Public Service Employment Regulations (SOR/2005-334)

Interpretation

Marginal note:Interpretation

1 The following definitions apply in these Regulations.

Act

Act means the Public Service Employment Act. (Loi)

acting appointment

acting appointment means the temporary performance of the duties of another position by an employee, if the performance of those duties would have constituted a promotion had they been appointed to the position. (nomination intérimaire)

bilingual position

bilingual position means a position identified by the deputy head as one for which the work to be performed requires proficiency in both official languages. (poste bilingue)

common-law partner

common-law partner, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. (conjoint de fait)

excluded position

excluded position[Repealed, SOR/2010-89, s. 1]

regular force

regular force has the same meaning as in subsection 2(1) of the National Defence Act. (force régulière)

reserve force

reserve force has the same meaning as in subsection 2(1) of the National Defence Act. (force de réserve)

special force

special force has the same meaning as in subsection 2(1) of the National Defence Act. (force spéciale)

Incumbent-based Process

Marginal note:Incumbent-based process

2 For the purposes of subsection 34(1) of the Act, the internal appointment process within the Research and University Teaching Groups, if there is a career progression framework established by the deputy head in consultation with the authorized bargaining agents that includes an independent recourse mechanism, is an incumbent-based process.

Priorities

Marginal note:Exclusion from statutory priority rights

3 A member of a designated group, within the meaning of section 3 of the Employment Equity Act, may be appointed, in accordance with an employment equity program, without regard to any entitlement to appointment in priority established under sections 39.1 and 40 and subsections 41(1) and (4) of the Act, unless the person who is entitled to appointment in priority in accordance with those provisions is also a member of a designated group, within the meaning of section 3 of the Employment Equity Act, to which the employment equity program applies.

Marginal note:Non-application — certain appointments

• 4 (1) The entitlement to appointment in priority established under sections 5 to 10 does not apply to

  • (a) incumbent-based appointments;

  • (b) acting appointments; and

  • (c) the appointment of a member of a designated group, within the meaning of section 3 of the Employment Equity Act, in accordance with an employment equity program, unless the person who is entitled to appointment in priority in accordance with those provisions is also a member of a designated group, within the meaning of section 3 of the Employment Equity Act, to which the employment equity program applies.

• Marginal note:Non-application — certain persons

  (2) The entitlement to appointment in priority established by sections 5, 7, 9 and 10 does not apply to an employee who is employed for a specified period.

Marginal note:Canadian Forces — release for medical reasons attributable to service

• 4.1 (1) The following persons who are released from the Canadian Forces for medical reasons that the Minister of Veterans Affairs determines are attributable to service are entitled to the priority for appointment provided under section 39.1 of the Act:

  • (a) a member of the regular force;

  • (b) a member of the reserve force; and

  • (c) a member of the special force.

• Marginal note:Conditions

  (2) Subject to subsection (3), the priority applies if

  • (a) the person requests the priority within five years after the day on which the person is released, regardless of whether the determination referred to in subsection (1) is still pending on the day on which the request is made;

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

  • (c) within five years after the day on which the person is released, the person is certified by a competent authority to be ready to return to work on the day specified by the authority; and

  • (d) the day specified is within five years after the day on which the person is released.

• Marginal note:Alternative condition

  (3) The priority applies if, on the day on which the Minister of Veterans Affairs determines that the person was released for medical reasons that are attributable to service, the person had an entitlement to a priority for appointment under section 8.

• Marginal note:Beginning of entitlement period

  (4) The entitlement period begins on

  • (a) if the priority is applicable under subsection (2), the later of the day on which the person is ready to return to work, as certified by a competent authority, and the day on which the Minister of Veterans Affairs determines that the person was released for medical reasons that are attributable to service; or

  • (b) if the priority is applicable under subsection (3), the day on which the Minister of Veterans Affairs determines that the person was released for medical reasons that are attributable to service.

• Marginal note:End of entitlement period

  (5) The entitlement period ends on the earliest of

  • (a) the day that is five years after the day on which the entitlement period begins under subsection (4);

  • (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.

Marginal note:Surplus employees

• 5 (1) An employee who has been advised by the deputy head that their services are no longer required but before any layoff becomes effective 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 an employee is declared surplus by the deputy head and ends on the earliest of

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

  • (b) the day on which the employee refuses a reasonable job offer in the public service, and

  • (c) the day on which the employee is laid off.

6 [Repealed, SOR/2010-89, s. 2]

Marginal note:Employee who becomes disabled

• 7 (1) An employee who becomes disabled and who, as a result of the disability, is no longer able to carry out the duties of their position 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 if

  • (a) within five years after the day on which the employee became disabled, the employee is certified by a competent authority to be ready to return to work on the day specified by the authority; and

  • (b) the day specified is within five years after the day on which the employee became disabled.

• Marginal note:Entitlement period

  (2) The entitlement period begins on the day on which the employee is ready to return to work, as certified by a competent authority, and ends on the earliest of

  • (a) the day that is two years after the day on which the entitlement period begins;

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

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

• Marginal note:Entitlement continues

  (3) The entitlement under subsection (1) continues even if, as a result of the person’s disability, they cease to be an employee.

