Archived - Guidance Series - Official Languages in the Appointment Process
Document Status:
Draft: Working version
Effective Date:
December 2005
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Table of Contents
- Introduction
- Choice of appointment process
- Area of selection
- Advertising appointment processes
- Assessing qualifications
- 5.1 Official language proficiency of the persons responsible for the assessment
- 5.2 Assessment of qualifications other than those relating to language
- 5.3 Assessment of proficiency in the official languages
- 5.3.1 Appointments requiring knowledge and use of English or French only (unilingual positions)
- 5.3.2 Appointments requiring knowledge and use of English and French (bilingual positions)
- 5.3.3 Assessment of specialized or expert proficiency in the official languages
- 5.3.4 Appointments to positions requiring proficiency in either French or English (also known as either/or positions)
- 5.4 Assessment of proficiency in a language other than the official languages
- Informal discussions
- Selection and appointment
- Notification for an internal appointment process
- Corrective action and revocation
- Situations following appointment
- 10.1 Language training as a result of an agreement to become bilingual
- 10.2 Extension of the exclusion period under the Public Service Official Languages Exclusion Approval Order (1981)
- 10.3 Extension of the agreement period under the Public Service Official Languages Appointment Regulations (2005)
- 10.4 Appointment to another bilingual position during the agreement period
- 10.5 Inability to attain the required level of second official language proficiency
Appendices
This document aims to incorporate, in a single text, the legal, regulatory and policy requirements and the considerations pertaining to the official languages. It complements the Public Service Commission's Policy on Official Languages in the Appointment Process, but is not intended as a legal interpretation of official language obligations. It should enable readers to better understand official language requirements and considerations when conducting an appointment process.
Legal, regulatory or guideline requirements
- The Canadian Charter of Rights and Freedoms confirms the equality of status of English and French, Canada's two official languages. It guarantees equal rights and privileges as to the use of the two official languages in federal institutions.
- The Official Languages Act, which has a quasi-constitutional authority, sets out the language rights and principles entrenched in the Canadian Charter of Rights and Freedoms. The Act contains provisions concerning communications with and services to the public (Part IV), language of work (Part V), participation of English-speaking and French-speaking Canadians (Part VI) and the advancement of English and French (Part VII). It also stipulates that objectivity must govern the establishment of official language requirements for positions in the Public Service (section 91).
- The preamble to the Public Service Employment Act stipulates that
- Canada will continue to gain from a public service that is able to serve the public in their official language of choice, and
- the Government of Canada is committed to a public service that embodies linguistic duality.
- The definition of merit contained in the Public Service Employment Act specifies that official language proficiency is an essential qualification for applying the merit principle. This means that official language proficiency may not be regarded as an asset, an operational requirement or an organizational need.
- The Public Service Employment Act also provides that an examination or interview, when conducted for the purpose of assessing qualifications other than proficiency in French, English or a third language, shall be conducted in the official language or languages of choice of the person concerned. The assessment of language qualifications, namely in English, French, both English and French or a third language, shall be conducted in the language or languages required for the work to be done.
Practical tips or interpretation
- The Canadian Charter of Rights and Freedoms, the Official Languages Act and the Public Service Employment Act shape the official language requirements and considerations that are taken into account in an appointment process.
Legal, regulatory or guideline requirements
- Under the Official Languages Act, the Government of Canada is committed to ensuring that English-speaking Canadians and French-speaking Canadians, without regard to their ethnic origin or first language learned, have equal opportunities to obtain employment and advancement in federal institutions. In accordance with this commitment, any person who participates in an appointment process is entitled:
- to communicate and receive available information and services in the official language or languages or his or her choice, including:
- advertisements of employment opportunities and related information;
- notification of being eliminated from consideration for appointment and notification of the name of the person being considered or proposed for appointment;
- any informal discussion resulting from being eliminated from consideration for appointment
- the oath or solemn declaration; and
- any other communication associated with the appointment process.
- to take any examination or interview to assess their qualifications, other than language, in the official language or languages of his or her choice.
- to communicate and receive available information and services in the official language or languages or his or her choice, including:
- The requirement to communicate and to provide information and services in the chosen official language or languages applies to all appointment processes, regardless of the location of the position or its official language proficiency requirements.
Practical tips or interpretation
- Those responsible for the appointment process must therefore ensure that participants in the process can communicate and receive available information and services in either of the two official languages. There are various ways of fulfilling this obligation, such as making sure that regularly and widely used documents (appointment process advertisement, statement of merit criteria, oath or solemn affirmation, etc.) are prepared and made available simultaneously in both English and French.
Practical tips or interpretation
- For every appointment to a position that requires the knowledge and use of both official languages (bilingual position), the deputy head must determine whether the appointment to the position does or does not require proficiency in both official languages at the time of appointment, and must also determine, where applicable, the levels required.
