Part II, chapter 3: Leave of absence returnees/leave of absence replacements

3.1 Legal basis

PSEA, section 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.

(2) and (3) [Repealed, 2006, c. 9, s. 103]

(5) The priority of a person referred to in subsection (1) or (4) applies with respect to any position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

(6) Persons described in subsection (1) shall be appointed in priority to persons described in subsection (4), and persons described in each of those subsections shall be appointed in the order determined by the Commission.

The circumstances under which leave of absence may be granted, and in which the position of an employee on leave may be backfilled, are outlined in Appendix B, subsection 1.4 of the Directive on Leave and Special Working Arrangements of the Treasury Board Secretariat (TBS). Organizations must contact the TBS, not the Public Service Commission (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 must 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 subsection 41.1(1) of the Public Service Employment Act (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 paragraph 41(1)(b).

3.1.1 Leave of absence returnee

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

3.1.2 The entitlement

Persons holding this priority entitlement are entitled to be appointed to any position for which they meet the essential qualifications referred to in the Public Service Employment Act (PSEA), paragraph 30(2)(a), as well as the conditions of employment. There are no restrictions with respect to the occupational group, level or location of the position to which an appointment may be made pursuant to this entitlement. They must be appointed in priority to all other persons, except:

• Canadian Armed Forces (CAF) members whose medical release is attributable to service (PSEA, subsection  39.1(1)); and
• Surplus employees being appointed within their own organization under section 40 of the Act.

3.1.3 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 entitlement start date: November 2, 2007
Priority entitlement end date: February 13, 2011

Organizations must register and activate the person with a priority entitlement 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 to consider positions, the organization must still register and activate the person with a priority entitlement, and indicate when the person will be available in their PIMS profile.

The priority entitlement ends when:

• the employee is appointed to another indeterminate position during the priority period
• the priority period expires without an indeterminate appointment or
• the employee resigns, retires or is released

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.   

Priority entitlement start date: August 18, 2010
Priority entitlement end date: 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 Priority Information Management System (PIMS) will only begin notifying persons with a priority entitlement of positions once the person’s registration has been activated. Late registration and activation will reduce the period PIMS identifies positions and may result in lost positions for the person with a priority entitlement.

3.1.4 Position not backfilled 

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.

3.1.5 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 National Joint Council Work Force Adjustment Directive (WFAD), Work Force Adjustment Agreement (WFAA) and related appendices to the Collective Agreements. 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 backfilled 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 person with a priority entitlement simply continues their leave of absence priority entitlement. The indeterminate replacement is the employee who is then affected by the Work Force Adjustment Agreement situation and is declared surplus in accordance with the WFAD, WFAA and related appendices to the Collective Agreements.

3.1.6 Expiry of priority period/end of employment

PSEA, section 42 states that:

A person who is entitled under subsection 41(1) to be appointed to a position and who is not so appointed in the applicable period provided for in that subsection ceases to be an employee at the end of that period.

It means that if the person with a leave of absence entitlement has not been appointed indeterminately during the priority entitlement period, they cease to be an employee at the end of the priority entitlement period (the one year thereafter period), except in the circumstances described in the upcoming section “Specified Term Appointment.”

3.1.7 Protecting severance

For employees where TBS is the employer, the cessation of employment upon the expiry of the priority entitlement has no impact on any potential remaining severance benefits.

Note: 

Employees of separate agencies subject to the PSEA should discuss any impact that the cessation of their employment upon the expiry of the priority entitlement period could have upon their severance benefits with their organizational compensation advisor prior to their entitlement end date. It is the organization's responsibility to ensure that the person understands all implications.

3.1.8 Specified term appointment

If the person with a priority entitlement is appointed on a specified 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 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 specified term appointment. This may result from changes such as a conversion of the specified term appointment to an indeterminate appointment, or the person being successful in a different staffing process.

