond the date outlined however the employer has made a guarantee that another, different job will be found for them which meets the criteria of a Reasonable Job Offer (“RJO”). The employee will continue to be paid until an RJO has been secured. The employee may be doing other duties (rather than their current duties) but they will continue to be paid. Lack of work in the employee’s current role does not translate to their being a lack of work everywhere else within the core public administration.

What if I receive a GRJO at another location?

If necessary, your home department must relocate you and pay associated costs such as travel for job interviews.  Although the employer must first try to find you a position within your headquarters area (within 40km), a relocated position can be considered “reasonable” if nothing in your area is available.  In this case, you will have to relocate.  If you refuse a reasonable job offer, you can be laid off.

Information is available on Reasonable Job Offers

Relocations in this case are considered employer-requested and therefore the employer pays the costs for relocation.  Information on Employer requested relocation is available at the National Joint Council website.


What happens if the GRJO is for a lower level position?

Surplus employees and laid-off persons appointed to lower-level positions under work force adjustment agreements have their original salary protected, in accordance with their Collective Agreements. As such, the salary of the appointee is protected until such time as that person is appointed to a position with a salary equivalent to the maximum rate of pay of his or her previous substantive position, or until the person refuses an offer of appointment with a salary equivalent to the maximum for the former group and level.  Information on appointment to lower level positions and salary protection is in Part V of the WFA Appendix of your collective agreement.


What happens if I refuse a GRJO?

As a surplus employee, if you receive a job offer that is considered to be a GRJO under the terms of the collective agreement, you may be laid off if you refuse the offer. You are, however, entitled to a minimum six-month surplus period before you can be laid off. You will be given written lay-off notice one month before lay-off occurs.

If you refuse a GRJO after the initial six months of your surplus period, you will immediately be given written lay-off notice, one month before being laid off.

Once you are laid off, you are then on layoff priority for one year.  You are not paid during this time, but are on the priority list for jobs within the public service at your level.

Until your lay-off date, you retain surplus priority and will continue to be referred for positions in the in the public service. It is important to discuss any job offers you receive with your human resources advisor, so that you may give careful consideration to the offers and any possible implications of refusing them.

Please see the PSAC’s Workforce Adjustment Guide. (pdf document)


I have received a Reasonable Job Offer (“RJO”). How much time do I have to consider the offer?

When an employee receives an offer of a specific job that meets the criteria for RJO, generally, they usually only have about 5 days to accept or reject it. There is nothing in the collective agreement that speaks to this point however Management should give them a reasonable amount of time to come to a decision.

Retraining

Do I qualify for retraining?

Under the WFA Appendix, retraining provisions apply to the following employees:

  • Affected employees
  • Surplus employees
  • Laid off persons

On the job training or other training intended to enable affected employees, surplus employees and laid-off persons to qualify for known or anticipated vacancies within the federal public service. Certain employees can be eligible for retraining provided thatretraining is needed to:

  • facilitate the appointment of the individual to a specific, vacant position.
  • the individual meets the minimum requirements set out in the relevant Qualification Standard for appointment to the group concerned and there are no other available persons with a priority who qualify for the position.

For more information, refer to Part IV of the Workforce Adjustment Appendix in your collective agreement.


I am a surplus employee. Can I be retrained for a position at a higher pay grade?

The WFAA says that:

“Retraining is on-the-job training or other training intended to enable affected employees, surplus employees and laid-off persons to qualify for known or anticipated vacancies within the Core Public Administration”

If you are an affected employee, a surplus employee or a laid off employee you can be retrained if it assists in maximizing employment.

As per the terms of the Workforce Adjustment Appendix (“WFAA”) – if there is a pay differential of more than 6% between the two levels (i.e. the difference in pay between the employees’ current position and the position at the higher pay grade) would qualify any such appointment as a promotion. Therefore, the Employer is not obligated to provide retraining related to such a situation.

See the WFAA, Section 6.

If there was a huge demand and a lot of vacancies for higher level roles, the Employer could provide the employees at the lower pay grade the required retraining and then run the competition (provided there were no applicable employees at the higher pay grade) but they are not obliged to do so.

Relocation/workplace closure/transfer of work

I received a letter telling me that I am going through a relocation of work, what happens if I refuse to relocate? What are my options?

