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Staffing Recourse Policy

Note: this policy is no longer in effect

(Amended June 30, 2010)

Staffing Recourse Process - Phase 1

Staffing Recourse Process - Phase 2


Statutory Context

Under section 13(1) of the Canadian Food Inspection Agency Act, the President has the authority to appoint the employees of the Agency, and therefore to establish a formal staffing recourse process by which the President, or his/her delegates, will receive and respond to complaints regarding the staffing processes and decisions of the Agency. The authority to receive and respond to complaints within the CFIA's staffing recourse process has been delegated to other levels of management in the CFIA's Human Resources Delegation of Authorities.

Effective Date

This amended Staffing Recourse Policy takes effect June 30, 2010 and revokes the previous Staffing Recourse Policy, amended June 23, 2008.

Transition Measures

For open external recruitment processes with solicitation of applications that are initiated prior to June 30, 2010:

  • decisions or actions taken prior to June 30, 2010 are subject to staffing recourse in accordance with the previous Staffing Recourse Policy, amended June 23, 2008; and
  • decisions or actions taken on or after June 30, 2010 are not subject to staffing recourse.

Policy

The CFIA's staffing processes and decisions will respect the CFIA's statutory obligations, staffing policies and staffing values.

The CFIA encourages and supports informal means of resolving staffing-related concerns through open communication and discussion.

Where informal means do not resolve staffing-related concerns, an individual who considers that a staffing process or decision to which this policy applies did not respect the CFIA's statutory obligations and/or staffing policies and/or staffing values, may pursue recourse in accordance with the process established by the CFIA.

A CFIA employee who presents a Statement of Complaint with respect to a staffing process or decision may not file a grievance against the same staffing process or decision, in accordance with Section 208 (5) of the Public Service Labour Relations Act.

A CFIA employee who files a grievance against a staffing process or decision may not, at any time, present a Statement of Complaint under the Staffing Recourse Policy, with respect to the same staffing process or decision. Any concerns that he or she may have with respect to that staffing process or decision will be addressed exclusively through the grievance procedure.

Persons pursuing staffing recourse in accordance with the established Agency process will be protected from reprisal.

Application

Staffing Recourse is available to:

  • applicants in internal selection processes which are productive;
  • applicants in closed external recruitment processes which are productive;
  • CFIA employees within the area of notification for staffing decisions made without the solicitation of applications;
  • applicants in internal or closed external inventory processes whose applications are not accepted into such inventories; and
  • Applicants from internal or closed external inventory processes whose applications are retained in such inventories and are subsequently considered in a further staffing process or decision. (These individuals may pursue recourse with regards to the further staffing process or decision.)

Staffing Recourse is not available in the case of:

  • open external recruitment processes with the solicitation of applications;
  • all non-productive selection processes;
  • staffing decisions which have been rescinded;
  • staffing processes and decisions related to the Executive (EX) Group;
  • the appointment of an employee in the Research Scientist (SE-RES) Sub-Group to his or her reclassified position, as a result of his or her approved application for promotion;
  • extensions of term employment;
  • emergency term appointments;
  • as required term appointments;
  • acting appointments for periods less than four months;
  • extensions of acting appointments which were previously subject to staffing recourse;
  • the appointment of an individual with a CFIA priority for appointment;
  • alternations of CFIA employees under employment transition provisions, or the placement of affected CFIA employees to avoid surplus situations;
  • student placements;
  • the demotion of an employee to a lower-level position for disciplinary reasons;
  • movement within approved CFIA developmental programs
  • graduate appointments made in accordance with the provisions of approved CFIA developmental programs; and
  • staffing processes or decisions where a CFIA employee has chosen to file a grievance.

When staffing recourse is unavailable, individuals may still discuss their concerns with CFIA management.

Definitions

"Applicant"
an individual who applies and/or participates in a selection process in which applications are solicited.

"Approved CFIA developmental program"
a developmental program that meets CFIA-established criteria.

"Area of Notification"
as determined by the delegated manager, an "area of notification" is that part of the CFIA where employees are potentially most affected by a staffing process conducted, or staffing decision made, without the solicitation of applications.