- According to the requirements of Treasury Board official language policies and directives, a person appointed to a bilingual position may, on an exceptional basis, not be required to have, at the time of appointment, the proficiency level in both official languages that the position requires. Use of non-imperative appointments for Executive Group positions must be approved by the deputy head and, for all other positions, by the assistant deputy minister or other assistant deputy head titles.
- Where the deputy head determines that the person appointed does not need, at the time of appointment, the required level or proficiency in both official languages (non-imperative appointment), he or she thereby agrees to assume, at the outset of the appointment process, the following obligations should the person be appointed as a result of an agreement to become bilingual:
- to ensure that the person receives the necessary language training during the two-year agreement period; and
- to appoint or deploy the person to a position for which the person meets the essential qualifications and whose level and salary are similar to those of the bilingual position, in the event that the person does not meet the required proficiency level in the official languages by the expiry of the two-year agreement period, regardless of who provides the language training.
- If the deputy head cannot agree to assume these two obligations from the start of the appointment process, use of a non-imperative appointment is inappropriate.
- Before approving the use of a non-imperative appointment, thought should first be given to expanding the area of selection, in order to include a sufficient number of candidates who are likely to meet the official language proficiency requirements.
Legal, regulatory or guideline requirements
- The Public Service Employment Regulations (PSER) provide the following exclusions from the application of merit with respect to official language proficiency:
- for one or more acting appointments of less than four months in total to a vacant bilingual position that cannot be filled with an acting appointment of a person who meets the required official language proficiency qualification;
- for one or more acting appointments of less than four months to an encumbered bilingual position;
- for one or more acting appointments of four months or more but not more than twelve months in total to an encumbered bilingual position that cannot be filled with an acting appointment of a person who meets the required official language proficiency qualification;
- for one or more acting appointments of four months or more but not more than eighteen months in total to a bilingual position, while the incumbent is on language training, that cannot be filled with an acting appointment of a person who meets the required official language proficiency qualification; and
- any acting appointment to a bilingual position in a rotational system.
Legal, regulatory or guideline requirements
- Under the Official Languages Act, the federal government is also committed to ensuring that the composition of the workforce of federal institutions tends to reflect the presence of both the official language communities of Canada, taking into account the characteristics of individual institutions, including their mandates, the public they serve and their location. Given the federal government's commitment to ensuring the participation of Canadians from both linguistic communities, every effort should be made to ensure that the area of selection includes a large enough number of potential candidates from both official language communities.
Practical tips or interpretation
- If the established area of selection does not include a large enough number of candidates from both official language communities, thought should be given to expanding the area of selection so that it will include enough potential candidates from both communities.
Legal, regulatory or guideline requirements
- Appointment processes must be advertised in both official languages, unless:
- The advertisement concerns an internal appointment process, the region is unilingual for the purposes of language of work and the work to be done only requires knowledge and use of that region's language.
- The employment opportunity is not advertised on the Web site http://jobs-emplois.gc.ca/ or on the Government of Canada staff Extranet site http://publiservice.gc.ca.
- Where the advertisement concerning an internal appointment process is communicated in only one official language, it should be made known, in the other official language, that the information will be made available in that language on request, within a minimal period of time. This information must appear in the advertisement itself, so as not to disadvantage a participant requesting information in the other official language.
- In addition to meeting the requirements of PSC policy on official languages, deputy heads are also required to abide by the provisions of the Official Languages Act regarding advertisements aimed at members of the public. In particular, where print media are used to advertise an external appointment process anywhere in Canada, the advertisement must be made in both official languages, as follows:
- The advertisement must appear in publications in general circulation in each of the regions covered, the English-language version in at least one publication that appears wholly or mainly in English, and the French-language version in at least one publication that appears wholly or mainly in French, where possible.
- Only in the event that such publications are not available, the advertisement must be published in bilingual format in at least one publication in general circulation in the region covered.
Practical tips or interpretation
- Any person who participates in an appointment process is entitled to communicate and receive information and available services in the official language or languages of his or her choice. In the advertisement, people should be asked to state, on their job application, their first official language and the official language or languages of their choice.
- When in doubt, communicate the advertisement of the appointment process in both official languages.
Legal, regulatory or guideline requirements
- Deputy heads must ensure that the persons responsible for the assessment have the required official language proficiency, so that effective communication may take place with the persons to be assessed, in the official language or languages of their choice, and so that their qualifications may be accurately assessed.
Practical tips or interpretation
- The second language proficiency level required of those responsible for the assessment depends on the technical or specialized nature of the position and on the complexity of the relations and communications with the person to be assessed. Deputy heads are responsible for determining the official language proficiency level required, so that qualifications may be accurately assessed on the basis of these two criteria.
