Public Service Employment Regulations (SOR/2005-334)

Marginal note:Entitlement period for existing entitlements

8.02 The entitlement period for a priority that is established under any of paragraphs 8(1)(a) to (d), as they read before the day on which this section comes into force, shall, if the period has not ended on or before the day on which this section comes into force, end on the earliest of

• (a) the day that is five years after the day on which this subsection comes into force;

• (b) the day on which the Minister of Veterans Affairs determines that the person was released for medical reasons that are attributable to service;

• (c) the day on which the person is appointed to a position in the public service for an indeterminate period; and

• (d) the day on which the person declines an appointment to a position in the public service for an indeterminate period without good and sufficient reason.

Marginal note:Surviving spousal or common-law priority

• 8.1 (1) If the death of any of the following persons is attributable to the performance of duties, their spouse or common-law partner is entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and subsections 41(1) and (4) of the Act, to any position in the public service in an advertised external appointment process for which the Commission is satisfied that the spouse or common-law partner meets the essential qualifications referred to in paragraph 30(2)(a) of the Act:

  • (a) an employee;

  • (b) a member of the regular force, reserve force or special force;

  • (c) a member, within the meaning of subsection 2(1) of the Royal Canadian Mounted Police Act, of the Royal Canadian Mounted Police; and

  • (d) a member of the Reserve of the Royal Canadian Mounted Police.

  • (e) and (f) [Repealed, SOR/2015-115, s. 6]

• Marginal note:Conditions

  (2) The priority applies if the spouse or common-law partner

  • (a) is not employed in the public service for an indeterminate period at the time the request is made;

  • (b) qualifies under any federally or provincially legislated plan for compensation as a result of the death of the person that is attributable to the performance of duties; and

  • (c) makes a request within two years of qualifying for compensation.

• Marginal note:Death prior to these Regulations

  (3) If the death of the persons referred to in paragraphs (1)(a) to (f) is attributable to the performance of duties and occurred during the period beginning on October 7, 2001 and ending on the coming into force of this section, their spouse or common-law partner is entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and subsection 41(1) and (4) of the Act, to a position in the public service in an advertised external appointment process, for which the Commission is satisfied that the spouse or common-law partner meets the essential qualifications referred to in paragraph 30(2)(a) of the Act if the spouse or common-law partner

  • (a) is not employed in the public service for an indeterminate period at the time the request is made;

  • (b) qualifies under any federally or provincially legislated plan for compensation as a result of the death of the person that is attributable to the performance of duties; and

  • (c) makes a request within two years of the latter of

    • (i) the coming into force of this section, or

    • (ii) the spouse’s or common-law partner’s having qualified for compensation.

• Marginal note:Entitlement period

  (4) The entitlement period for appointment in priority referred to in subsections (1) and (3) begins on the day on which the request is made and ends on the earliest of

  • (a) the day that is two years after the day on which the request is made;

  • (b) the day on which the spouse or common-law partner is appointed to a position in the public service for an indeterminate period; and

  • (c) the day on which the spouse or common-law partner refuses an appointment for an indeterminate period without good and sufficient reason.

Marginal note:Relocation of spouse or common-law partner

• 9 (1) An employee who is on a leave of absence granted as a result of the relocation of their spouse or common-law partner and who is not entitled to be appointed under subsection 41(1) of the Act is entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and subsections 41(1) and (4) of the Act, to any position in the public service for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act.

• Marginal note:Entitlement period

  (2) The entitlement period begins on the day on which the period of the leave of absence begins and ends on the earliest of

  • (a) the day on which the period of leave of absence ends,

  • (b) the day on which the employee is appointed to a position in the public service for an indeterminate period, and

  • (c) the day on which the employee declines an appointment to a position in the public service for an indeterminate period without good and sufficient reason.

Marginal note:Reinstatement

• 10 (1) An employee referred to in sections 39.1 and 40 or subsection 41(1) or (4) of the Act or subsection 5(1), 7(1) or 9(1) of these Regulations who is appointed or deployed to a position in the public service at a lower level is entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and subsections 41(1) and (4) of the Act, to any position in the public service that is of a level that is not higher than the position the employee held immediately before the appointment or deployment to the lower level position and for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act.

