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Part II, Chapter 1: Leave of absence returnees/leave of absence replacements
Table of Contents
- 1.A.1 Leave of Absence Returnee
- 1.A.2 The entitlement
- 1.A.3 Duration of Entitlement
- 1.A.4 Position not Back-filled
- 1.A.5 Position Becomes Surplus
- 1.A.6 Expiry of Priority Period/End of Employment
- 1.A.7 Specified Term Appointment
- 1.A.8 Appointment to a Lower-Level Position
- 1.A.9 Protecting Severance
- 1.A.10 Documents Required by PSC to Support Registration
- 1.B.1 Duration of Entitlement
- 1.B.2 Expiry of Priority Period
- 1.B.3 Appointment to a Specified Term Position
- 1.B.4 Protecting Severance
- 1.B.5 Appointment to a Lower-Level Position
- 1.B.6 Documents Required by PSC to Support Registration
1.1 Legal Basis
This priority entitlement is created by subsection 41(1) of the PSEA
"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.
The circumstances under which leaves of absence may be granted, and in which the position of an employee on leave may be back-filled, are outlined in the Leave Without Pay Policy of the Treasury Board Secretariat (TBS). Organizations must contact the TBS, not the PSC, for interpretation or clarification of this policy.
Note: When an employee on leave is replaced on an indeterminate basis, the manager must decide whether the employee returning from leave or the employee hired as a leave replacement will be retained at the end of the leave period. The employee who will not be retained is the one who will have the priority entitlement. This decision should be made at the same time as the decision to back-fill the position on an indeterminate basis. The organization must clearly inform the employees of their status, including the priority entitlement. If the person already had a priority entitlement, he or she must be informed of the change in entitlement, including changes to his/her entitlement period.
1.A.1 Leave of Absence Returnee
The priority entitlement for leave of absence returnees – PSEA, section 41(1)(a) – refers to employees who are on leave without pay, for any reason, and whose positions have been back-filled on an indeterminate basis, either by appointment or deployment.
1.A.2 The Entitlement
An employee with this priority is entitled to be appointed ahead of all other persons to any position for which the employee meets the essential qualifications, referred to in PSEA 30 (2) (a). An exception to the entitlement is allowed where the organization intends to appoint one of its own surplus employees, pursuant to section 40 of the PSEA.
1.A.3 Duration of Entitlement
The entitlement starts on the date the position is back-filled indeterminately and lasts for the remainder of the leave period, plus one year thereafter.
Example:
An employee took leave without pay for five years starting on February 14, 2005, and ending on February 13, 2010. The date of backfill of the employee's position is November 2, 2007.
Priority start date: Nov. 2, 2007
Priority end date: Feb. 13, 2011
The manager can back-fill the position at any time, once leave has been approved for a period exceeding that specified in the TBS Leave Without Pay Policy.
Organizations must register the priority person as soon as the position is back-filled, since the priority starts on the day the position is back-filled. If the employee on leave is unavailable for referral, the organization must still register the priority, and inform the PSC of the date when the employee will be available.
The priority entitlement ends when:
- the employee is appointed to another indeterminate position during the priority period;
- the priority period expires without an indeterminate appointment; or
- the employee resigns, retires or is released.
The start dates and durations of the various entitlements are set by the PSEA and/or PSER and cannot be altered. The PSC will only begin marketing the priority person once he or she is registered in the PIMS. Late registration will reduce the effective period of entitlement and may result in lost opportunities for the priority person.
1.A.4 Position not Back-filled
If the employee's position has not been back-filled indeterminately, there is no entitlement to a Leave of Absence priority - the employee simply returns to the position.
1.A.5 Position Becomes Surplus
If the position is abolished (declared surplus) during the period of leave, and has not been back-filled indeterminately, then the employee on leave remains the indeterminate incumbent and is subject to being declared surplus.
If the position has been back-filled on an indeterminate basis, then the person on leave is a leave of absence priority and the fact that the position has become surplus has no effect on them. The priority person simply continues their leave of absence priority.
