Part II, Chapter 1: Leave of Absence Returnees/Leave of Absence Replacements

Table of Contents

1.1 Legal Basis

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

  1. the employee on leave of absence, for the duration of the leave of absence and a further period of one year; or
  2. 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 leave of absence may be granted, and in which the position of an employee on leave may be back-filled, are outlined in the Directive on Leave and Special Working Arrangements 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 employee of their status, including the priority entitlement. If the employee already had a priority entitlement, they must be informed of the change in entitlement, including changes to their priority entitlement period.

Pursuant to section 41.1(1) of the PSEA, an employee on leave to take part in an operation or activity related to being a reservist must be reinstated in their position at the end of the leave, regardless of the duration of the leave granted. The manager cannot indeterminately staff a reservist’s position, even if the leave exceeds one year, unless the priority entitlement is given to the replacement as per PSEA 41(1)(b).

1.1.1 Leave of Absence Returnee

The priority entitlement for leave of absence returnees – PSEA, section 41(1)(a) – refers to employees who are on leave for any reason, and whose positions have been back-filled on an indeterminate basis, either by appointment or deployment.

1.1.2 The Entitlement

An employee with this priority entitlement 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 priority entitlement is allowed where the organization intends to appoint one of its own surplus employees, pursuant to section 40 of the PSEA.

1.1.3 Duration of Entitlement

The entitlement starts on the date the position is back-filled indeterminately in accordance with the TBS Directive on Leave and Special Working Arrangements and continues for the remainder of the leave period, plus one year thereafter.

Example 1:

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

Organizations must register the priority person as soon as the position is back-filled, since the priority entitlement 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 person, and inform the PSC of the date when the priority person will be available.

The priority entitlement ends when:

  1. the employee is appointed to another indeterminate position during the priority period;
  2. the priority period expires without an indeterminate appointment; or
  3. the employee resigns, retires or is released.

When a person with a return from leave of absence priority entitlement requests additional leave during their entitlement period, including the “one year thereafter” period and such additional leave is approved by the organization, the priority entitlement, including the one year thereafter period, shall be extended in accordance with the new leave period.

Example 2:

The same employee from the example above, during the one year thereafter period, requests and receives approval for an additional period of leave from August 18, 2010 to March 17, 2011. Because they are still an “employee” during the one year thereafter period, they retain their right to request leave provisions of their applicable collective agreement. The employee’s priority entitlement period is then extended in accordance with the new period of leave, plus the one year thereafter period which now ends on March 17, 2012.

The start dates and durations of the various priority entitlements are set by the PSEA and/or PSER and cannot be altered. The PSC will only begin referring the priority person once they are registered in the PIMS. Late registration will reduce the effective period of entitlement and may result in lost opportunities for the priority person.

1.1.4 Position not Back-filled

If the employee's position has not been back-filled indeterminately, there is no eligibility for a Leave of Absence priority entitlement - the employee simply returns to the position.

1.1.5 Position Becomes Surplus

If the position is to be 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 in accordance with the TBS Work Force Adjustment Directive (WFAD), Work Force Adjustment Agreement (WFAA) and related appendices to the collective agreements. The TBS WFA Questions and Answers provides additional guidance for managing WFA in such situations. If the deputy head provides a guarantee of a reasonable job offer or if, as an opting employee, the employee chooses a twelve-month surplus priority period, the employee has a surplus priority entitlement.

If the position has been back-filled on an indeterminate basis, then the employee on leave has a leave of absence priority entitlement and the fact that the position has become surplus has no effect on them. The priority person simply continues their leave of absence priority entitlement. The indeterminate replacement is the employee who is then affected by the WFA situation and is declared surplus in accordance with the WFAD, WFAA and related appendices to the collective agreements.

1.1.6 Expiry of Priority Period/End of Employment

If the priority person has not been appointed indeterminately during the priority entitlement period, the priority person ceases to be an employee at the end of the priority entitlement period (the one year thereafter period), as per section 42 of the PSEA, except in the circumstances described in the  upcoming section “Appointment to a Specified-Term Position”.

1.1.7 Protecting Severance

An employee who will cease to be an employee on the expiration of the leave of absence priority entitlement period may need to resign at least one day in advance of the end of the priority entitlement period in order to protect any severance benefits that have not already been cashed-out. This should be discussed with their organizational compensation advisor prior to the priority entitlement end date. It is the organization's responsibility to ensure that the priority person understands all implications.

Note: For most bargaining groups, severance benefits are no longer provided on resignation or retirement.

1.1.8 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 entitlement period ends, whichever occurs first. A specified term appointment that lasts beyond the end date of the priority entitlement 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 cases, the employee will cease to be an employee at the end of the specified term, rather than at the end of the priority entitlement period, unless their employment status changes during the period of the term appointment. This may result from changes, such as a conversion of the term appointment to an indeterminate appointment, or the person being successful in a different staffing process.

