Official Languages

1. What is the difference between the Public Service Commission (PSC) Policy on Official Languages in the Appointment Process and Treasury Board Secretariat (TBS) official languages policies and directives?

The PSC Policy on Official Languages in the Appointment Process sets out the official language requirements within appointment processes. These requirements ensure that the linguistic rights of persons participating in an appointment process are respected; for example, the requirement to communicate information about appointment processes in both official languages. TBS policies cover such subjects as linguistic identification of positions, language of work, imperative and non-imperative staffing, etc. PSC policies flow from the rights, responsibilities and values of the Public Service Employment Act (PSEA). Both PSC and TBS policies flow from the rights and requirements contained in the Official Languages Act.

2. What are the linguistic rights of persons participating in an appointment process?

Persons participating in an appointment process are entitled:

• To communicate and receive available services and information in the official language of their choice, including:
  • Advertisement of employment opportunities and related information;
  • Communication regarding being eliminated from consideration for appointment;
  • Notification of the name of the person being considered for appointment or appointed or proposed for appointment;
  • A letter of offer;
  • Any informal discussion resulting from being eliminated;
  • The oath or solemn affirmation; and
  • Any other communication related to the appointment process.
• To have any examination or interview for the purpose of assessing their qualifications, other than language, in the official language of their choice (PSEA 37).

3. Does the requirement to communicate information concerning the appointment process in both official languages or in accordance with the linguistic preferences of each person, when these are known, apply to all appointment processes, regardless of the type of process, location of the position or the language requirements of the position?

Yes. The requirement to provide information concerning the appointment process in both official languages or in accordance with the linguistic preferences of each person, when these are known, applies to all appointment processes. An exception can be made to this when the information is to be communicated in a region that is unilingual for language-of-work purposes and the work to be performed only requires the knowledge and use of the language of that region. In these cases, when information concerning the appointment process is communicated in only one official language, it must be made known that the information is available in the other official language, on request.

4. Do managers have the discretion to require new Second Language Evaluation (SLE) tests of any employee at any time?

In order to ensure that linguistic obligations provided by the Official Languages Act are respected, managers and employees share a certain responsibility to ensure that employees maintain their linguistic proficiency. Managers may therefore ask an employee to be tested if there is evidence that the most recent SLE test results no longer reflect the actual competency of the employee, even if PSC policy does not require testing.

Managers are asked to use this discretion judiciously in the context of the Budget 2012, given the transition measure implemented by the PSC with respect to confirmation of SLE results. Specifically, between April 3, 2012 and March 31, 2015, for alternating employees and for employees with a surplus priority or persons with a lay-off priority, SLE test results that are over five years old are deemed valid, subject to confirmation within 12 months of the alternation or priority appointment (see below for questions and answers specific to this measure. Hiring managers who find themselves contemplating asking employees eligible for this measure to be tested are encouraged to consider the following additional factors:

• The confirmation of SLE results approach was designed to alleviate the stress of SLE testing for employees who are faced with job loss, with the understanding that the additional stress of language testing may create an artificial barrier to an accurate assessment of language proficiency;
• Managers are asked to focus on testing after appointment or deployment, as part of refresher training and test preparation, whenever possible;
• Hiring managers should first investigate the availability of resources in the employee’s home organization to defray the costs of this investment, in the case where the cost of refresher training and preparation is less than the cost of lay-off.

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Confirmation of Second Language Evaluation test results and workforce management

Between April 3, 2012 and March 31, 2015, for alternating employees and for employees with a surplus priority or persons with a lay-off priority, SLE test results that are over five years old are deemed valid, subject to confirmation within 12 months of the alternation or priority appointment. This was announced in Letter to Heads of Human Resources 12-09.

General

5. What is the intent of the confirmation of SLE test results?

This is a transition measure to provide organizations with a mechanism to balance the Canadian Charter of Rights and Freedoms and the Official Languages Act with the operational priority of the Budget 2012. Persons appointed must meet the official language proficiency requirements for the work to be performed, unless appointed on a non-imperative basis, pursuant to the Public Service Official Languages Exclusion Approval Order (PSOLEAO). The PSC expects that managers and employees will ensure that official language proficiency is maintained. At the same time, the PSC recognizes the need to provide employees who are involuntarily displaced from their position with additional time to obtain new SLE test results in the short term, as well as the need to alleviate the stress of SLE testing for employees who are faced with job loss.