"As Required Term Appointment"
An "as required term appointment" is the appointment of an individual and any subsequent contract extensions, to a position for which the hours of work are sporadic and irregular. These individuals are called-in to work as required. In cases where the as required term, including any contract extensions, is for a period of one year or less, the individual must work less than one-third (1/3) of the hours normally worked by a full-time employee in the same occupational group, calculated over the length of the term. Where the as required term, including any contract extensions, is for a period greater than one year from the effective date of the appointment, the total hours worked per year of employment must be less than one-third (1/3) of the hours normally worked by a full-time employee in the same occupational group for an equivalent one-year period.

"Closed external recruitment process"
a process where the area of selection is restricted to CFIA and all or part of the federal public administration (as defined by the Financial Administration Act).

"Delegated manager"
In the context of the Staffing Recourse Policy, the delegated manager is considered to be the manager with the delegated authority and accountability to conduct the staffing process or make the staffing decision.

"Emergency Term Appointment"
The appointment of an individual and any subsequent contract extensions, made in response to a declared emergency (as defined in the CFIA Emergency Response Plan). An emergency term appointment must not go beyond the duration of the declared emergency situation and is limited to a total period of employment of less than four (4) months. Emergency term appointments are exempt from staffing recourse. Any subsequent extension of the individual's employment beyond the four (4) months limit is considered a new appointment and is subject to recourse under the CFIA Staffing Recourse Policy.

"External recruitment process"
a process where the area of selection includes individuals outside CFIA. "External recruitment process" includes two types: "closed external recruitment processes" and "open external recruitment processes".

"Graduate appointment"
an appointment, made as a result of a staffing decision made without the solicitation of applications, following successful completion of an approved CFIA developmental program. Please note that specific criteria regarding graduate appointments may be particular to a given developmental program.

"Internal selection process"
a process where the area of selection is restricted to all or a part of the CFIA.

"Inventory process"
a recruitment process, internal, closed or open external, used to establish or expand a pool of individuals for potential consideration in CFIA staffing.

"Level 3 manager"
In the context of the Staffing Recourse Policy, the Level 3 Manager is the delegated manager's Level 3 Manager. CFIA's "Human Resources Delegation of Authorities" defines who is considered to be a Level 3 Manager. In staffing recourse cases where the delegated manager is a Level 3 Manager or higher, the manager to whom the delegated manager reports will fulfill the role of Level 3 Manager for purposes of the staffing recourse process.

"Non-productive process"
a selection, recruitment or inventory process which fails to identify any individual who meets the established requirements.

* "Open external recruitment process"
a process where the area of selection extends outside the federal public administration (as defined by the Financial Administration Act).

"Productive process"
a selection, recruitment or inventory process which identifies one or more individuals who meet the established requirements.

"Student Placement"
Is when a student is hired in accordance with the Student Employment Policy in an unclassified position and is paid in accordance with the pay rates for students.

The Basis for Resolving Staffing Complaints

In reviewing a staffing complaint, whether through informal discussions or through the formal staffing recourse process, the particular aspect of the staffing process or decision in question must be reviewed against a consistent standard. This standard is created by the combination of:

  • CFIA's statutory obligations with regards to staffing;
  • CFIA staffing policies; and
  • CFIA staffing values.

Time Limits

The various steps of the staffing recourse process have prescribed time limits. However, any such time limit may be shortened or extended in advance of the expiry of the time limit, by written agreement of the individual presenting the complaint ("the complainant") and the CFIA manager involved in that step in the process.

For purposes of the staffing recourse process, a "day" is considered to be a calendar day, excluding Saturdays, Sundays and designated paid holidays.

The timeliness of presentation will be determined by:

  • postmarks for any documents sent by mail;
  • electronic dates of issue for e-mail or facsimile transmittal of documents;
  • dated signature from the intended recipient for documents delivered by hand or through CFIA internal mail; or
  • the bill of lading date for documents delivered by a courier or messenger service.

