Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13 )

Marginal note:Language of examination

• 37 (1) An examination or interview, when conducted for the purpose of assessing qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i), other than language proficiency, shall be conducted in English or French or both at the option of the candidate.

• Marginal note:Testing for language skills

  (2) An examination or interview, when conducted for the purpose of assessing the qualifications of the candidate in the knowledge and use of English or French or both, or of a third language, shall be conducted in that language or those languages.

Marginal note:Exceptions to merit

38 Paragraph 30(2)(b) does not apply in relation to any appointment made under subsection 15(6) (re-appointment on revocation by deputy head), section 39.1 (priority — members of the Canadian Forces) or 40 (priorities — surplus employees), subsection 41(1) or (4) (other priorities) or section 73 (re-appointment on revocation by Commission) or 86 (re-appointment following Board order), or under any regulations made under paragraph 22(2)(a).

Preferences, Priorities and Entitlements

Marginal note:Preference to veterans and Canadian citizens

• 39 (1) In an advertised external appointment process, subject to any priorities established under paragraph 22(2)(a) and by sections 39.1, 40 and 41, any of the following who, in the Commission’s opinion, meet the essential qualifications referred to in paragraph 30(2)(a) shall be appointed ahead of other candidates, in the following order:

  • (a) a person who is in receipt of a pension by reason of war service, within the meaning of the schedule;

  • (b) a veteran or a survivor of a veteran, within the meaning of the schedule; and

  • (c) a Canadian citizen, within the meaning of the Citizenship Act, and a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, in any case where a person who is not a Canadian citizen or permanent resident is also a candidate.

• Marginal note:Application of merit

  (2) Where the Commission is satisfied that two or more candidates described in any of paragraphs (1)(a) to (c) meet the essential qualifications referred to in paragraph 30(2)(a), paragraph 30(2)(b) applies in the selection of a person from among the candidates described in that paragraph.

• Marginal note:Limit of five years

  (3) With respect to a veteran referred to in paragraph (f) of the definition veteran within the meaning of the schedule, the order of appointment set out in subsection (1) is valid for a period of five years after the veteran’s date of release.

Marginal note:Priority — member of Canadian Forces

• 39.1 (1) Despite sections 40 and 41, priority for appointment over all other persons is to be given, during the period determined by the Commission, to a person who was released from the Canadian Forces for medical reasons that the Minister of Veterans Affairs determines are attributable to service, who belongs to a class determined by the Commission and who meets the requirements established by the Commission.

• Marginal note:Essential qualifications

  (2) A person referred to in subsection (1) has a priority for appointment with respect to any position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

Marginal note:Priority — surplus employees

40 Notwithstanding section 41, after a deputy head informs an employee that the employee will be laid off pursuant to subsection 64(1) and before the lay-off becomes effective, the Commission may appoint the employee in priority to all other persons to another position under the deputy head’s jurisdiction if the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) and that it is in the best interests of the public service to make the appointment.

Marginal note:Priority — persons on leave

• 41 (1) When an employee on leave of absence is replaced, pursuant to the appointment or deployment of another person for an indeterminate period to the employee’s position, priority for appointment shall be given over all other persons to

  • (a) the employee on leave of absence, for the duration of the leave of absence and a further period of one year; or

  • (b) if the employee on leave of absence returns to his or her position, the person who replaced that employee, for a period of one year after that employee returns to the position.

• (2) and (3) [Repealed, 2006, c. 9, s. 103]

• Marginal note:Priority — persons laid off

  (4) Priority for appointment over all other persons shall be given, during the period determined by the Commission, to a person who is laid off pursuant to subsection 64(1).

• Marginal note:Essential qualifications

  (5) The priority of a person referred to in subsection (1) or (4) applies with respect to any position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

• Marginal note:Order of priorities

  (6) Persons described in subsection (1) shall be appointed in priority to persons described in subsection (4), and persons described in each of those subsections shall be appointed in the order determined by the Commission.

Marginal note:Resumption of employment

• 41.1 (1) At the end of a leave of absence from employment that is taken by an employee who is a member of the reserve force in order to take part in an operation or activity referred to in paragraphs 247.5(1)(a) to (f) of the Canada Labour Code, the deputy head shall reinstate the employee in the position that the employee occupied on the day before the day on which the leave begins.