1.A.6 Expiry of Priority Period/End of Employment
If the priority person has not been appointed indeterminately during the priority period, the priority person ceases to be an employee at the end of the priority period, as per section 42 of the PSEA, except in the circumstances described in the next section (Appointment to a Specified-Term Position).
1.A.7 Specified Term Appointment
If the priority person is appointed on a specified term basis, the priority entitlement continues until either an indeterminate appointment is made or the priority period ends, whichever occurs first. A specified term appointment that lasts beyond the end date of the priority period continues to be valid for its duration, even if the priority entitlement has ended.
NOTE: The period of the specified term appointment DOES NOT extend the priority entitlement period. In such a case, the employee will cease to be an employee at the end of the specified term, rather than at the end of the priority period, unless their employment status changes during the period of the term appointment. This may result from such things as a conversion of the term appointment to an indeterminate appointment, or the person being successful in a different staffing process.
1.A.8 Appointment to a Lower-Level Position
If the employee is appointed indeterminately to a lower level position during the priority period, he or she becomes entitled to a reinstatement priority.
1.A.9 Protecting Severance
An employee who will cease to be an employee on the expiration of the leave of absence priority period may need to resign at least one day in advance of the end of the priority period in order to protect severance benefits. This should be discussed with their organizational compensation advisor prior to the priority end date. It is the organization's responsibility to ensure that the priority person understands all implications.
1.A.10 Documents Required by PSC to Support Registration
- The PIMS on-line Registration Form;
- Letter or other evidence (leave form) granting and/or extending leave, showing the type of leave with the start and end dates; and
- Letter or document informing the PSC (and the employee) of the effective date that the employee's position was backfilled indeterminately.
1.B LEAVE OF ABSENCE REPLACEMENT
The priority entitlement for leave of absence replacements – PSEA, paragraph 41(1)(b) - refers to the employee who has been appointed or deployed indeterminately to a position to replace the former incumbent who had been granted leave, where the employee on leave is returning to the position.
1.B.1 Duration of Entitlement
The priority entitlement for the leave replacement starts on the first day after the return of the employee who has been granted leave. The priority lasts for one year.
The priority entitlement ends when:
- the priority person is appointed to another indeterminate position during the priority period;
- the priority period expires without an indeterminate appointment; or
- the priority person resigns, retires or is released.
1.B.2 Expiry of Priority Period
If the priority person is not appointed indeterminately during the priority period, the person ceases to be an employee at the end of the priority period, as per section 42, except in the circumstances described in the next section (Appointment to a Specified Term Position).
1.B.3 Appointment to a Specified Term Position
If the priority person is appointed on a specified term basis during the priority period, the priority entitlement continues until either an indeterminate appointment is made or the priority period ends, whichever occurs first. A specified term appointment that lasts beyond the end date of the priority period continues to be valid even if the priority entitlement has ended.
NOTE: The period of the specified term appointment DOES NOT extend the priority entitlement period. In such a case, the employee will cease to be an employee at the end of the specified term, rather than at the end of the priority period, unless their employment status changes during the period of the term appointment. This may result from such things as a conversion of the term appointment to an indeterminate appointment, or the person being successful in a different staffing process.
1.B.4 Protecting Severance
A priority person who will cease to be an employee on the expiration of the priority period may need to resign at least one day in advance in order to protect severance benefits. This should be discussed with their organizational compensation advisor prior to the priority end date. It is the organization's responsibility to ensure that the priority person understands all implications.
1.B.5 Appointment to a Lower-Level Position
A priority person appointed indeterminately to a lower-level position during the priority period becomes entitled to the reinstatement priority.
1.B.6 Documents Required by PSC to Support Registration
- The PIMS on-line Registration Form;
- Letter granting leave to the original incumbent of the position, showing the start and end dates of the leave;
- Document showing the indeterminate appointment of the employee hired as a leave replacement, with the effective date; and
- Document indicating the date that the employee on leave has returned to the position.