6. Who is covered by SLE confirmation and when does it apply?

Employees eligible for alternation, employees entitled to a surplus priority and persons entitled to a lay-off priority between April 3, 2012, and March 31, 2015, inclusively, are covered by the SLE confirmation measure, as follows:

• For employees eligible for alternation, this measure applies for the duration of their eligibility period:
  • Starting on the day they are informed that they are eligible for alternation; and
  • Ending on the day their eligibility ceases.
• For surplus employees with a Guaranteed Reasonable Job Offer (GRJO), this measure applies during the period:
  • Starting on the day they begin their surplus priority entitlement; and
  • Ending on the day their surplus priority entitlement ends, when that period ends before March 31, 2015. When the surplus priority ends on or after March 31, 2015, the application of the measure ends on the day that is one year after the start of the priority entitlement. Should the surplus priority be followed by a lay-off priority, this measure will apply during the period of the lay-off priority only if the lay-off priority comes into effect on or before March 31, 2015.
• For time-limited surplus employees (i.e., without a GRJO), this measure applies during the period:
  • Starting on the day they begin their surplus priority entitlement; and
  • Ending on the day their surplus priority entitlement ends, when that period ends before March 31, 2015. When the surplus priority ends on or after March 31, 2015, the application of the measure ends on the day that is one year after the start of the priority entitlement. Should the surplus priority be followed by a lay-off priority, this measure will apply during the period of the lay-off priority only if the lay-off priority comes into effect on or before March 31, 2015.

7. Does SLE confirmation apply to non-imperative appointments?

Hiring managers decide at the outset of an appointment process whether the resulting appointment(s) will be made on an imperative or non-imperative basis. This decision is made based on the requirements of the position(s) being staffed and not on the language proficiency of any one candidate. It must respect the rules set out in the Treasury Board Secretariat Directive on the Staffing of Bilingual Positions.

If an employee or laid-off person who would be subject to this measure is considered in the context of non-imperative staffing, they should be treated as all other employees appointed on a non-imperative basis, in accordance with the PSOLEAO.

8. Can SLE confirmation apply to employees or laid-off persons who have never undertaken the SLE tests or to employees or laid-off persons who have SLE results that are lower than the linguistic profile of the position being staffed?

No. This measure is not an exemption from meeting the linguistic profile of the position. It is only an extension of the validity period of current SLE test results. Those with SLE results that are more than five years old are deemed to meet the linguistic profile of bilingual positions with proficiency levels that are equal to or lower than their SLE test results. It does not apply to employees who do not have SLE results. Similarly, they cannot be considered to meet the linguistic profile of a position that is higher than their SLE test results.

9. Can SLE confirmation apply to alternating employees, surplus employees or laid-off persons whose substantive position is unilingual, but who have SLE test results that are over five years old?

Yes. The application of this measure is based on the person and the position to which they are being appointed; it is not based on the language requirements of their substantive position. Therefore, the transition measure can apply, provided the alternating employee, surplus employee or laid-off person has SLE test results that are equal to or higher than the linguistic profile of the position being staffed.

10. Can a surplus priority with SLE test results at the CBC levels that are more than five years old be appointed or deployed to a position with a BBB linguistic profile?

Yes. The SLE confirmation decision states that this person’s SLE test results are deemed to be valid, and as they are higher than the linguistic profile of the position, the transition measure applies to them. They would be required to confirm their SLE test results at the BBB level or higher within the 12 months following their appointment or deployment.

11. Can SLE confirmation apply to employees who have been declared 'affected' in accordance with their workforce adjustment agreement or appendix, or in the context of a process for selection for retention or lay-off?

This measure does not apply to affected employees or to any employees other than those who are eligible for alternation or who have a surplus or lay-off priority entitlement between April 3, 2012 and March 31, 2015. It does not apply to a selection for retention or lay-off, since the employees are being selected for retention in their own position and SLE results are valid indefinitely for the purposes of one’s own position.

12. Does SLE confirmation apply to an ‘opting’ employee who is being considered for an appointment or deployment before making their option selection? 