Termination of a Staffing Recourse Process

A staffing recourse process will be terminated in the event that any of the following conditions are met:

  • the complainant withdraws the complaint by written notice to the delegated manager or Level 3 manager;
  • the staffing decision giving rise to the complaint has been rescinded;
  • the Statement of Complaint fails to provide clear and complete information following the Disclosure of Information (1.2); or
  • the complainant fails to cooperate in the staffing recourse process, unless due to circumstances beyond his/her control or reasons approved by management (e.g., approved sick leave), by:

The Level 3 Manager has the authority to terminate a staffing recourse process. For a recourse process in Phase 1, the delegated manager may provide a written recommendation for termination to the Level 3 Manager. The delegated manager will notify the complainant, in writing, if the staffing recourse process is recommended for termination. Within 10 days of the presentation of a recommendation for termination, the Level 3 Manager will notify the complainant and the delegated manager, in writing, of his/her decision regarding termination of the staffing recourse process and the reasons for any such termination. Once a staffing recourse process is terminated, no further recourse with regard to that complaint is available under this policy.

If the Level 3 Manager decides that the staffing recourse process will not be terminated, he/she will inform the complainant and the delegated manager, in writing, and direct the step at which the recourse process will continue.

Final Staffing Recourse Decision

A final staffing recourse decision is subject to the following:

  • The final staffing recourse decision document is subject to the provisions of the Privacy Act and Access to Information Act.
  • The final staffing recourse decision cannot be challenged further within the Agency.
  • CFIA staffing recourse decisions will not set a precedent for other CFIA staffing recourse decisions.

Notification of the Staffing Process or Decision

Open communication regarding staffing processes and decisions is a fundamental value in the CFIA's approach to staffing. The manager with the delegated authority and accountability to conduct the staffing process or make the staffing decision ("the delegated manager") must determine a reasonable time period for presentation of complaints related to a specific staffing process or decision and communicate this time period as part of the notification of the staffing process or decision. Notification may be accomplished through the most appropriate form(s), including posting of a notice, written memo, or e-mail.

Notification must be given to those individuals to whom staffing recourse is available, as determined in the Application section of the Staffing Recourse Policy. Notification must be given to CFIA employees in the area of notification when applications are not solicited. The area of notification is that part of the CFIA, as determined by the delegated manager, where employees are potentially most affected by the staffing decision made without solicitation of applications. The delegated manager should refer to the area of selection that would have been used had applications been solicited and consider this information in establishing the area of notification.

The delegated manager is not responsible for notifying absent employees of staffing processes or decisions. Employees who are absent from their workplace for any reason, including an assignment or leave, are personally responsible for making arrangements in order to stay informed of staffing decisions.

Staffing Recourse Process - Phase 1

1.1 Presentation of a Statement of Complaint

It is expected that informal means of resolving staffing-related concerns be undertaken prior to the presentation of a Statement of Complaint, as outlined in CFIA's Staffing Recourse Guidelines on Informal Means of Addressing Staffing Concerns.

To pursue staffing recourse, an individual to whom staffing recourse is available must present a written Statement of Complaint to the delegated manager within the time period specified by the delegated manager for presentation of complaints related to the specific staffing process or decision. The Statement of Complaint, which will be used throughout the recourse process, must provide clear and complete information, including:

  • the complainant's full name;
  • the complainant's mailing address (and e-mail address, if applicable);
  • the complainant's telephone number;
  • the complainant's language of choice (i.e., English or French);
  • the name of the individual assisting the complainant (if applicable);
  • the identification number for the staffing process (if applicable), or a description of the staffing decision;
  • the specific element(s) of the staffing process or decision which raises concern(s);
  • the specific allegation(s) regarding the element(s) of concern, with an explanation of why he/she considers that the staffing process or decision did not respect the CFIA's statutory obligations and/or staffing policies and/or staffing values;
  • any specific information to which the complainant requests access (if applicable);
  • Other relevant information (if appropriate).

1.2 Disclosure of Information

Disclosure consists of an exchange of pertinent information between the delegated manager and the complainant, in order to achieve mutual understanding of the staffing process or decision in question and the complainant's concerns. Disclosure consists of both:

  • the communication of pertinent information on the staffing process or decision by the delegated manager; and
  • the clarification of allegations by the complainant.