Legal, regulatory or guideline requirements
- Assessment of qualifications other than official language proficiency will take place in English, in French or in both languages, as the candidate prefers, regardless of the location of the position or its requirements in terms of official language proficiency.
- Failure to assess a person in the official language or languages of his or her choice may be subject to a complaint to the Public Service Staffing Tribunal.
Practical tips or interpretation
- For the purposes of the appointment process, "language" means knowledge and use of English, or French, of both English and French or of a third language deemed necessary for the work to be done.
Legal, regulatory or guideline requirements
- For each appointment, the proficiency in English, in French or both must be assessed, as required for the work to be performed.
Legal, regulatory or guideline requirements
- Examinations or interviews for the purpose of assessing the knowledge and use of English or French are held in that language. Such assessments are conducted by the person or persons responsible for the assessment.
- If the results of the assessment determine that the person does not meet necessary proficiency in the required official language, the person is deemed not to meet all the essential qualifications, and he or she cannot be considered for appointment.
Practical tips or interpretation
- Second Language Evaluation (SLE) tests may not be used to assess official language proficiency for appointments requiring proficiency in English or in French only. Nevertheless, general second official language proficiency in reading, writing and oral interaction may be used by the manager as a guide in setting the official language proficiency requirements for the work to be performed.
- The assessment of the proficiency in English or in French may be conducted by means of other tools used during the process or through a separate assessment designed to determine the candidate's proficiency in the language in question.
- Where a candidate for a unilingual position has asked to be assessed in the other official language, the persons responsible for the assessment must conduct a separate assessment in the required official language of the unilingual position, for the sole purpose of determining his or her proficiency in that official language.
5.3.2.1 Assessment of proficiency in the first official language
Legal, regulatory or guideline requirements
- For each appointment, the manager must set the official language proficiency levels required for the work to be done.
- Assessment of a person's proficiency in his or her first official language must be conducted in that language by those responsible for the assessment.
- If the results of the assessment determine that the person does not meet necessary proficiency in his or her first official language at the level set by the manager, the person is deemed not to meet all the essential qualifications, and he or she cannot be considered for appointment.
Practical tips or interpretation
- A person's first official language is the official language with which he or she identifies. As a general rule, this is also the official language in which the person is the most proficient. In cases of doubt as to the first official language, the persons responsible for the assessment may request that SLE tests be administered in both languages. In such a situation, the language in which the person obtains the highest SLE marks is deemed to be his or her first official language. Conversely, the language in which the person obtains the lowest SLE marks is deemed to be his or her second official language. For example, if a person obtains a CBC rating for English-language SLE and BBA for the French-language SLE, his or her first official language is considered to be English and French is considered to be his or her second official language.
- Assessment of proficiency of the person's first official language may be conducted by means of assessment tools used during the process or through a separate assessment designed to determine the candidate's proficiency in his or her first official language.
5.3.2.2 Assessment of second official language proficiency - Second Language Evaluation (SLE) tests
The assessment of second official language proficiency applies to any appointment for an indeterminate period or for a specified term period to a bilingual position that is subject to the application of section 30 of the Public Service Employment Act (PSEA). The assessment is conducted by means of the SLE tests of the Public Service Commission (PSC) or through some other instrument approved by the PSC for the assessment of official second language proficiency on a "meets/does-not-meet" rating basis.
Legal, regulatory or guideline requirements
- SLE testing consists of three separate tests designed to evaluate the general proficiency level (A, B or C) in the second official language in regard to three separate language skills: reading, writing and oral interaction.
- Where the proficiency level in both official languages is required at the time of appointment (imperative appointment) and the person does not have satisfactory SLE results, the person is deemed not to meet all the essential qualifications, and he or she cannot be considered for appointment.
- Where the appointment does not require the proficiency level required in both official languages at the time of appointment (non-imperative appointment) and the person does not have satisfactory SLE results, in order to be appointed, the person must:
- submit an agreement to become bilingual;
- be excluded on medical grounds; or
- submit his or her resignation if eligible for an immediate annuity.
Practical tips or interpretation
- The SLE testing requirement does not apply to extensions of specified term appointments, the appointment of students or to the appointment of casual workers:
- in accordance with subsection 58(2) of the PSEA, the extension of a specified term appointment does not consitute an appointment;
- in accordance with the Student Employment Programs Regulations, the appointment of students is excluded from certain provisions of the PSEA;
- in accordance with subsection 50(3) of the PSEA, the provisions of the Act do not apply to casual workers.
- When conducting an imperative appointment process, it may be preferable to administer the SLE tests at the beginning of the appointment process.
