Federal executives say managers don’t use the power they have now to fire poor performers and changing the law to make it easier to get rid of them could backfire and breed more fear and silence in the public service.

Privy Council Clerk Michael Wernick stirred another hornet’s nest this week when he told a Senate committee that Parliament should consider changing the employment laws governing public servants so it is easier to fire employees for poor performance, mismanagement and misconduct.

Wernick’s appeal came amid the debate over who’s to blame for the Phoenix disaster that has ensued since Auditor General Michael Ferguson’s concluded it was an “incomprehensible failure” that signalled a ‘broken’ culture in the public service. Wernick, however, says firing non-performers has been an issue long before the Phoenix debacle.

The Association of Professional Executives of the Public Service of Canada (APEX) were the first to respond with a tweet that executives already have the power to fire so why “legislate what we can already do.” The public service is governed by the Financial Administration Act and the Public Service Employment Act.

This is puzzling: we have the best PS in the world. We already can fire poor performers: legislation is not required to allow us to do what we already can. In our professional, non-partisan PS, arbitrary firings would discourage providing frank and forthright advice. https://t.co/ituQt4cUQe — APEX (@APEX_GC) June 21, 2018

Michel Vermette, APEX’s chief executive officer, said the problem is the public service does a lousy job of performance management. He said making it easier to fire people could create an “arbitrariness” in management that could put a chill on the honest and fearless advice public servants are expected to provide.

“We can fire people now. We can fire them for cause and non-performance is cause, but it’s not happening because managers have to document and some don’t do it. We are just very bad at managing performance,” said Vermette.

“But the fear of arbitrary dismissal would be quite chilling. We are professional, non-partisan public servants, who are expected to offer frank and forthcoming advice, but what if the feared consequence is termination because someone didn’t like the advice you gave?”

Colleen Bauman, a labour lawyer at Goldblatt Partners agrees.

She said government should be looking at ways to “empower employees” so they speak up and tell the truth, not put their jobs at a greater risk. Such a move would feed the ‘obedient’ culture of not speaking truth to power that Ferguson flagged.

“Making it easier to terminate people in the public service will worsen the very problem they are concerned about,” she said.

“This is what the auditor general was saying. Senior public servants who should have spoken up when the political directive didn’t make sense. You give them less job protection and you will make people more fearful and afraid to criticize directives that come down from the government.“

Bauman said it’s a “huge myth” that it is nearly impossible to fire a public servant. She said the existing law makes” it easier to fire a public servant than in other unionized workplaces — as long as managers follow the process.

“There’s truly a myth out there how difficult it is to fire a public servant, but if managers don’t follow the process they don’t have the grounds.”

That means documenting employees’ performance. Appraising their work; giving them feedback and if they fall short then offering them coaching, training and time to correct or improve.

Wernick told senators the problem is the legal test to fire employees for cause. The process becomes so “long, arduous and gruelling” that many managers simply give up.

The three federal executives blamed by Ferguson for mismanaging the Phoenix pay system were not fired for the fiasco that has left thousands of public servants underpaid, overpaid or not paid at all for more than two years.

Two of the executives still work at Public Service and Procurement Canada (PSPAC) but no longer in the pay administration branch; one has retired. Marie Lemay, PSPC’s deputy minister, has said they were punished by not receiving any performance pay or bonuses for 2015-16, the year of the disastrous rollout.

Some speculate the Phoenix executives were not fired because there are no grounds for cause. They may have had glowing performance appraisals — based on the information they provided — and met all the milestones in delivering Phoenix on time and budget.

Debi Daviau, president of the Professional Institute of the Public Service of Canada, said the government has all the power it needs to fire those who “screw up as badly” as the Phoenix executives but the government simply refuses to act.

She said they could be fired now and the findings of the auditor general report used as the ‘foundation’ to fire for cause.

“They can fire them and they should,” said Daviau. “It should not have taken an auditor general’s report and to suggest the reason it got out of control, was it is too hard to fire people is utter bullshit.”

Daviau called the idea of changing the law a “weak response and highly disrespectful” to the public servants who keep doing their jobs well despite not being paid.

“Many public servants are waiting for them to be held accountable, not to hear that it is hard to fire them,” she said.

“Sounds like the clerk is defensively trying to deflect the blame for this, which may actually roll up to him.”

Vermette argues there should be more visible consequences for bad behavior so public servants and Canadians don’t think people go unpunished. The government has sanctions other than firing, such as demotions, reductions in salary and resignations that people don’t hear about.

The public service has long been criticized for doing a lousy job of managing poor performers. Over the years, critics have argued poor performance management is at the root of many problems dogging the public service, from rising costs and bad morale, to Canadians’ negative perception of the public service.

Former Treasury Board President Tony Clement took a run at cracking down on non-performers with a new ‘systemic’ way to track performance. At the time, he found it baffling that the dismissal rate for unsatisfactory performance in the private sector was between five and 10 per cent of the workforce compared to 0.06 per cent in the public service. In 2011, for example, the government sacked 54 employees for misconduct and 99 for incompetence.

It’s unclear whether Clement’s regime improved performance management. Treasury Board statistics show the number of public servants fired for misconduct nearly doubled to 92 by 2013–14 and have remained at those levels ever since. It had no statistics readily available for those terminated for mismanagement or poor performance.

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This story has been updated.