The complainant may choose to be assisted by a bargaining agent representative or by another individual. The complainant's choice of an assisting individual will not incur costs for the CFIA, except as specified by a governing collective agreement or CFIA policy. The delegated manager may choose to be assisted by a Human Resources Advisor and/or another individual.

Based on the Statement of Complaint, the delegated manager will initiate disclosure and provide the complainant with access to pertinent information in accordance with CFIA's Staffing Guidelines on Disclosure of Staffing Information. The delegated manager will also advise the complainant of any areas of the Statement of Complaint which are unclear or incomplete. This disclosure of information will be completed within 10 days of presentation of a Statement of Complaint.

Following this 10-day period the complainant may, within 5 days, present the delegated manager with an amended Statement of Complaint, supporting the original specific allegations, i.e., why the complainant considers that the staffing process or decision did not respect the CFIA's statutory obligations and/or staffing policies and/or staffing values.

If the complainant does not present an amended Statement of Complaint during the 5-day period specified above, staffing recourse will proceed based on the original Statement of Complaint presented. Only allegations presented in the Statement of Complaint at Phase 1 may be reviewed at Phase 2 of the staffing recourse process.

1.3 Evaluation of the Statement of Complaint

Upon completion of Disclosure of Information (1.2), the delegated manager will evaluate the final Statement of Complaint, i.e., the original Statement of Complaint or the amended Statement of Complaint if one was presented at Disclosure of Information (1.2), to determine if the staffing recourse process will continue or will be recommended for termination by the Level 3 Manager. The staffing recourse process will advance to Discussion of the Complaint (1.4) if the Statement of Complaint provides clear and complete information - (a) through (j).

If the Statement of Complaint is incomplete, the staffing recourse process will be recommended for termination. The delegated manager will notify the complainant, in writing, within 5 days of the completion of disclosure (1.2), that the staffing recourse process is recommended for termination.

1.4 Discussion of the Complaint

Within 15 days following Disclosure of Information (1.2) the delegated manager and the complainant will complete discussion of the complaint. Discussion of the complaint will be considered completed when the complainant or the delegated manager informs the other party, in writing, that he/she considers the discussion to be concluded.

Discussion of the complaint may involve a series of discussions and can take many forms, such as tele-conferences, exchange of written material, e-mails, letters or face-to-face meetings. Both parties must be allowed to present their case and respond to the case which is presented by the other party. With the agreement of both parties, appropriate avenues of dispute resolution, such as mediation, may be explored with the objective of obtaining a resolution. Any costs incurred by the CFIA related to discussion of the complaint must be pre-approved by the delegated manager.

The complainant may choose to be assisted by a bargaining agent representative or by another individual. The complainant's choice of an assisting individual will not incur costs for the CFIA, except as specified by a governing collective agreement or CFIA policy. The delegated manager may choose to be assisted by a Human Resources Advisor and/or another individual.

1.5 Presentation of the Staffing Recourse Decision

Within 5 days of the conclusion of discussion the delegated manager will present the staffing recourse decision, in writing, to the complainant. The staffing recourse decision should confirm any understanding reached or detail any actions, if applicable, that will be taken as a result of the complaint. The delegated manager may take any action for which he or she has the delegated authority. The delegated manager will provide a copy of the staffing recourse decision to the delegated manager's Level 3 manager.

Unless the complainant pursues recourse to Phase 2 of the staffing recourse process, the Phase 1 staffing recourse decision will be deemed to be the final staffing recourse decision.

The complainant may not pursue recourse to Phase 2 of the staffing recourse process in cases where, prior to the delegated manager presenting the staffing recourse decision, it has been determined that:

  • the intended staffing, resulting from the staffing process or staffing decision in question, will not be proceeding; or
  • all appointments (e.g., term or acting appointments) resulting from the staffing process or staffing decision in question, have ceased.

In such cases, a staffing recourse decision at Phase 1 will be deemed to be the final staffing recourse decision.

Staffing Recourse Process - Phase 2

2.1 Presentation of a Request for Review

A written request to review the complaint may be presented to the delegated manager's Level 3 Manager. CFIA's Human Resources Delegation of Authorities defines who is considered to be a Level 3 Manager. In staffing recourse cases where the delegated manager is a Level 3 Manager or higher, the manager to whom the delegated manager reports will fulfill the role of Level 3 Manager for purposes of the staffing recourse process.

