Part II, Chapter 2: Surplus Employees
2.1 Legal Basis
There are two types of priority entitlement for surplus employees:
- When being considered for appointment in their home organization, the person with a priority entitlement derives their entitlement from the Public Service Employment Act (PSEA), section 40; and
- When being considered for appointment in organizations other than their home organization, the entitlement is derived from the Public Service Employment Regulations (PSER), section 5.
Note: It is important that organizations are aware of a surplus employee’s priority entitlement type when considering them for appointment. In their home organization, a surplus person with a priority entitlement has the second highest ranking priority entitlement possible, namely the statutory surplus priority entitlement under PSEA section 40, and is to be appointed after persons with a Canadian Armed Forces (CAF) medically released statutory priority entitlement (those whose medical release was attributable to service) as their statutory priority entitlement under PSEA sub-section 39.1(1) ranks them first in the priority entitlement order of precedence.
In an organization other than their home organization, the same person with a priority entitlement would only be entitled to be appointed after persons holding any of the statutory priority entitlements. This is because their priority entitlement in those organizations is a regulatory priority entitlement, from PSER section 5.
The PSEA and PSER provide a priority entitlement "for the duration of the surplus period" to employees who become surplus under the provisions of the Work Force Adjustment Directive (WFAD) and related agreements or the Directive on Career Transition for Executives.
These agreements are the responsibility of the Employer and all questions concerning their application and interpretation should be directed to the Treasury Board Secretariat (TBS).
2.2 The Entitlement
As mentioned, there are two types of priority entitlement for surplus employees:
- In their home organization:
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 personsFootnote 4 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
- Not in their home organization:
(1) An employee who has been advised by the deputy head that their services are no longer required but before any lay-off becomes effective is entitled to appointment in priority to all persons, other than those referred to in sub-section 39.1(1), section 40 and sub-sections 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.
2.3 Duration of Entitlement
"…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…"
(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
- the day on which the employee is appointed or deployed to a position in the public service for an indeterminate period,
- the day on which the employee refuses a reasonable job offer in the public service, and
- the day on which the employee is laid off.
Note: The start dates and durations of the various priority entitlements are set by the PSEA and/or PSER and cannot be altered. The calculation of the surplus period should be verified against the WFAD, WFAA and related collective agreements and any questions should be directed to the organization’s Work Force Adjustment coordinator or TBS.
The PSC will only begin referring the person with a priority entitlement once they are registered in PIMS. Late registration will reduce the effective period of the priority entitlement and may result in lost opportunities for the person.
2.4 Refusal of a Reasonable Job Offer (RJO)
When a surplus employee has been provided with a guarantee of a reasonable job offer (GRJO), it is the employee's home organization that determines whether the employee has violated any of the conditions of that guarantee, including a determination of whether a given job offer constitutes a reasonable job offer within the meaning of the WFAD, WFAA and related collective agreements. The home organization’s determination of whether a given job offer constitutes a reasonable job offer also applies to employees who did not receive a GRJO and chose option (a), the time limited surplus period. Refusal of a reasonable job offer in either of these circumstances will lead to lay-off of the employee.
2.5 Specified Term Appointment
Organizations that wish to offer specified period employment to a person with a priority entitlement, such as a secondment, assignment or term appointment, are encouraged to contact the PSC before proceeding to ensure that the person’s priority entitlement rights are respected.
2.6 Appointment to a Lower-Level Position (PSER and WFAA s)
A surplus employee appointed indeterminately to a lower-level position during the priority entitlement period has a reinstatement priority entitlement (PSER, section 10).
The surplus employee may be entitled to salary protection, as per the WFAD, WFAA and related collective agreements, until appointed to the original or equivalent level, during and after the reinstatement priority entitlement period. Questions on salary protection should be directed to TBS.
Note: The hiring organization must inform the PSC of the lower-level appointment by submitting a PIMS Referral Feedback Form or a PIMS Request for Priority Clearance to Appoint a Person with a Priority Entitlement. Once the lower-level appointment is made, the hiring organization is responsible for updating the person’s PIMS registration if they become eligible for the reinstatement priority entitlement.
