Staffing Recourse Policy

Annex A:

Staffing Recourse Process - Phase 1

Staffing Recourse Process - Phase 2

1. Statutory Context

1.1 Under subsection 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.

2. Effective Date

2.1 This amended Staffing Recourse Policy takes effect December 1, 2010 and revokes the previous Staffing Recourse Policy, amended June 30, 2010.

3. Transition Measures

3.1 Any staffing recourse process initiated prior to December 1, 2010 and not resolved will continue in accordance with the previous Staffing Recourse Policy, amended June 30, 2010.

4. Definitions

4.1 "Applicant"
In the context of the Staffing Recourse Policy, an applicant is an individual who submitted an application for a staffing process with solicitation of applications. "Applicant" does not include an individual whose application is eliminated from the staffing process as being untimely or from outside of the area of selection, or any individual whose application is withdrawn from the staffing process.

4.2 "Area of Notification"
is that part of the CFIA, as determined by the delegated manager, where employees are potentially most affected by a 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.

4.3 "Delegated manager"
In the context of the Staffing Recourse Policy, the delegated manager is the manager with the delegated authority to conduct the staffing process or make the staffing decision. In the case of an internal collective staffing process (i.e., a staffing process initiated for more than one CFIA manager):

  1. one of the managers conducting the staffing process will be designated as the delegated manager to provide staffing recourse for establishment of the eligibility list or staffing pool; and
  2. each manager making an appointment from the staffing pool will be the delegated manager to provide staffing recourse for that appointment.

4.4 Other definitions to be used in the interpretation of this Policy are found in the CFIA Staffing Glossary.

5. Policy Statement

5.1 The CFIA recognizes the importance of safeguarding the integrity of its staffing system through:

  1. the identification of staffing processes and decisions that do not respect the CFIA's statutory obligations and/or staffing policies; and/or that reflect an unreasonable or arbitrary application of the staffing values; and
  2. the implementation of corrective measures that the CFIA deems appropriate to address such staffing processes or decisions.

5.2 The CFIA strongly encourages and supports informal means of resolving staffing-related concerns through open communication and discussion. The CFIA also provides a formal staffing recourse process, established by this Policy.

5.3 Persons pursuing staffing recourse in accordance with this Policy will be protected from reprisal.

6. Informal Resolution

6.1 At any stage in a staffing process, an individual may raise his/her concerns informally to the responsible manager. During a staffing recourse process, informal resolution can be proposed by the complainant or a participating manager. Informal resolution is an opportunity to discuss and resolve issues outside of a formal staffing recourse process and may include discussion of other related matters not specifically restricted to the staffing process or decision in question.

6.2 Informal resolution will be conducted on a schedule and in a form agreeable to the parties, for example face to face meeting or teleconference.

6.3 Informal resolution may include:

  1. a discussion of the individual's concerns;
  2. sharing of information pertaining to the individual's assessment, if applicable;
  3. sharing of information regarding the staffing process or decision in question, which could include non-personal information pertaining to other candidates, if relevant to the individual's concerns;
  4. the identification and implementation of measures to resolve the concerns raised during informal resolution.

7. Application

7.1 Staffing With Solicitation of Applications

7.1.1 Staffing recourse is not available for:

  1. staffing processes for positions in the Executive (EX) group;
  2. open external staffing processes (open to the general public);
  3. staffing processes initiated solely for one or more of the following purposes:
    • transfers;
    • assignments;
    • emergency term appointments;
    • as required term appointments;
    • acting appointments of four months or less.

7.1.2 With the above exceptions, staffing recourse is available to applicants as follows:

  1. For staffing processes where an eligibility list is established, staffing recourse is available to all applicants when the eligibility list is established. There is no further staffing recourse available with respect to appointments or assignments from the eligibility list.
  2. For staffing processes where a CFIA staffing pool or inventory is established, staffing recourse is available as follows:
    1. When the pool is established staffing recourse is available to all applicants with respect to establishment of the pool and assessment completed to that point.
    2. For an inventory process, staffing recourse is available to applicants when the decision is taken regarding their entry into the inventory. Recourse is available with respect to this decision and the assessment completed to that point.
    3. When the pool or inventory is used for an appointment other than those excluded under 7.1.1 (c), staffing recourse is available to all applicants in the pool or inventory who are subject to additional assessment for the appointment. Recourse is available only with respect to the additional assessment and may not question aspects of the staffing process that were previously subject to recourse.