No, this transition measure applies to an opting employee only for the alternation appointment or deployment.

13. Does SLE confirmation apply to the separate agencies whose appointments are not subject to the PSEA?

No. This measure applies to those organizations whose appointments are made pursuant to the PSEA.

14. Does SLE confirmation apply for specified period (term) appointments?

No, since a term or specified period appointment does not end the employee’s surplus or lay-off priority status, and is not applicable in an alternation, this measure does not apply.

15. Will SLE confirmation change the way in which employees entitled to a surplus or lay-off priority are referred to bilingual positions?

This transition measure will not change the way in which surplus employees and laid-off persons are referred by the PSC. If a bilingual position is being staffed on a non-imperative basis, then any surplus employee and laid-off person may be referred for consideration. If the position is being staffed on an imperative basis, then the surplus employee or the laid-off person must have SLE results equal to or higher than the linguistic profile of the position in order to be appointed or deployed. There may be cases where surplus employees or laid-off persons are referred to positions with a linguistic profile higher than their SLE test results. In these cases, as well as situations where a person with a priority entitlement self-refers to a position that has a linguistic profile higher than their SLE test results, they will have to meet the linguistic profile of that position.

Therefore, it is possible that a surplus employee with SLE test results more than five years old at the BBB level could be referred, or could self-refer, to a position with a linguistic profile of CBC. In situations such as this, the surplus employee would be required to meet the “C” levels for reading and oral expression at the time of appointment. The “B” in written expression would be deemed to be valid and would be subject to this measure.

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Transition provisions

16. Does the SLE confirmation decision apply to affect persons who were declared surplus or laid off prior to its effective date?

The SLE confirmation transition measure was approved on April 3, 2012, and took effect on that day:

• For employees eligible for alternation on April 3, 2012, the measure applies to the remainder of their eligibility period;
• For employees with a surplus priority entitlement on April 3, 2012, who also received a Guaranteed Reasonable Job Offer, the measure applies until their surplus priority entitlement ends or until March 31, 2015, whichever occurs first; and
• For employees with a time-limited surplus priority entitlement or for persons with a lay-off priority entitlement on April 3, 2012, the measure applies to the remainder of their priority entitlement period.

17. How does SLE confirmation apply to an employee who is declared surplus (without a GRJO) on May 1, 2014?

The SLE confirmation measure applies to employees declared surplus prior to March 31, 2015. In this case, because the employee was declared time-limited surplus prior to March 31, 2015, the measure applies to this employee during the surplus period, from May 1, 2014, to April 30, 2015, if the employee’s surplus priority entitlement runs for the full year.

18. Does SLE confirmation apply to an employee who is laid off on May 1, 2015?

The measure applies to employees who are laid off prior to March 31, 2015. In this case, because the employee was laid off after March 31, 2015, the measure does not apply to this employee during the lay-off priority entitlement period.

After appointment or deployment

19. Is the hiring manager responsible for providing refresher language training?

SLE confirmation was put in place at the request of deputy heads as a means to facilitate the placement of surplus employees who have SLE test results that are more than five years old. For these employees, managers are expected to focus on refresher language training and test preparation after the appointment or deployment, rather than SLE testing prior to the appointment or deployment. Also, managers in the organization that has declared the employee surplus may be in a position to share the cost of test preparation with the hiring organization when this cost is likely to be less for them than the cost of a lay-off.

20. Is the employee entitled to receive the bilingualism bonus on appointment to the new position even if their SLE test results are over five years old?

The TBS Bilingualism Bonus Directive applies in all circumstances. Section 1.1 of the Directive sets forth the conditions under which employees are eligible for the bilingualism bonus. Section 1.2 explains how the bonus is treated in the event that SLE test results show that an employee does not meet the linguistic profile of their position, and Section 1.10 explains how it will be reinstated when SLE test results show that the employee once again meets the requirements. When the transition measure is applied to an appointment or deployment, the employee is deemed to meet the linguistic profile of the position until they fail a subsequent SLE test or if they are not retested within the 12 months.

21. How many times can an employee be tested within the 12-month period following their appointment? Must an employee be appointed or deployed to another position as soon as they fail to meet the linguistic profile?