5.3.2.2.1 Exemption from assessment of second official language proficiency
Legal, regulatory or guideline requirements
- Where a person's results on SLE tests warrant, the PSC may grant an indefinite exemption regarding each of the three language skills (reading, writing, oral interaction).
- Under such an exclusion, the person does not have to undertake further second official language assessment for the skills in question (reading, writing and oral interaction). However, this exclusion does not apply to the assessment of specialist or expert language skills (code P), which is conducted by means of instruments specially designed for the position or position type to be staffed.
5.3.2.2.2 Modified SLE tests
Practical tips or interpretation
- Modified SLE tests may be administered:
- to persons whose physical or psychological disability would interfere with the demonstration of their second language skills on standard SLE tests administered under standard testing conditions; or,
- to persons who develop, administer or score SLE reading and writing tests.
5.3.2.2.3 Review of scores and reassessment of SLE test results.
Legal, regulatory or guideline requirements
- Persons may request in writing a review of marks or a reassessment of SLE tests within 10 working days following the date on which the results were communicated to them.
- A person may ask to take the SLE tests over again if the PSC agrees that the first tests were not administered under appropriate conditions. Such a request in no way restricts the right to lay a complaint before the Public Service Staffing Tribunal. If the allegations concern SLE tests, the PSC's Personnel Psychology Centre (PPC) must be informed and contacted for advice on the matter.
- In a reassessment of SLE tests, persons are retested on those parts of the SLE (reading, writing or oral interaction) in which they were not successful.
- SLE tests may not be administered again within the same appointment process, unless the PSC decides otherwise.
5.3.2.2.4 Period of validity of SLE test results
Legal, regulatory or guideline requirements
- The results of SLE tests are valid for five years unless an employee is exempted from undertaking further second official language assessment. When this time period expires, the SLE results of an employee who has not obtained an exemption from taking further SLE are deemed to be valid for an indefinite period solely with regard to the position held by the person, as long as the linguistic profile of the position has not been raised above the employee's skill level.
- However, SLE results that are over five years old will be deemed valid where:
- the results were valid at the time the persons concerned were notified of the name of the person appointed or proposed for appointment (second notification), in accordance with subsection 48(3) of the PSEA;
- a bilingual incumbent of a bilingual position is appointed to his or her own reclassified position; or,
- an employee is stationed abroad for the duration of the posting.
- between April 3, 2012 and March 31, 2015 inclusively, a surplus employee or a person entitled to a lay-off priority is appointed to a bilingual position; or an employee is appointed or deployed to a bilingual position as a result of an alternation.
- This is subject to obtaining new, valid SLE test results that meet the linguistic profile of the position within 12 months of the appointment or deployment.
- Should the employee not obtain such SLE test results by the end of the 12-month period, the employee will be appointed on an indeterminate basis to a position for which the employee meets the merit criteria and that is of a similar level and salary as the bilingual position, or will be deployed on an indeterminate basis to a position for which the employee meets the job requirements, including official languages proficiency, that is of a similar level and salary as the bilingual position (to be addressed in the letter of offer).
- Questions and answers.
Practical tips or interpretation
- If a manager wishes to appoint a person to a bilingual position on an acting basis for more than four months, and the results of the SLE tests have expired, the person is required to take the SLE tests in view of the acting appointment.
Legal, regulatory or guideline requirements
- Specialized or expert proficiencies in the official languages, identified by the P code in the linguistic profiles of bilingual positions are language-specific proficiencies beyond general proficiency in English, in French or in both languages. In particular, specialized or expert proficiency in the official languages includes:
- proficiencies normally acquired through specialized training, such as dictatyping, stenography, rereading texts, or the drafting, revision or correction of texts; and
- professional-level proficiency in one official language or in both, for example, the proficiency required to teach English or French, to translate or to interpret.
- Specialized or expert proficiency may be required in English, in French or in both languages, in regard to reading, writing and oral interaction. It should be noted that the P code only applies to bilingual positions.
- Any qualification that requires specialized or expert proficiency, and the language or languages required, must be clearly indicated in the statement of merit criteria.
- For each appointment, the manager must set the required specialized or expert proficiency levels required for the work to be done.
- The assessment of specialist or expert proficiency in English, in French or in both is conducted by the persons responsible for the assessment, using tools developed for this purpose either by the organization or by some other party. Nonetheless, the candidates retain the right to have their other qualifications assessed, in the official language or languages of their choice.
- SLE tests are not used to assess specialized or expert proficiency.
- If the results of the assessment determine that the person does not meet necessary specialized or expert proficiency in the language or languages required for the work to be performed, the person is deemed not to meet all the essential qualifications, and he or she cannot be considered for appointment.