7.1.3 When CFIA participates in a closed external interdepartmental collective staffing process:

  1. Staffing recourse is not available:
    1. with regard to the establishment of the staffing pool;
    2. when the staffing pool is used for appointments or assignments excluded from recourse under 7.1.1 (c).
  2. When candidates are referred to the CFIA from the staffing pool for consideration for appointments other than those excluded from recourse under 7.1.1 (c), staffing recourse is available to candidates subject to additional assessment by the CFIA but not offered the appointment. Complaints may only address the additional assessment used by the CFIA as the basis for the appointment.

7.2 Staffing Without Solicitation of Applications

7.2.1 Staffing recourse is available to CFIA employees within the area of notification, with the exception of the following staffing actions, for which staffing recourse is not available:

  1. appointments to the Executive (EX) Group;
  2. appointments resulting from a statutory obligation;
  3. transfers to or within the CFIA;
  4. assignments to or within the CFIA;
  5. extensions of term appointments;
  6. emergency term appointments;
  7. as required term appointments;
  8. acting appointments for a period of four months or less;
  9. extensions of acting appointments that were previously subject to staffing recourse;
  10. the appointment of an individual resulting from his/her priority status;
  11. alternations of CFIA employees under employment transition provisions, or the placement of affected CFIA employees to avoid surplus situations;
  12. appointments within and graduate appointments from approved CFIA developmental programs, where such appointments are made in accordance with the requirements of the developmental program;
  13. the appointment of an employee to his/her reclassified position after a classification decision has determined the position is reclassified and not a new position;
  14. the appointment of an SE-RES employee to his/her reclassified position as a result of an approved application for promotion;
  15. appointments to student placements;
  16. disciplinary demotions;
  17. non-disciplinary demotions undertaken in accordance with the CFIA Non-Disciplinary Demotion or Termination for Cause Policy;
  18. non-discretionary appointments to implement a decision or settlement from another form of recourse.

7.3 Corrective Measures

7.3.1 Corrective measures arising from a staffing recourse process, staffing related grievance or the informal resolution of a staffing recourse process or staffing related grievance are not subject to staffing recourse.

7.4 Eligibility for Staffing Recourse or Grievance

7.4.1 A CFIA employee to whom recourse is available who submits a Request for Decision Review - PDF (646 kb) 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.

7.4.2 A CFIA employee who files a grievance with respect to a staffing process or decision may not pursue recourse under this Policy against the same staffing process or decision.

8. Grounds for Staffing Recourse

8.1 Any person to whom staffing recourse is available may pursue recourse under this Policy based on one or more of the following grounds:

  1. The staffing process or decision did not respect:
    • CFIA statutory obligations with regard to staffing; and/or
    • CFIA staffing policies; and/or
  2. The application of the staffing values in the staffing process or decision was unreasonable or arbitrary.

9. Notification of Staffing Process or Decision

9.1 When an appointment is made from an internal or closed external staffing pool or inventory, the delegated manager will notify the individuals in that pool or inventory of the appointment and the criteria used to make the appointment. When an appointment without the solicitation of applications is made, the delegated manager will notify those individuals within the area of notification. Notification may be accomplished through the most appropriate form(s), including display of a written notice, written memo, e-mail, or website posting.

9.2 The delegated manager must determine a reasonable time period for submission of Requests for Decision Review and communicate this time period, without delay, to individuals to whom staffing recourse is available.

9.3 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 to stay informed of staffing decisions.

10. Time Limits

10.1 Time limits under this Policy may be extended by written agreement of the parties involved.

10.2 For purposes of this recourse process, a "day" is a calendar day, excluding Saturdays, Sundays and designated paid holidays. A time limit defined as "within" a number of days excludes the day the event occurred that initiates the time limit and expires at the end of the final counted day.

10.3 Documents required in a staffing recourse process may be issued by the following methods, with the date of issue and the date of receipt of each document established as follows:

  1. mail - the date of issue is the date of postmark and the date of receipt is five (5) days from the date of postmark;
  2. e-mail or facsimile transmittal - the date of issue and the date of receipt are the electronic date of issue;
  3. hand delivery or CFIA internal mail - the date of issue and the date of receipt is established by the dated signature of the intended recipient; or
  4. courier or messenger service - the date of issue and the date of receipt is the bill of lading date.

11. Discontinuance of a Staffing Recourse Process

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

  1. the complainant withdraws the complaint by written notice to the responsible manager;
  2. the complaint has been resolved through informal resolution and the parties have signed a memorandum of settlement;
  3. the staffing process with the solicitation of applications that is the subject of the staffing complaint is cancelled prior to any appointments being made; or
  4. an appointment made without the solicitation of applications is cancelled, or will not take effect.