Employees subject to SLE confirmation may undergo SLE testing more than once during the 12-month period, as long as the minimum 30-day waiting period between tests is respected. The bilingual bonus may be affected during this period, in accordance with the TBS Bilingualism Bonus Directive, however the feedback obtained in a failed test can be an important part of the preparation for passing the SLE tests within the 12-month period.

22. The employee must agree to be appointed or deployed to another indeterminate position at the end of the 12-month period if they are unable to successfully re-obtain SLE test results that meet the linguistic profile of the position. What happens if the organization is unable to offer the employee another position?

Since these employees once achieved the required linguistic proficiency, it is likely that the majority will be successful within 12 months. Organizations are expected to be proactive to prevent unsuccessful testing situations from occurring. Early investment in refresher language training, practice and test preparation will also increase the likelihood of success. The PSC will monitor the use of the SLE confirmation transition measure and will follow up with organizations on a case-by-case basis to resolve any specific situation that proves challenging.

23. Can the 12-month period be extended?

There is no possibility of extension of the 12-month period in appointments where SLE confirmation applies. Similar to the requirements as outlined in the PSC Guidance Series – Official Languages in the Appointment Process related to non-imperative appointments, periods of leave of more than 60 calendar days are not included in the 12-month period. These situations should be managed on a case-by-case basis.

24. What is the impact if the linguistic profile of the position to which the person was appointed or deployed is raised during the 12-month period?

SLE confirmation is based on the linguistic profile of the position at the time of the appointment. In accordance with TBS Policy on Official Languages for Human Resources Management, managers review the language requirements of positions or functions when staffing or when positions or functions change significantly. Therefore, it is expected that managers will review the linguistic profiles of positions prior to the appointment or deployment of alternating, surplus or laid-off employees to prevent this situation from occurring. If subsequent changes to the linguistic profile are necessary, these will be managed as for all other employees in the same situation, in accordance with TBS Policy on Official Languages for Human Resources Management.

Career transition for executives

25. How does SLE confirmation apply to executives (EXs) and other groups covered by the Directive on Career Transition for Executives?

The measure applies to EXs and the other groups covered by the Directive on Career Transition for Executives as it applies to any other employee. The following are of note:

• Alternation can occur between the date on which the EX has been notified that their position will be declared surplus and the date on which the EX must inform the organization of the option on which they decided. The length of this period is at the discretion of the deputy head, so for EX alternations, this measure is applied in the same way as for other employees who alternate; and
• EXs do not receive a Guaranteed Reasonable Job Offer, so for those who choose to seek continued employment in the core public administration, this measure is applied in the same way as for employees with a time-limited surplus.

Compliance

26. How will organizations establish the terms of this measure?

Organizations should establish the terms of this measure in a clause in the letter of offer as a condition of employment to which the employee must agree for the appointment to be made. The PSC recommends that organizations include the following clause in letters of offer for these appointments:

This position requires proficiency in both official languages, English and French, at the above-noted level. By accepting this offer, you agree to have your second official language proficiency evaluated within 12 months of this appointment (or deployment). If you have not confirmed and/or attained the required level of official language proficiency by the end of the 12-month period, you agree to be appointed or deployed on an indeterminate basis to a position for which you meet the merit criteria, including official language proficiency, that is of a similar level and salary as this position.

27. How will organizations ensure that the terms of the SLE confirmation transition measure are met?

Organizations will need to implement their own tracking system to ensure that employees obtain new, valid SLE test results confirming that they meet the language profile of their new position within 12 months. Tracking should resemble the system that is currently in place for non-imperative appointments. Details on the type of information which should be tracked can be found in Letter to Heads of Human Resources 12-19.

28. Will organizations be required to report to the PSC on the results of use of the SLE confirmation measure?

Yes. Organizations will be asked to report to the PSC on the results of use of the SLE confirmation measure in the reporting template on the monitoring of the application of the Public Service Official Languages Exclusion Approval Order. By March 31, 2013, organizations can expect to report on:

• The number of employees who made use of the transition measure in 2012-2013; and
• The employees whose cases have not been resolved on the reporting date.

They may also need to provide supporting documents demonstrating that they have monitored the application of the transition measure within their institution. The data collected will not be part of the assessment of the Departmental Staffing Accountability Report for 2012-2013, but may form part of this assessment in subsequent years.