Practical tips or interpretation
- For appointments to a position that requires the general knowledge and use of English and French (bilingual positions), specialized or expert proficiency replaces any level of general proficiency (A, B or C) that might otherwise have been specified.
5.3.4 Appointments to positions requiring proficiency in either French or English (also known as either/or positions)
Legal, regulatory or guideline requirements
- For every appointment, the manager must set, in each of the two official languages, the proficiency levels that are required for the work to be done.
- Examinations or interviews designed to assess the knowledge and use of English or French are held in the language chosen by the person who is the subject of the assessment. Such assessments are conducted by the person or persons responsible for the assessment.
Practical tips or interpretation
- Second Language Evaluation (SLE) tests may not be used to assess official language proficiency for appointments requiring proficiency in either English or French. Nevertheless, general second official language proficiency as assessed by the SLE may be used by the manager as a guide in setting the official language proficiency requirements for the work to be performed.
- The proficiency in English or French may be assessed by means of other tools used during the process or through a separate assessment designed to determine proficiency in the official language or languages chosen by the person.
- If the results of the assessment determine that the person does not meet necessary proficiency in the chosen official language or languages at the level set by the manager, the person is deemed not to meet all the essential qualifications, and he or she cannot be considered for appointment.
Legal, regulatory or guideline requirements
- For an appointment requiring proficiency in a language other than the official languages, the manager must set the proficiency level required, in the language in question, for the work to be done.
- Exams or interviews designed to assess the language proficiency are held in that language. Such assessments are conducted by the person or persons responsible for the assessment.
Practical tips or interpretation
- Unlike proficiency in the official languages, proficiency in a language other than English or French may be determined to be an essential qualification or a qualification that is an asset for the work to be done.
Legal, regulatory or guideline requirements
- Any informal discussion resulting from being informed that a person has been eliminated from consideration for appointment takes place in the official language or languages chosen by that person.
Practical tips or interpretation
- The persons responsible for such informal discussions must have the required proficiency in the official language or languages, so that there can be frank and effective communication in the official language or languages chosen by the person who is informed that he or she has been eliminated from consideration for appointment.
Legal, regulatory or guideline requirements
- Deputy heads must ensure that persons who are appointed or proposed for appointment have all the essential qualifications, except for official language proficiencies in so far as they are excluded, under the Public Service Official Languages Exclusion Approval Order, from having to possess the proficiency level required in the second official language.
A non-imperative appointment is an appointment for an indeterminate period to a bilingual position identified by the deputy head as not requiring, at the time of appointment, the level of proficiency in both official languages that is required to hold the position.
Legal, regulatory or guideline requirements
- In regard to non-imperative appointments, the Public Service Official Languages Exclusion Approval Order (PSOLEAO) provides for three circumstances in which a unilingual person is excluded from having to meet official language proficiency requirements at the time of appointment :
- exclusion as a result of an agreement to become bilingual;
- exclusion on medical grounds;
- exclusion for persons eligible for an immediate annuity.
- In order to be considered for a non-imperative appointment, a person must first demonstrate that he or she meets the level of proficiency required in his or her first official language, according to the level set by the manager. This assessment will be carried out by the assessment board.
- The exclusions provided for in the PSOLEAO only apply to general proficiency (namely A, B or C) in the official languages. They do not apply to specialized or expert proficiency in the official languages, as indicated by the code P.
- The exclusions provided for in the PSOLEAO do not apply to term appointments or to casual workers.
- Persons appointed for a specified term must meet the required proficiency in the official languages at the time of their appointment.
- Since the appointment of casual workers is excluded from application of the Act, these workers do not have to possess the required proficiency in the official languages.
Practical tips or interpretation
- The exclusions of the PSOLEAO do not apply to deployments. However, the Treasury Board's Directive on the Staffing of Bilingual Positions specifies that the PSOLEAO rules apply, with the necessary accommodation that deployments require.
- The fact that a person meets or possesses a higher level of language proficiency is not to be taken into account in the context of a non-imperative appointment process.
- Since the modification of the official language proficiency requirements of an encumbered unilingual position and the modification of the language proficiency level of an encumbered bilingual position do not constitute appointment, these measures are not exempted under PSOLEAO. Incumbents of unilingual positions whose official language proficiency requirements are modified and incumbents of bilingual positions whose official language proficiency level is raised are subject to the provisions of the policies and directives relating to the employer, in this case the Treasury Board.
Legal, regulatory or guideline requirements
- The exclusion as a result of an agreement to become bilingual applies to persons who have the required proficiency level in only one of the two official languages (unilingual persons) and who agree in writing:
- to undertake to attain the level of official language proficiency required for the bilingual position, through language training at public expense, within a period of two years; and
- to be appointed or deployed on an indeterminate basis to a position for which the person meets the essential qualifications and that is of a similar level and salary as the bilingual position if, at the end of the two-year period, he or she has not attained the level of language proficiency required for the bilingual position.