11.2 The responsible manager will notify the complainant, in writing, of the discontinuance of the staffing recourse process for any of the conditions listed above.

11.3 A staffing recourse process will be discontinued at the end of Phase 1, and may not proceed to Phase 2, when:

  1. the staffing recourse process concerns an appointment made without the solicitation of applications, and;
  2. the appointment in question ends prior to issuance of the Staffing Recourse Decision.

12. Termination of a Staffing Recourse Process

12.1 A staffing recourse process may be terminated by the Level 3 manager if:

  1. the complainant fails to cooperate in the staffing recourse process unless due to circumstances beyond his/her control or reasons approved by management; or
  2. the final Statement of Complaint fails to provide allegations on allowable grounds.

12.2 For a staffing recourse process in Phase 1, the responsible manager will provide a written recommendation for termination to the Level 3 manager, copied to the complainant, stating the reasons for such recommendation.

12.3 For a staffing recourse process in Phase 2, the Level 3 manager will notify the complainant of his/her intention to terminate the staffing recourse process, stating the reasons for such intention.

12.4 In either case described above, the complainant may issue a written response within five (5) days from the date of receipt of the notification, addressing only the issue of whether or not the staffing recourse process should be terminated.

12.5 The Level 3 manager will issue his/her decision regarding termination of the staffing recourse process within fifteen (15) days of the recommendation or notification of intent to terminate. The decision will include reasons for termination or continuance of the staffing recourse process.

13. Assistance or Representation

13.1 Throughout the formal recourse process, a complainant may, at his/her own expense, be assisted or represented by a bargaining agent representative or another individual of the complainant's choosing.

13.2 Throughout the formal recourse process, the responsible manager may be assisted by a member of the Human Resources Branch and/or by any other person(s) of his/her choosing.

14. Accountability

14.1 Roles and responsibilities are as indicated throughout this Policy and its Annex.

14.2 In cases where the delegated manager is a Level 3 manager, his/her Level 2 manager will fulfill the Level 3 manager's role under this Policy.

14.3 In cases where the delegated manager reports directly to the President, the President may direct the Executive Vice President, or a Level 2 manager not involved in the staffing recourse case in question, to fulfill the Level 3 manager's role under this Policy.

15. No Precedent

15.1 Staffing recourse decisions will not set a precedent for other CFIA staffing recourse decisions.

Annex A:

Staffing Recourse Process - Phase 1

A1.1 Step 1.1: Request for Decision Review

A1.1.1 An individual to whom staffing recourse is available must issue a written Request for Decision Review - PDF (646 kb) to the delegated manager within the time period established by the delegated manager.

A1.1.2 The objectives of Decision Review are to:

  1. inform the delegated manager of concerns related to the staffing process or decision;
  2. allow the individual raising the concerns to request redress without committing to a formal complaint;
  3. allow the exchange of information relevant to the concerns;
  4. allow for full discussion of the concerns;
  5. allow the delegated manager to review the decision or action giving rise to the concerns;
  6. allow the delegated manager to amend his/her decision or take corrective measures to resolve the concerns.

A1.1.3 The delegated manager must, within 10 days following receipt of the Request for Decision Review, issue a response to the individual informing them of what action, if any, will be taken.

A1.2 Step 1.2: Statement of Complaint

A1.2.1 If the parties fail to resolve the issues during Decision Review or if the delegated manager fails to initiate Decision Review within the allowed time period, without sufficient reason, the individual may issue a Statement of Complaint - PDF (660 kb) to the delegated manager and the Level 4 manager, no later than 5 days following receipt of the Decision Review response or 5 days following the end of the period for Decision Review, as the case may be.

A1.2.2 If the delegated manager is a Level 4 manager or higher, the Statement of Complaint is issued only to the delegated manager.

A1.3 Step 1.3: Disclosure of Information

A1.3.1 Disclosure consists of an exchange of relevant information, in order to achieve a mutual understanding of the staffing process or decision in question and the complainant's concerns. Disclosure consists of both:

  1. the communication of relevant information about the staffing process or decision; and
  2. the clarification of allegations by the complainant.

A1.3.2 The Level 4 manager will initiate Disclosure of Information in cases where:

  1. the Statement of Complaint requests disclosure of information additional to that already provided;
  2. the Level 4 manager wishes clarification of the complaint and/or

considers that the Statement of Complaint fails to provide allegations based on allowable grounds.

A1.3.3 Where additional information or clarification is not requested, the complaint will proceed to Step 1.4 of the recourse process.