• Marginal note:Workforce adjustment

  (2) Despite subsection (1), if a deputy head is not able to reinstate the employee in that position by reason of a workforce adjustment, the workforce adjustment measures that are established by the employer or the measures that are set out in agreements relating to workforce adjustment apply.

Marginal note:Failure to appoint person on leave

42 A person who is entitled under subsection 41(1) to be appointed to a position and who is not so appointed in the applicable period provided for in that subsection ceases to be an employee at the end of that period.

Marginal note:Non-application of priority provisions

43 Despite sections 39.1, 40 and 41 and any regulations made under paragraph 22(2)(a), if the Commission considers that the appointment of a person who has a right to be appointed in priority to other persons under any of those provisions will result in another person having a priority right, the Commission may decide not to apply that provision in that case.

Marginal note:Participation in advertised process — lay-offs

44 A person who is laid off under subsection 64(1) is entitled, during any period that the Commission determines for any case or class of cases, to participate in any advertised appointment process for which the person would have been eligible had the person not been laid off.

Marginal note:Non-application to term employees

45 Section 40, subsection 41(4) and section 44 do not apply to a person whose employment was for a specified term at the time they were informed that they would be laid off.

Marginal note:Deemed lay-off

46 For the purposes of subsection 41(4) and section 44, a person who, while employed in the public service, does not accept an offer of employment made in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act that is a reasonable job offer within the meaning of an agreement respecting work force adjustment or who accepts an offer of employment, made in such circumstances, that is not a reasonable job offer within the meaning of such an agreement, is deemed to be laid off.

Informal Discussion and Appointment

Marginal note:Informal discussion with employee

47 Where a person is informed by the Commission, at any stage of an internal appointment process, that the person has been eliminated from consideration for appointment, the Commission may, at that person’s request, informally discuss its decision with that person.

Marginal note:Persons being considered for appointment

• 48 (1) After the assessment of candidates is completed in an internal appointment process, the Commission shall, in any manner that it determines, inform the following persons of the name of the person being considered for each appointment:

  • (a) in the case of an advertised internal appointment process, the persons in the area of selection determined under section 34 who participated in that process; and

  • (b) in the case of a non-advertised internal appointment process, the persons in the area of selection determined under section 34.

• Marginal note:Waiting period

  (2) For the purposes of internal appointment processes, the Commission shall fix a period, beginning when the persons are informed under subsection (1), during which appointments or proposals for appointment may not be made.

• Marginal note:Appointment or proposed appointment

  (3) Following the period referred to in subsection (2), the Commission may appoint a person or propose a person for appointment, whether or not that person is the one previously considered, and the Commission shall so inform the persons who were advised under subsection (1).

Marginal note:Finality of appointments

49 The Commission’s decision to appoint a person or to propose a person for appointment is final and is not subject to appeal or review except in accordance with this Act.

Casual Employment

Marginal note:Appointment

• 50 (1) The Commission may appoint any person as a casual worker to that part of the public service to which the Commission has exclusive authority to make appointments.

• Marginal note:Maximum period

  (2) The period of employment of a casual worker may not exceed 90 working days in one calendar year in any particular department or other organization.

• Marginal note:Application of Act

  (3) The provisions of this Act, other than this section, do not apply to casual workers.

• Marginal note:Ineligibility

  (4) A casual worker is not eligible to be considered for appointment in any internal appointment process.

• Marginal note:Term appointments

  (5) This section does not affect the Commission’s authority to appoint a person to or from within the public service, other than on a casual basis, for a specified term of ninety working days or less.

Marginal note:Exception — Office of the Chief Electoral Officer

50.1 Despite subsection 50(2), the maximum period of employment of casual workers appointed in the Office of the Chief Electoral Officer — including the portions of the federal public administration in that Office in which the employees referred to in section 509.3 of the Canada Elections Act occupy their positions — for the purposes of an election held under that Act or a referendum held under the Referendum Act is 165 working days in one calendar year.

Marginal note:Exception

• 50.2 (1) Despite subsection 50(2), a person may be appointed as a casual worker to the Royal Canadian Mounted Police for a period of more than 90 working days in one calendar year in the circumstances prescribed by regulations made under paragraph 22(2)(j).

• Marginal note:Review

  (2) The Commission may, on an annual basis, conduct a review of the exercise of the authority to appoint casual workers to the Royal Canadian Mounted Police for more than 90 working days during the preceding calendar year.