The complainant may present a request for review of the complaint if the staffing recourse process has not been terminated and:

  • the complainant does not consider the complaint resolved by the staffing recourse decision presented by the delegated manager (1.5) ; or
  • the delegated manager fails to cooperate in the staffing recourse process, unless due to circumstances beyond his/her control, by:

The request for review must be presented no later than 10 days following the Presentation of the Staffing Recourse Decision (1.5) by the delegated manager or the expiry of the above time frames. If a request for review is not presented to the Level 3 Manager within this time period, the staffing complaint will be deemed to be resolved and the Phase 1 staffing recourse decision will be deemed to be the final staffing recourse decision.

The request for review must include the final Statement of Complaint (original or as amended at 1.2), and indicate the specific allegation(s) regarding the element(s) of concern that the complainant considers not to have been resolved by Phase 1. Only allegations presented and discussed at Phase 1 may be reviewed at Phase 2 of the staffing recourse process, therefore, no new allegations may be presented in the request for review.

2.2 Mutual Resolution

The Level 3 Manager and the complainant may undertake to reach a mutually agreeable resolution of the complaint.

The complainant may choose to be assisted by a bargaining agent representative or by another individual. The complainant's choice of an assisting individual will not incur costs for the CFIA, except as specified by a governing collective agreement or CFIA policy. The delegated manager may choose to be assisted by a Human Resources Advisor and/or another individual.

If a resolution of the complaint is reached, a written resolution agreement will be signed by both the Level 3 Manager and the complainant. This resolution agreement will be deemed to be the final staffing recourse decision and the complaint will not proceed further in the staffing recourse process.

The staffing recourse process will advance to Independent Third Party (ITP) Review of the Complaint (2.3), if:

  • within 5 days of presentation of a request for review, either the Level 3 Manager or the complainant chooses not to attempt mutual resolution of the complaint; or
  • within 5 days of presentation of a request for review, a process to attempt mutual resolution of the complaint cannot be agreed upon by the Level 3 Manager and the complainant; or
  • within 20 days of presentation of a request for review, a mutual resolution of the complaint has not been reached.

2.3 Independent Third Party (ITP) Review of the Complaint

The Level 3 Manager will obtain the services of an independent third party (ITP) to review the complaint. Where no ITP roster or service provider contract is in effect, the ITP will be chosen by mutual agreement of the Level 3 Manager and the complainant. The ITP review process will be in accordance with the CFIA Staffing Recourse Guidelines on "Independent Third Party Review".

The purpose of the ITP review is to determine if the staffing process or decision in question respected the CFIA's statutory obligations, staffing policies and staffing values. The review will not reassess individual(s) considered in a staffing process or decision, direct the use of a specific method of assessment nor direct corrective measures to be taken by the CFIA.

The complainant may choose to be assisted by a bargaining agent representative or by another individual. The complainant's choice of an assisting individual will not incur costs for the CFIA, except as specified by a governing collective agreement or CFIA policy. The delegated manager may choose to be assisted by a Human Resources Advisor and/or another individual.

If, at any time during the ITP Review, mutual resolution of the complaint is agreed-upon, the ITP Review process will cease.

Within 30 days of the staffing recourse process advancing to ITP Review of the Complaint (2.3), the ITP will review the complaint and present his/her findings, in writing, to the complainant and the Level 3 manager. The ITP findings will state whether the staffing process or decision in question was found to respect CFIA's statutory obligations, staffing policies and staffing values.

The ITP findings will be deemed to be the final staffing recourse decision except in cases where the Level 3 manager considers the ITP findings to be based on errors of fact or omission.

In such cases, the Level 3 Manager may, within 10 days of the presentation of the ITP findings, make recommendations to the President to review the ITP findings. The Level 3 manager will notify the complainant, in writing, within 10 days of the presentation of the ITP findings, that the ITP findings have been referred to the President for review. The President will review the ITP findings and present the final staffing recourse decision, in writing, to the complainant and the Level 3 manager.