3.1.9 Appointment to a lower-level position

A person with a leave of absence priority entitlement who is appointed indeterminately to a lower-level position during the priority period may be eligible for the reinstatement priority entitlement (PSER, subsection 10(1)).

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 priority entitlement type in PIMS  if they are eligible for the reinstatement priority entitlement.

3.1.10 Documents required by the Public Service Commission to support registration and activation

• The Priority Information Management System (PIMS) online Registration Form;
• Signed copy of the Privacy Consent Form for Persons with a Priority Entitlement if the organization has completed a full new registration and activation;
• 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 must be provided to the PSC Priority Entitlements Consultant no later than 10 working days following the activation of the registration in PIMS.

Note 2:

Persons with a priority entitlement who want to be identified for bilingual positions should have valid second language results at the time of activation in PIMS or should be scheduled for second language testing if they have never been tested or if their results have expired.

3.2 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.

3.2.1 The entitlement

Persons holding this priority entitlement are entitled to be appointed to any position for which they meet the essential qualifications referred to in the Public Service Employment Act (PSEA), paragraph 30(2)(a), as well as the conditions of employment. There are no restrictions with respect to the occupational group, level or location of the position to which an appointment may be made pursuant to this entitlement. They must be appointed in priority to all other persons, except:

• CAF members whose medical release is attributable to service (PSEA, subsection 39.1(1)); and
• Surplus employees being appointed within their own organization under section 40 of the Act.

3.2.2 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:

• the person with a priority entitlement is appointed to another indeterminate position during the priority entitlement period;
• the priority entitlement period expires without an indeterminate appointment; or
• the person with a priority entitlement resigns, retires or is released.

The start dates and durations of the various priority entitlements are set by the PSEA and/or PSER and cannot be altered. The Priority Information Management System (PIMS) will only begin notifying persons with a priority entitlement of positions once the person’s registration is activated. Late registration and activation will reduce the period PIMS identifies positions and may result in lost positions for the person with a priority entitlement

3.2.3 Expiry of priority period

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

3.2.4 Appointment to a specified term position

If the person with a priority entitlement is appointed on a specified 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 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 specified term appointment. This may result from changes such as a conversion of the specified term appointment to an indeterminate appointment, or the person being successful in a different staffing process.

3.2.5 Protecting severance

For employees where TBS is the employer, the cessation of employment upon the expiry of the priority entitlement has no impact on any potential remaining severance benefits.

Note: 

Employees of separate agencies subject to the PSEA should discuss any impact that the cessation of their employment upon the expiry of the priority entitlement period could have upon their severance benefits with their organizational compensation advisor prior to their entitlement end date. It is the organization's responsibility to ensure that the person understands all implications.

3.2.6 Appointment to a lower-level position

A person with a leave of absence priority entitlement who is appointed indeterminately to a lower-level position during the priority period may be eligible for the reinstatement priority entitlement (PSER, subsection 10(1)).

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 priority entitlement type in PIMS if they are eligible for the reinstatement priority entitlement.

3.2.7 Documents required by the Public Service Commission to support registration and activation

• The Priority Information Management System (PIMS) online Registration Form
• Signed copy of the Privacy Consent Form for Persons with a Priority Entitlement if the organization has completed a full new registration and activation
• 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
• Document indicating the date that the employee on leave has returned to the position

Note 1: 

All supporting documents must be provided to the PSC Priority Entitlements Consultant no later than 10 working days following the activation of the registration in PIMS.

Note 2: 

Persons with a priority entitlement who want to be identified for bilingual positions should have valid second language results at the time of activation in PIMS or should be scheduled for second language testing if they have never been tested or if their results have expired.

3.3 Deployment of persons with a leave of absence person priority entitlement

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, paragraph 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, paragraph 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.

3.4 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 Treasury Board Secretariat (TBS).

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

All persons with a priority entitlement are encouraged to speak to their organization's human resources staff for advice on eligibility for travel or relocation expenses.

For further information, consult the National Joint Council (NJC) Travel Directive and the Relocation Directive.

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