2.7 Provisions of the Work Force Adjustment Agreements Related to Priority Administration
The WFAD, WFAA s and related collective agreements are the responsibility of TBS. For details and up-to-date text and interpretations, please consult TBS and the current WFAD, WFAA s and related Collective Agreements. They can be found on the Work Force Adjustment page of the TBS Web site.
These agreements are the responsibility of the Employer and all questions concerning their application and interpretation should be directed to TBS.
An employee with a surplus priority entitlement may be entitled to up to two years of retraining, pursuant to the WFAD, WFAA and related Collective Agreements. Retraining provisions of the WFAD/WFAA do not apply where an appointment constitutes a promotion.
In accordance with Part IV of the WFAD, it is the responsibility of the employee and the home or appointing organization to identify retraining opportunities. Retraining issues should be discussed with the organization’s Work Force Adjustment Coordinator and/or the responsible Human Resources Advisor or hiring manager.
The PSC refers persons with a surplus priority entitlement to positions for which they potentially meet the essential qualifications at the time of referral, not to positions where, with retraining, they would potentially meet the essential qualifications.
B) Travel and relocation
Travel and relocation costs are the responsibility of the Employer. All questions concerning travel and relocation should be directed to TBS.
Under the WFAD and related agreements, the home organization pays such costs for persons with a surplus priority entitlement.
For more detailed information, please consult the Work Force Adjustment section of the TBS Web site, the WFA appendices of related Collective Agreements, the National Joint Council (NJC) Travel Directive and Relocation Directive .
These are the responsibility of the Employer and all questions concerning their application and interpretation should be directed to TBS.
C) Related Provisions of the Directive on Career Transition for Executives (DCTE)
Details on the provisions for Executives can be found in the Directive on Career Transition for Executives. This Directive is the responsibility of the Employer and all questions concerning its application and interpretation should be directed to TBS.
2.8 Separate Agencies
The WFAD, WFAA s and related collective agreements do not apply to employees of separate agencies because TBS is not the Employer. Separate agencies have their own WFA regimes in place. If these organizations make their appointments under the PSEA, their employees may be eligible for priority entitlements.
In addition, if these separate agencies that make appointments under the PSEA have a policy that provides a surplus period before lay-off, then the surplus priority entitlement will apply to their employees for the period specified in the agency's policies. Otherwise, their employees are entitled to the lay-off priority entitlement, as well as being eligible for the other priority entitlements as defined by the PSEA.
The separate agencies subject to the PSEA are:
- The Financial Consumer Agency of Canada;
- Indian Oil and Gas Canada;
- The National Energy Board;
- The Correctional Investigator of Canada;
- The Office of the Superintendent of Financial Institutions Canada; and
- The Public Service Labour Relations Board.
2.9 Documents Required by the PSC to Support Registration
- The PIMS on-line Registration Form;
- Privacy Consent Form for Persons with a Priority Entitlement (keep in the employee’s personnel file);
- Signed Manager’s Attestation Form (keep in the employee’s personnel file);
- Letter declaring the employee surplus with a GRJO, specifying the start date. No end date is required; or
- Letter declaring the employee surplus with time limited surplus status, specifying the start and end date.
Note 1: All supporting documents to be provided to the PSC Priority Administration Advisor 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 person with a priority entitlement, it is not necessary to have a new attestation form signed by the new manager.
Please refer to LHHR (12-09) for the temporary measure put in place for the validity period of Second Language Evaluation (SLE) test results of those affected by the Work Force Adjustment as a result of Spending Review 2012. You can also refer to the PSC's Guidance Series – Official Languages in the Appointment Process (184.108.40.206.4 Period of validity of SLE test results).
- Footnote 4
Despite current wording for sections 40 and 41 of the PSEA, the Veterans Hiring Act (VHA) has amended the PSEA and the Public Service Commission (PSC) has amended the PSER such that 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 Armed 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. The PSER, as amended, will be available only upon the Coming into Force (CIF) of the VHA. As a result, it is not possible to reproduce it here at this time. This Guide will be updated to include the amended PSER as soon as possible after CIF of the VHA.
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