- The deputy head must:
- ensure that the person receives the necessary language training during the two-year period; and
- appoint or deploy the person on an indeterminate basis within two months after the end of the two-year period to a position for which he or she meets the essential qualifications and that is of a similar level and salary as the bilingual position, in the event that the person does not meet the required proficiency level in the official languages by the expiry of the two-year period.
- The two-year agreement period begins on the date that the appointment becomes effective or on the date of the written appointment agreement, whichever is later.
- Example 1: A written appointment agreement is signed by the person appointed and by the deputy head on June 7, and the agreement provides that the appointment will become effective on June 27. In this case, the agreement period begins on the date that the appointment becomes effective, namely June 27.
- Example 2: A written appointment agreement is signed by the person concerned and by the deputy head on June 7, and the agreement provides that the appointment became effective on April 1 (retroactive appointment). In this case, the agreement period begins on the date of the written appointment agreement, namely June 7.
- The statement of agreement to become bilingual must be completed and signed by the deputy head and by any unilingual person considered for a non-imperative appointment who does not meet the required level of proficiency in the official languages or is not otherwise excluded from meeting these requirements:
- before the appointment of the person to the bilingual position, in the case of an external appointment process; or
- before notification of the name of the person considered for appointment, in the case of an internal appointment process.
- No period of leave of more than 60 calendar days is included in the two-year period of the agreement to become bilingual.
- In the event that the person is appointed to another bilingual position requiring the same or a lower level of second language proficiency during the two-year period, the two-year period referred to in the first agreement applies to the subsequent appointment.
Practical tips or interpretation
- "Language training at public expense" means that the language training is not at the expense of the person who is agreeing to become bilingual. Such training is paid for by the organization or by the Canada School of Public Service (CSPS).
- A new two-year period applies in the event that the person is appointed to another bilingual position requiring a higher level of second language proficiency during the two-year period referred to in the first agreement to become bilingual.
Legal, regulatory or guideline requirements
- The PSC retains the power to authorize the exclusion of a person on medical grounds. The deputy head may not appoint a person excluded on medical grounds without the authorization of the PSC.
- Before excluding a person on medical grounds, the organization must implement the necessary accommodation measures in accordance with the Directive on Language Training and Learning Retention and Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service. Where health problems, learning impairments or hearing disorders are involved, the organization must demonstrate that the person is unable to attain the required level of second official language proficiency.
- Where a person is unable to learn the language because of health problems or learning impairments, this person is assessed by Health Canada, which subsequently makes its recommendations on the ability to learn the second official language and determines, where applicable, the necessary accommodation measures. With respect to hearing disorders, this person is assessed by the Canadian Hearing Society.
- Health Canada and the Canadian Hearing Society are the PSC's main providers of analysis and advice in terms of the medical assessment of these persons or the review of specialist reports. Health Canada will conduct its assessments according to the "Fitness to Work Protocol" of the Workplace Health and Public Safety Program.
- Detailed procedures for submitting a request for an exclusion on medical grounds can be found at: http://www.psc-cfp.gc.ca/plcy-pltq/psoleao-delofp/index-eng.htm#frm.
Practical tips or interpretation
- The exclusion on medical grounds applies to unilingual persons who, because of a long-term or recurring physical, mental or learning impairment, are unable to attain the required level of official language proficiency through language training.
- An exclusion on medical grounds only applies to the non-imperative appointment for which it is granted.
- An exclusion on medical grounds may be granted to a person who has submitted an agreement to become bilingual if it is determined that the person is not able to attain the required level of proficiency in the official languages through language training because of a permanent or recurrent physical, mental or learning disability. Such an exclusion has the effect of cancelling any agreement to become bilingual.
Legal, regulatory or guideline requirements
- The exclusion for persons eligible for an immediate annuity applies to unilingual persons who, under the Public Service Superannuation Act, are eligible for the annuity within two years following their appointment and who submit an irrevocable resignation effective no more than two years from the date of appointment to the bilingual position.
- The resignation in view of an exclusion for persons eligible for an immediate annuity must be submitted to and accepted by the deputy head:
- before the appointment of the person to the bilingual position, in the case of an external appointment process; or
- before the notification of the name of the person considered for appointment, in the case of an internal appointment process.
Practical tips or interpretation
- In other words, the exclusion for persons eligible for an immediate annuity applies to persons who choose the submit an irrevocable resignation effective no more than two years from the date of appointment and who
- are 58 years of age or older at the time of appointment; or
- are between 53 and 58 years of age and have at least 28 pensionable years of service at the time of appointment.