A1.3.4 Exchange of Information

Based on the Statement of Complaint, the Level 4 manager will provide the complainant with access to any additional information relevant to the complaint in accordance with CFIA's Guidelines on Releasing Staffing Information. The Level 4 manager may request clarification of the complaint and will also advise the complainant if he/she considers that the Statement of Complaint fails to provide allegations based on allowable grounds. This exchange will be completed within 10 days of the receipt of the Statement of Complaint.

A1.3.5 Amended Statement of Complaint

Within 5 days after the exchange of information noted above, the complainant may issue an amended Statement of Complaint, supporting and/or clarifying the original allegations, to the Level 4 manager. The complainant may not submit additional or new allegations unless they are based on significant new information that was not known when the initial Statement of Complaint was issued.

A1.4 Step 1.4: Discussion of the Complaint

A1.4.1 Discussion of the complaint will be completed within 10 days following the completion of Disclosure of Information. Discussion of the Complaint may involve a series of discussions and can take many forms, such as teleconferences, exchange of written material, emails, 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.

A1.4.2 Parties may agree to waive discussion of the complaint if they are satisfied that they have presented their cases through previous steps in the recourse process.

A1.5 Step 1.5: Staffing Recourse Decision

A1.5.1 Within 10 days of the completion of Discussion of the Complaint, the Level 4 manager will issue the Staffing Recourse Decision, in writing, to the complainant. The Staffing Recourse Decision should confirm any understanding reached during discussion and/or detail any corrective measures, if applicable, that will be taken as a result of the complaint.

A1.5.2 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.

Staffing Recourse Process - Phase 2

A2.1 Step 2.1: Independent Third Party Review of the Complaint

A2.1.1 The staffing recourse process will advance to Independent Third Party (ITP) Review of the Complaint if:

  1. within 10 days from the date of receipt of the Level 4 manager's Staffing Recourse Decision, the complainant issues a Request for Independent Third Party Review to the Level 3 manager stating that he/she does not consider the complaint resolved by that staffing recourse decision and requests an Independent Third Party review of some or all of the allegations in the Statement of Complaint; or
  2. the complainant alleges that the Level 4 manager has failed to cooperate in the staffing recourse process, by refusing to participate in the process or by failing to observe the time limits established by this Policy or agreed upon with the complainant, unless due to circumstances beyond his/her control. The Level 3 manager will determine whether the Level 4 manager has failed to cooperate and he/she will either accept the request for ITP review or refer the matter back to the Level 4 manager to complete Phase 1 of the process.

A2.1.2 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.

A2.1.3 The purpose of the ITP review is to examine the allegations brought forward in the complainant's request for ITP review to determine if, in regard to the complainant's allegations:

  1. the staffing process or decision in question did not respect:
    • CFIA statutory obligations with regard to staffing; and/or
    • CFIA staffing policies; and/or
  2. the application of the staffing values in the staffing process or decision in question was unreasonable or arbitrary.

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.

A2.1.4 The ITP may conduct the review through various means, as deemed appropriate by the ITP, including submissions of written material, telephone or face-to-face interviews, or meetings at which both parties are present. Both parties must be allowed to present their case and respond to the case presented by the other party. The ITP will not function as a mediator or facilitator.

A2.1.5 Within 60 days from the date the Level 3 manager obtains the services of an ITP, the ITP will review the complaint and issue his/her findings, in writing, to the complainant and the Level 3 manager. The ITP findings will state whether each of the allegations is founded or unfounded and will include reasons.

A2.2 Step 2.2: Corrective Measures

A2.2 In cases where some or all of the allegations are deemed by the ITP to be founded, within 30 days from the date of receipt of the ITP findings the Level 3 manager will issue written notification of any corrective measures to be taken, to the complainant and the responsible manager.

A2.3 Step 2.3: Referral to President

A2.3.1 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, or considers that the ITP has made findings on matters not properly before him/her or has failed to address matters properly before him/her.

A2.3.2 In such cases, the Level 3 manager may, within 30 days from the date of receipt of the ITP findings, make recommendations to the President to review the ITP findings. The Level 3 manager will issue written notification to the complainant, within 30 days from the date of receipt of the ITP findings, that the ITP findings have been referred to the President for review.

A2.3.3 If requested, the President may review the ITP findings. He/she may, through written notification to the complainant and Level 3 manager:

  1. refer the matter, in whole or in part, back to the same or to a different ITP; or
  2. issue the final staffing recourse decision.

A2.3.4 If issuing the final staffing recourse decision, the President may direct any corrective measures within his/her authority that he/she deems appropriate, or may direct the Level 3 manager to determine appropriate corrective measures.