1.1.9 Appointment to a Lower-Level Position

If the employee is appointed indeterminately to a lower level position during the priority period, they have a reinstatement priority entitlement.

1.1.10 Documents Required by PSC to Support Registration

  • The PIMS on-line Registration Form;
  • Privacy Consent Form for Priority Persons (keep in the employee’s personnel file);
  • Signed Manager’s Attestation Form (keep in the employee’s personnel file);
  • 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 employee of the effective date that the employee's position was back-filled indeterminately.

Note 1: All supporting documents to be provided to the PSC as soon as possible but no later than 10 working days following registration.

Note 2: If the responsible manager changes subsequent to registration of the priority person, it is not necessary to have a new attestation form signed by the new manager.

Note 3: Priority persons who want to be referred to bilingual positions should have valid second language results at the time of registration or should be scheduled for second language testing if they have never been tested or if their results have expired.

1.2 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.

1.2.1 The Entitlement

An employee with this priority entitlement shall be appointed ahead of all other persons, except those with a statutory surplus priority entitlement (PSEA 40), to any position for which the employee meets the essential qualifications, referred to in PSEA 30 (2)(a).

1.2.2 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 entitlement lasts for one year.

The priority entitlement ends when:

  1. the priority person is appointed to another indeterminate position during the priority entitlement period;
  2. the priority entitlement period expires without an indeterminate appointment; or
  3. the priority person resigns, retires or is released.

1.2.3 Expiry of Priority Period

If the priority person has not been appointed indeterminately during the priority entitlement period, the priority person ceases to be an employee at the end of the priority entitlement period (the one year thereafter period), as per PSEA section 42, except in the circumstances described in the next section (Appointment to a Specified Term Position).

1.2.4 Appointment to a Specified Term Position

If the priority person is appointed on a specified period (term) basis during the priority entitlement period, the priority entitlement continues until either an indeterminate appointment is made or the priority entitlement period ends, whichever occurs first. A specified term appointment that lasts beyond the end date of the priority entitlement 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 cases, the employee will cease to be an employee at the end of the specified term, rather than at the end of the priority entitlement period, unless their employment status changes during the period of the term appointment. This may result from changes, such as a conversion of the term appointment to an indeterminate appointment, or the person being successful in a different staffing process.

1.2.5 Protecting Severance

A priority person who will cease to be an employee on the expiration of the priority entitlement period may need to resign at least one day in advance in order to protect any severance benefits that have not already been cashed out. This should be discussed with their organizational compensation advisor prior to the priority entitlement end date. It is the organization's responsibility to ensure that the priority person understands all implications.

Note: For most bargaining groups, severance benefits are no longer provided on resignation or retirement.

1.2.6 Appointment to a Lower-Level Position

A priority person appointed indeterminately to a lower-level position during the priority entitlement period has a reinstatement priority entitlement.

1.2.7 Documents Required by PSC to Support Registration

  • The PIMS on-line Registration Form;
  • Privacy Consent Form for Priority Persons (keep in the employee’s personnel file);
  • Signed Manager’s Attestation Form (keep in the employee’s personnel file);
  • 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.

Note 1: All supporting documents to be provided to the PSC as soon as possible but no later than 10 working days following registration.

Note 2: If the responsible manager changes subsequent to registration of the priority person, it is not necessary to have a new attestation form signed by the new manager.

Note 3: Priority persons who want to be referred to bilingual positions should have valid second language results at the time of registration or should be scheduled for second language testing if they have never been tested or if their results have expired.

1.3 Deployment of Leave of Absence Priority Persons

The PSEA defines deployment as “the transfer of a person from one position to another in accordance with Part 3” (of the PSEA).

An employee who is on leave of absence whose position has been staffed indeterminately by an indeterminate appointment or deployment (PSEA 41(1)(a)) no longer holds a position. The indeterminate appointment or deployment of the replacement employee severed the leave of absence returnee from that position. As a result, the leave of absence returnee cannot be deployed to another position, they must be appointed.

The employee who indeterminately replaces the employee on leave of absence may be eligible for the priority entitlement (PSEA 41(1)(b)). For this to occur, the employee who was on leave of absence would have to return to their position. In the same manner as the case described above, the replacement employee would no longer hold the position and could not be deployed to another position; they would have to be appointed.

1.4 Travel and Relocation Costs

Travel and relocation costs are the responsibility of the Employer. All questions concerning travel and relocation should be directed to the TBS.

The responsibility for travel and relocation costs incurred while considering or appointing priority persons varies according to the situation. Typically, the hiring organization pays the costs for leave of absence priority persons.

Priority persons are encouraged to speak to their organization's HR staff for advice on eligibility for travel or relocation expenses.

For further information, consult the NJC Travel Directive and the NJC Relocation Directive.

These Directives are the responsibility of the Employer and all questions concerning their application and interpretation should be directed to the TBS.