- A person who is eligible for an immediate annuity is not required to submit his or her resignation in order to be considered for a non-imperative appointment. This person may chose to submit an agreement to become bilingual. This person may also be excluded on medical grounds because of a long-term or recurring physical, mental or learning impairment that rendered him or her unable to attain the required level of official language proficiency through language training.
- A person who has submitted a commitment to become bilingual and who becomes eligible for an immediate annuity within the two year commitment period cannot, at that time, choose to submit his or her resignation and be exempted on the ground of his or her eligibility for an immediate annuity.
- The resignation in view of an exclusion for persons eligible for an immediate annuity may be conditional on the person being appointed to the bilingual position.
Legal, regulatory or guideline requirements
- Notification of the names of persons being considered for appointment, and of the names of persons being proposed for appointment, or being appointed, is communicated in both official languages or in the official language of choice of the persons notified.
- The notification of the names of persons being considered for appointment, and of the names of persons being proposed for appointment, or being appointed may only be issued when it has been determined that every candidate:
- meets the required official language proficiency in English, in French or in both languages; or
- is excluded from meeting the requirements of proficiency in the second official language by reason of an agreement to become bilingual, an exclusion on medical grounds or eligibility for an immediate annuity in accordance with the Public Service Official Languages Exclusion Approval Order.
Practical tips or interpretation
- When in doubt, communicate the notification in both official languages.
Legal, regulatory or guideline requirements
- Given the fact that every person is entitled to participate in an appointment process in the official language or languages of his or her choice, all oral or written communications for the purposes of a corrective action or revocation must be in English or in French, or in both languages, at the choosing of the persons concerned, regardless of the type of process, the location of the position or any requirements of the position in regard to proficiency in the official languages.
Legal, regulatory or guideline requirements
- Deputy heads must monitor the use of the Public Service Official Languages Exclusion Approval Order and make sure that the provisions of the Public Service Official Languages Appointment Regulations are observed. This implies that deputy heads must put in place internal control mechanisms to:
- ensure that the persons who submitted an agreement to become bilingual receive the necessary language training at public expense to attain the required level of official language proficiency during the two-year period referred to in this agreement;
- monitor persons taking language training and check on their progress; and
- appoint or deploy the person on an indeterminate basis within two months after the end of the two-year period to a position for which he or she meets the essential qualifications and that is of a similar level and salary as the bilingual position, in the event that the person does not meet the required proficiency level in the official languages by the expiry of the two-year period.
Legal, regulatory or guideline requirements
- Deputy heads must ensure that the persons who submitted an agreement to become bilingual receive the necessary language training at public expense to attain the required level of official language proficiency during the two-year period referred in this agreement.
Practical tips or interpretation
- According to the Treasury Board's Directive on Language Training and Learning Retention, a person who has submitted an agreement to become bilingual and who is appointed to a position in the Executive Group must take language training and complete it before assuming the duties of his or her position. In exceptional cases, and with the written approval of the institution's deputy head, the person may begin the training later, but must still do so within the time limits prescribed by the order:
- where the institution is facing an important and immediate operational need, or
- in the case of an appointment or deployment to a unilingual region, if language training is not immediately available.
- For other positions, it is strongly recommended in the Directive that the person begin language training before assuming the duties of the position, or as soon as possible if delays arise as a result of the availability of the courses offered by the training supplier.
- Language training may be dispensed by the organization, by the Canada School of the Public Service (CSPS), by a private supplier or by a combination of these, depending on the cost-effectiveness and efficiency of the modes of language training. The objective is that the person attain the required level of proficiency in the official languages during the two-year period referred to in the agreement to become bilingual.
- Where the manager, after consultation with the person concerned and the supplier of the language training, determines that it is unlikely that the person will attain the required level of proficiency in the official languages within the prescribed time limits, the organization must take appropriate action, namely:
- implement the necessary accommodation measures as stipulated in the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service;
- appoint or deploy the person, with his or her consent, to a position for which he or she meets the essential qualifications, including official language proficiency, as well as any asset qualifications, operational requirements and organizational needs used to make the appointment decision;
- extend the agreement period for a period not to exceed two years if it is indicated by a qualified specialist that the person is capable of attaining the required level of proficiency in the official languages, but not within the initial two-year period because of a physical, mental or learning disability that is detrimental to the learning of the second official language to the required level of proficiency; or
- submit a request for an exclusion on medical grounds if it is indicated by a qualified specialist that the person is not capable of attaining, through language training, the required proficiency in the official languages because of a permanent or recurrent physical, mental or learning disability.