• Marginal note:Interpretation

  (4) For the purpose of this section, an employee is considered to be disabled if they qualify for disability compensation under

  • (a) the Canada Pension Plan;

  • (b) An Act Respecting the Québec Pension Plan, R.S.Q., c. R-9, as amended from time to time;

  • (c) the Public Service Superannuation Act;

  • (d) the Government Employees Compensation Act; or

  • (e) a public service group disability insurance plan.

Marginal note:RCMP — discharge for medical reasons

• 7.1 (1) The following persons who are discharged from the Royal Canadian Mounted Police for medical reasons are 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 person meets the essential qualifications referred to in paragraph 30(2)(a) of the Act:

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

  • (b) a member of the Reserve of the Royal Canadian Mounted Police, if the medical reasons are attributable to service.

• Marginal note:Conditions

  (2) The priority applies if

  • (a) the person requests the priority within five years after the day on which the person is discharged;

  • (b) within five years after the day on which the person is discharged, the person is certified by a competent authority to be ready to return to work on the day specified by the authority; and

  • (c) the day specified is within five years after the day on which the person is discharged.

• Marginal note:Entitlement period

  (3) The entitlement period begins on the day on which the person is ready to return to work, as certified by a competent authority, and ends on the earliest of

  • (a) the day that is two years after the day on which the entitlement period begins;

  • (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.

Marginal note:Canadian Forces — release for medical reasons

• 8 (1) The following persons who are released from the Canadian Forces for medical reasons are 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 person meets the essential qualifications referred to in paragraph 30(2)(a) of the Act:

  • (a) a member of the regular force;

  • (b) a member of the special force; and

  • (c) a member of the reserve force on Class B Reserve Service of more than 180 consecutive days or on Class C Reserve Service.

• Marginal note:Conditions

  (1.1) The priority applies if

  • (a) the person requests the priority within five years after the day on which the person is released;

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

  • (c) within five years after the day on which the person is released, the person is certified by a competent authority to be ready to return to work on the day specified by the authority; and

  • (d) the day specified is within five years after the day on which the person is released.

• Marginal note:Entitlement period

  (2) The entitlement period begins on the day on which the person is ready to return to work, as certified by a competent authority, and ends on the earliest of

  • (a) the day that is five years after the day on which the entitlement period begins;

  • (a.1) the day on which the Minister of Veterans Affairs determines that the person was released for medical reasons that are attributable to service;

  • (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.

• Marginal note:Interpretation

  (3) In subsection (1), Class B Reserve Service and Class C Reserve Service have the same meaning as in sections 9.07 and 9.08, respectively, of the Queen’s Regulations and Orders for the Canadian Forces.

Marginal note:Persons who had prior entitlement

• 8.01 (1) A person who had an entitlement to a priority under any of paragraphs 8(1)(a) to (d), as they read before the day on which this section comes into force, is entitled to the priority referred to subsection 8(1) if their previous entitlement period ends at any time during the period beginning on April 1, 2012 and ending on the day before the day on which this section comes into force.

• Marginal note:Conditions

  (2) Despite subsection 8(1.1), the priority applies if

  • (a) the person was released from the Canadian Forces for medical reasons;

  • (b) the person does not have an entitlement to a priority for appointment under section 39.1 of the Act; and

  • (c) the person is not employed in the public service for an indeterminate period on the day on which this section comes into force.

• Marginal note:Entitlement period

  (3) Despite subsection 8(2), the entitlement period begins on the day on which this section come into force and ends on the earliest of

  • (a) the day that is five years after the day on which this section came 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: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 to a position in a rotational system established by the deputy head, in order to provide for the movement of employees within and outside Canada in the following organizations is excluded from the application of sections 30 and 77 of the Act:

• (a) Department of Citizenship and Immigration,

• (b) Department of Foreign Affairs and International Trade, 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 evaluate jobrelevant competencies. 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:Selection of employees for lay-off

• 21 (1) If the services of one or more employees of a part of an organization are no longer required in accordance with section 64 of the Act, the deputy head shall assess the merit of the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify, in accordance with merit, the employees who are to be retained having regard to the continuing functions of that part of the organization and the remaining employees who are to be advised that their services are no longer required and are to be laid off.

• Marginal note:Recording reasons

  (2) Deputy heads shall record the reasons for the selection of those employees to be retained.

• Marginal note:Ship Repair group

  (3) Despite subsection (1), the determination of employees to be laid off in the Ship Repair group in the Department of National Defence shall be based on a combination of merit and seniority factors and shall be made in consultation with the bargaining agents concerned.

• Marginal note:Employee volunteers

  (4) Despite subsection (1), 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:Information

  (5) The deputy head shall, in writing, inform

  • (a) the Commission of the names of the employees who are to be laid off in accordance with this section and the proposed date of the lay-off; and

  • (b) any employee who is advised that their services are no longer required, of the proposed layoff date.

• Marginal note:Specified period

  (6) Subsections (1) to (5) do not apply to an employee who is appointed for a specified period.

Repeals

22 [Repeal]

23 [Repeal]

Coming into Force

Footnote ^*24 These Regulations come into force on the day on which section 12 of the Public Service Modernization Act, chapter 22 of the Statutes of Canada, 2003, comes into force.

• Return to footnote ^*[Note: Regulations in force December 31, 2005, see SI/2005-122.]