Options when performance does not improve

In Canadian Labour Arbitration, Brown and Beatty state that an employer can exercise its authority to terminate employment for non-culpable deficient work performance "only where it has established that the employee's shortcomings are such to undermine the employment relationship and when it is also established that the situation is unlikely to improve." Once you have reached this stage, it is time to begin looking at options.

Assignment

Giving new functions to an employee for a temporary period at the same group and level. This option would be best used when:

• A more suitable permanent position is not available;
• Both you and the employee agree that an employment change is needed and that the employee would do better;
• The employee has marketable skills and abilities; and
• The employee is temporarily unable to do his or her current job.

Pros:

• Clean chance, new supervisor and new group of co-workers;
• Can often be quickly arranged; and
• Provides an option for a temporary inability to perform functions.

Cons:

• Inappropriate if it is only an attempt for the existing supervisor to avoid dealing with the problem;
• The employee will return when the temporary assignment is over;
• The employee's substantive position cannot be filled until a permanent solution is found; and
• You must continue to search for a permanent solution.

Secondment

An action between departments to give new functions to an employee for a temporary period of time at the same group and level. This option is best used when:

• Your department or interdepartmental network can identify a better opportunity for the employee;
• More distance between the employee and the work situation would be more conducive to a success story for the employee; and
• Can offer the employee a career change.

Pros:

• Provides greater physical distance from the current position;
• Provides an option for a temporary inability to perform regular functions;
• Employee becomes marketable for a permanent position in two organizations; and
• May lead to a permanent situation acceptable to all.

Cons:

• Same as those for assignment.

Deployment

A deployment is an action taken to permanently move a person to duties, either on a term or indeterminate basis classified in the same group and level or lower, in or in between departments. These options would be used when:

• The employee's abilities, skills and knowledge can be utilized in an existing vacant position; and
• The employee had exhibited satisfactory performance in previous positions and those types of positions are available.

Pros:

• Permanent solution; and
• Employee's substantive position can be staffed on a permanent basis.

Cons:

• May be difficult to identify the right type of position.

Voluntary demotion

Transfer to a lower level position with the employee's consent.

Pros:

• Employee paves the way for a non-promotional appointment;
• Employee will rarely contest anything in the process if he or she has initiated it; and
• Employee's substantive position can be filled on a permanent basis.

Cons:

• May have trouble finding suitable position.

Medical retirement

Resignation submitted for medical reasons and for which there are particular post-employment benefits e.g. medical pension based on the employee's years of service and without penalty, even if the employee does not meet 55 and 30 under the PSSA. This can occur if:

• The employee consults his or her own physician to establish a case for medical retirement; and
• Health Canada needs to support this decision and certifies that the employee is no longer employable in any capacity in the public service.

Pros:

• Permanent solution to the problem;
• Pension not reduced;
• Preserves the dignity of the employee; and
• Employee's substantive position can be filled on a permanent basis.

Cons:

• Medical pension is not easy to obtain. The employee has to understand that Health Canada has final say and not the department.

Resignation

This option is fairly straightforward. However, the employee could file a grievance arguing that the resignation was submitted under duress. In this case, the onus rests with the employee to establish that what appears to be a resignation is in fact an improper termination. In Rinke 166-32-32344 to 32346, the adjudicator set out some principles followed by adjudicators in other similar cases. He recognized that the facts had to be examined in order to determine whether there was a subjective intent to resign and an objective act.

Retirement

This option is also fairly straightforward.