10.2 Extension of the exclusion period under the Public Service Official Languages Exclusion Approval Order (1981)
Legal, regulatory or guideline requirements
- Although the Public Service Official Languages Exclusion Approval Order (1981) has been revoked, it still applies to:
- persons who submitted an agreement to become bilingual before December 31, 2005; and
- persons who submitted an agreement to become bilingual for the purposes of a non-imperative appointment resulting from a selection process that was in progress at December 31, 2005.
- The authority to extend the exclusion period, during which an employee, other than a member of the Executive group (EX), is exempted from the obligation to meet official language proficiency requirements, is delegated to the deputy head.
- Any extension of the exclusion period as it affects incumbents of Executive Group (EX) positions must be approved by the PSC.
- The two-year exclusion period under the Public Service Official Languages Exclusion Approval Order (1981) is only extended in exceptional or unforeseen circumstances.
Practical tips or interpretation
- Persons who have submitted an agreement to become bilingual under the Public Service Official Languages Exclusion Approval Order (1981) are subject to the provisions of that order for the period during which they occupy the bilingual position.
- Generally speaking, the duration of this period of extension should be limited to one year.
- For positions that are not part of the Executive Group, it is recommended that the deputy head rely on the criteria set out in the Public Service Official Languages Appointment Regulations when extending an exclusion period. These criteria are as follows:
- exceptional operational requirements that were not foreseeable at the time of the appointment;
- exceptional personal circumstances that were not foreseeable at the time of the appointment;
- a physical, mental or learning impairment that hinders the learning of the other official language at the required level of proficiency; or
- the inability to obtain language training at the expense of the organization or of the Canada School of the Public Service (CSPS).
10.3 Extension of the agreement period under the Public Service Official Languages Appointment Regulations
Legal, regulatory or guideline requirements
- The authority to extend the agreement period is delegated to the deputy head.
- For Executive Group (EX) positions, this authority must be exercised by the deputy head and may not be subdelegated to a lower echelon of the organization.
- For positions that are not part of the Executive Group, this authority may be subdelegated only to persons occupying a position at the assistant deputy minister level and to other assistant deputy head titles.
- The duration of the extension of the agreement period must reflect the time that the person is likely to need to attain the required level of second official language proficiency.
Practical tips or interpretation
- If a person who has submitted an agreement to become bilingual pursuant to the Public Service Official Languages Exclusion Approval Order is unable to attain the required level of proficiency within the initial two-year agreement period, this period is extended for one or more periods whose total duration shall not exceed two years, for one of the following reasons:
- exceptional operational requirements that were not foreseeable at the time of the appointment;
- exceptional personal circumstances that were not foreseeable at the time of the appointment;
- a physical, mental or learning impairment that hinders the learning of the other official language at the required level of proficiency; or
- the inability to obtain language training at public expense, ie; the organization or the Canada School of the Public Service (CSPS).
- The agreement period may be extended more than once and for more than one reason, provided that the total duration of such extensions does not exceed two years.
- "Exceptional and unpredictable operational requirements at the time of appointment" are operational requirements that could not be planned or foreseen at the time of appointment, such as need to deal with an unforeseen crisis that might pose a threat to public health or safety. On the other hand, the agreement period may not be extended due to special initiatives of a recurrent nature or because of a special project that could have been foreseen at the time of appointment, such as a legislative review.
- The agreement period may not be extended because of the inability of the CSPS to provide the necessary language training during the initial two-year agreement period. It is the deputy head's responsibility to ensure that the persons who have submitted an agreement to become bilingual receive at public expense, the language training they need to attain the required level of proficiency in the official languages during the two-year period referred to in the agreement to become bilingual, regardless of who provides the language training.
- A person who has submitted an agreement to become bilingual should be notified in writing, by the authorized manager, of any extension of the agreement period and of the new expiry date of the agreement period.
Legal, regulatory or guideline requirements
- In the event that the person is appointed to another bilingual position requiring the same or a lower level of second language proficiency during the two-year period, the two-year period referred to in the first agreement applies to the subsequent appointment.
Practical tips or interpretation
- A new two-year period applies in the event that the person is appointed to another bilingual position requiring a higher level of second language proficiency during the two-year period referred to in the first agreement to become bilingual.
Practical tips or interpretation
- In the event that a person who submitted an agreement to become bilingual does not attain, within the two-year period provided for in the agreement, the level of proficiency in the official languages required for the position, the deputy head is required to appoint or deploy that person. This appointment or deployment shall be made on an indeterminate basis within two months following the expiry of the agreement period, to a position for which the person meets the essential qualifications and that is of a similar level and salary to that of the bilingual position. This period of two months may not be extended.
- The deputy head may not appoint or deploy a person who has submitted an agreement to become bilingual before the end of the agreement period, including any extension of that period, without the consent of the person.