• Marginal note:Entitlement period

  (2) The entitlement period begins on the day of the appointment or deployment to the lower level and ends on the earliest of

  • (a) the day that is one year after the day of the appointment or deployment,

  • (b) the day on which the employee is appointed or deployed for an indeterminate period to a position in the public service that is of a level equivalent to or higher than the position the employee held immediately before the entitlement took effect, and

  • (c) the day on which the employee declines an appointment or deployment referred to in paragraph (b) without good and sufficient reason.

Marginal note:Period of entitlement

11 The periods of entitlement referred to in subsections 41(4) and 44 of the Act begin on the day on which the person is laid off and ends on the earliest of

• (a) the day that is one year after the day on which the person is laid off,

• (b) the day on which the person is appointed to a position in the public service for an indeterminate period, and

• (c) the day on which the person declines an appointment to a position in the public service for an indeterminate period without good and sufficient reason.

Acting Appointments

Marginal note:Excluded from priorities and notification

12 An acting appointment is excluded from the application of sections 39.1 and 40, subsections 41(1) and (4) and section 48 of the Act.

Marginal note:Notice

13 The Commission shall, at the time that the following acting appointments are made or proposed, as a result of an internal appointment process, inform the persons in the area of recourse, within the meaning of subsection 77(2) of the Act, in writing of the name of the person who is proposed to be, or has been, appointed and of their right and grounds to make a complaint:

• (a) an acting appointment of four months or more;

• (b) an acting appointment that extends the person’s cumulative period in the acting appointment to four months or more.

Marginal note:Excluded from sections 30 and 77 of the Act

• 14 (1) An acting appointment of less than four months, provided it does not extend the cumulative period of the acting appointment of a person in a position to four months or more, is excluded from the application of sections 30 and 77 of the Act.

• Marginal note:Exception

  (2) Despite subsection (1), the provision of paragraph 30(2)(a) of the Act respecting official language proficiency continues to apply in the case of an acting appointment of less than four months to a vacant bilingual position if

  • (a) the Commission is able to fill the position with an appointment of a person who meets the language proficiency qualification; or

  • (b) the cumulative period of the acting appointments of all persons in that position is four months or more.

Marginal note:Exemption from official language proficiency — encumbered position

• 15 (1) Subject to subsection (2), an acting appointment of four months or more but not more than twelve months to an encumbered bilingual position that the Commission cannot fill with an acting appointment of a person who meets the language proficiency qualification under paragraph 30(2)(a) of the Act is excluded from the application of that paragraph respecting official language proficiency.

• Marginal note:Exception

  (2) Subsection (1) does not apply to an acting appointment to the same position if the cumulative period of the acting appointments of all persons in that position is more than twelve months.

Marginal note:Exemption from official language proficiency — language training

• 16 (1) Subject to subsection (2), an acting appointment of four months or more but not more than eighteen months to a bilingual position, while the incumbent is on language training, that the Commission cannot fill with an acting appointment of a person who meets the language proficiency qualification under paragraph 30(2)(a) of the Act is excluded from the application of that paragraph respecting official language proficiency.

• Marginal note:Exception

  (2) Subsection (1) does not apply to an acting appointment to the same position if the cumulative period of the acting appointments of all persons in that position is more than eighteen months.

Marginal note:Rotational position

17 Despite sections 14 to 16, an acting appointment is excluded from the operation of sections 30 and 77 of the Act if it is to a position in a rotational system that is established by the deputy head in any of the following organizations and requires the movement of employees among places of work, at least one of which is outside Canada:

• (a) Department of Citizenship and Immigration;

• (b) Department of Foreign Affairs, Trade and Development; and

• (c) Canada Border Services Agency.

Executive Group

Marginal note:Underfill and overfill

18 A person who is appointed to a position within the executive group of the public service that is at a lower or higher classification level than the level of the position that the person occupied immediately before the appointment is exempted from the application of section 60 of the Act if pay at the previous level is authorized by the Treasury Board under paragraph 11.1(1)(c) of the Financial Administration Act.

Disclosure of Information Obtained in the Course of an Investigation

Marginal note:Disclosure

• 19 (1) The Commission may disclose personal information obtained in the course of an investigation under section 66, subsection 67(1), or sections 68 or 69 of the Act if disclosure would

  • (a) promote fair and transparent employment practices;

  • (b) promote accountability;

  • (c) ensure that action is taken to correct wrongdoing or improper employment practices and prevent recurrences of such practices; or

  • (d) encourage the adoption or continuance of proper employment practices.

• Marginal note:Privacy interests

  (2) Prior to a disclosure under subsection (1) that could infringe privacy interests, the Commission shall consider whether the public interest in disclosure outweighs those privacy interests.