If you receive a letter telling you that your position will be relocating and the new location is more than 40 km, you have six months to advise your employer in writing whether or not it is your intention to move. If you refuse, you become a surplus employee and this initiates another WFA process. The employer will send you another notification of WFA status and there are 2 possibilities:

  1. The employer sends you a letter informing you that you are surplus with a GRJO.  This means that the employer must provide you with at least one Reasonable Job Offer (“RJO”).  Note that the employer must first search within your preferred location; however, if there are no positions within your preferred location, you could be offered a RJO at the relocated workplace (same as above). If you refuse a RJO, you will be laid-off, but no sooner than 6 months from your surplus date as per the WFA Appendix.
  2. The employer sends you a letter informing you that you are an Opting employee without GRJO. You will have to choose which option (A, B or C) you want to take, in accordance with the WFA Appendix.

Additional information is available on the PSAC Web site on Relocation of Work Unit(s).

Alternation

I am currently on a Leave without Pay (“LWOP”). Can I volunteer to alternate?

An employee on a LWOP may be an alternate only if that employee has a position to offer.  In other words, if the position has been staffed indeterminately in the employee’s absence for more than one year, the employee may not volunteer to alternate. The one year’s leave must not consist of periods of different types of leave since they cannot be combined for the calculation of a one-year period. A year leave’s calculation must include the same type of leave (i.e. 6 months of Disability Leave and 6 months of Personal Leave would not total one year leave). Therefore the employee on the LWOP 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.


Can the Employer refuse to allow an employee to volunteer to alternate?

Managers cannot refuse to allow an employee to volunteer to alternate provided they are not on leave with its attached criteria (see question below). If the employer has maintained that they have the right to refuse a non affected employee the right to volunteer for an alternation in an arbitrary way, this could be an incorrect interpretation of the Collective Agreement. The employee would then discuss the facts of the case with their component and potentially proceed with an individual grievance action.

See Article 6.2.1 and 6.2.4 of the Workforce Adjustment Appendix.

On the other hand, the Employer can refuse a particular alternation arrangement that the employee may wish to participate in based on whether the “opting employee” would “result in retention of the skills required to meet the ongoing needs of the position in the Core Public Administration”. If the alternation request is denied, the employee who is not affected in this case can continue to volunteer if the first match is found by the employer not to qualify for legitimate skills based reasons. The opting employee who wishes to take the non affected employee’s place must fulfill certain criteria-please see the question on Alternation in the Q & A Section. The PSAC website also has a Q&A on alternation

Grievance/Recourse Process

Can I grieve my surplus notification?

A grievance under the collective agreement would not normally be available in this circumstance.  However, a Public Service Staffing Tribunal complaint may be made depending on the facts of the situation.  Under Section 65 of the PSEA, recourse to the Public Service Staffing Tribunal is available when some, but not all, the employees in part of the organization are informed that they will be laid off. At that point, any employee selected for lay-off may make a complaint to the Public Service Staffing Tribunal (“PSST”) for their selection constituted an abuse of authority.

There is no PSST recourse against: the decision to layoff employees, the part of the organization from which the layoffs occur and the number of employees to be laid off.


I feel that the SERLO process was not undertaken fairly. Can I file a grievance?

A complaint can be filed with the PSST if there was abuse of authority in the application of merit.  This is only with respect to how the employer assessed the merit of those employees who are in the affected area.  There is no recourse under the PSEA for the “area of selection” or affected area in these cases.

Please see the PSAC website for more information on the Workforce Adjustment and Merit.

Everyone at my job level in my group received an Affected notice and we were told that three of our positions were to be eliminated. No one volunteered to leave and yet Management has advised three of my Affected colleagues that their status has changed to ‘Opting’ although they did not undertake the SERLO process. Can I file a grievance?

On the other hand, everyone at my job level in my office received an Affected notice as several positions were to be eliminated.  Although Management was supposed to put all Affected employees through the SERLO process (no one volunteered to leave), I was excluded from this process. Can I file a grievance?

If the entire part of the organization is being laid off, no SERLO process is necessary. However, in a situation whereby not everyone in an identified part of the organization is being laid off, Section 64 (1) of the Public Service Employment Act regulations (“PSEA”) mandates that a SERLO process must be undertaken. Therefore, if the Employer has not completed a SERLO process as required in the above situations, the PSEA Section 65(1) establishes a layoff process whereby such actions may constitute an abuse of authority. In these cases, a PSST complaint may be filed (not a grievance). In the event a complaint is filed, the complainant must prove that there was an “abuse of authority” in the application of merit.

All complaints must be filed within 15 calendar days following the date on which the employee who is complaining received notice of the appointment, proposed appointment, revocation or lay-off that is the subject of the complaint or, in the case of a public notice, 15 days after the date of the notice [s. 10 of the Public Service Staffing Tribunal Regulations].

Information on Making a Complaint is available on the PSST website.

Please contact your Local or your CEIU Regional office for any queries related to filing a grievance or complaint.

CEIU-SEIC

Search This Website

The Personal