Marginal note:Disclosure of standardized test

• 20 (1) The Commission shall not disclose a standardized test, or information concerning a standardized test, owned by an organization or the Commission or that is commercially available, if obtained in the course of an investigation under the Act, unless it can be disclosed, with or without conditions set by the Commission, in a manner that will not affect the validity or continued use of the standardized test or will not affect the results of such a test by giving an unfair advantage to any person.

• Marginal note:Standardized test

  (2) For the purpose of subsection (1), a standardized test is a systematic procedure for sampling an individual’s behaviour in order to assess job-relevant characteristics. The procedure is systematic in five areas: development, content, administration, scoring and communication of results. The content of the test is equivalent for all test-takers. The test is administered according to standard instructions and procedures and is scored according to a set protocol.

Lay-offs

Marginal note:Notice

• 21 (1) A deputy head must, before laying off an employee under section 64 of the Act, provide a written notice to the employee that includes

  • (a) a statement indicating that they are to be laid off;

  • (b) the reason, among those set out in subsection 64(1) of the Act, that their services are no longer required;

  • (c) if they were selected for lay-off under subsection 64(2) of the Act,

    • (i) the reason they were selected for lay-off, and

    • (ii) a statement indicating that they have a right to make a complaint under subsection 65(1) of the Act;

  • (d) the date on which their services will no longer be required; and

  • (e) the date on which they are to be laid off or, if that date is not known, a statement indicating that they will be advised, in writing, of that date once it is known.

• Marginal note:Employees retained

  (2) The deputy head must notify in writing any employee referred to in subsection 22(3) who is not selected for lay-off that they are to be retained.

• Marginal note:Non-application — specified term

  (3) This section does not apply in respect of an employee who is appointed for a specified term.

Marginal note:Selection of employees for lay-off

• 22 (1) For the purpose of subsection 64(2) of the Act, the selection of the employees to be laid off in any part of an organization in which the deputy head has determined that the services of some but not all of the employees are no longer required must be conducted in accordance with subsections (2) to (8).

• Marginal note:Determination of qualifications, requirements and needs

  (2) For each category of employees of the same occupational group and level who are either employed in similar positions or performing similar duties in the part of the organization referred to in subsection (1), if the services of some but not all of those employees are no longer required, the deputy head must determine

  • (a) the essential qualifications that are most relevant for the work to be performed, including official language proficiency, and any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future; and

  • (b) any relevant current or future operational requirements or needs of the organization.

• Marginal note:Information

  (3) The deputy head must inform, in writing, all employees who belong to a category referred to in subsection (2) of

  • (a) the qualifications, requirements and needs that were determined under that subsection and in relation to which the employees will be assessed;

  • (b) the assessment methods that will be used; and

  • (c) the opportunity to request accommodation measures and the process for doing so.

• Marginal note:Assessment methods

  (4) The deputy head may, subject to subsections (5) and (6), use any assessment method that they consider appropriate, such as a review of past performance and accomplishments, interviews and examinations, to assess the employees.

• Marginal note:Identification of biases and barriers

  (5) Before using an assessment method, the deputy head must conduct an evaluation to identify whether the assessment method and the manner in which it will be applied includes or creates biases or barriers that disadvantage persons belonging to any equity-seeking group and, if a bias or barrier is identified, make reasonable efforts to remove it or to mitigate its impact on those persons.

• Marginal note:Second language assessment

  (6) Any assessment of an employee’s proficiency in their second official language must be conducted using the same methods as apply to appointments to or from within the public service.

• Marginal note:Language of examination or interview

  (7) Any examination or interview must

  • (a) except in the case referred to in paragraph (b), be conducted in English or French or both at the option of the employee; and

  • (b) if its purpose is to assess the employee’s knowledge and use of English or French or both, or of a third language, be conducted in that language or those languages.

• Marginal note:Assessment and selection

  (8) The deputy head must assess the employees having regard to the factors determined under subsection (2) and must select which of the employees are to be laid off.

• Marginal note:Volunteers

  (9) Despite subsections (1) to (8), if an employee volunteers to be laid off, the deputy head may advise the employee that their services are no longer required and may lay off the employee.

• Marginal note:Recording reasons

  (10) The deputy head must record the reasons for selecting or not selecting each employee for lay-off.

• Marginal note:Non-application — specified term

  (11) This section does not apply in respect of an employee who is appointed for a specified term.