Part II, chapter 2: Surplus employees

2.1 Legal basis

There are two types of priority entitlement for surplus employees:

• When being considered for appointment in their home organization, the person with a priority entitlement derives their entitlement from the Public Service Employment Act (PSEA), section 40; and
• When being considered for appointment in organizations other than their home organization, the entitlement is derived from the Public Service Employment Regulations (PSER), section 5.

In an organization other than their home organization, the same person with a priority entitlement would only be entitled to be appointed after persons holding any of the statutory priority entitlements. This is because their priority entitlement in those organizations is a regulatory priority entitlement, from PSER section 5.

The PSEA and PSER provide a priority entitlement "for the duration of the surplus period" to employees who become surplus under the provisions of the Work Force Adjustment Directive (WFAD) and related agreements or the Directive on Terms and Conditions of Employment for Executives.

These agreements are the responsibility of the Employer and all questions concerning their application and interpretation should be directed to the Treasury Board Secretariat (TBS).

2.2 The entitlement

As mentioned, there are two types of priority entitlement for surplus employees:

In their home organization:

PSEA, section 40

Notwithstanding section 41, after a deputy head informs an employee that the employee will be laid off pursuant to subsection 64(1) and before the lay-off becomes effective, the Commission may appoint the employee in priority to all other persons to another position under the deputy head's jurisdiction if the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) and that it is in the best interests of the public service to make the appointment

Not in their home organization:

PSER, section 5

(1) An employee who has been advised by the deputy head that their services are no longer required but before any lay-off becomes effective is entitled to appointment in priority to all persons, other than those referred to in sub-section 39.1(1), section 40 and sub-sections 41(1) and (4) of the Act, to any position in the public service for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act.

2.3 Duration of entitlement

PSEA, section 40

PSER, section 5

The Priority Information Management System (PIMS) will only begin notifying persons with a priority entitlement of job opportunities once they are registered. Late registration will reduce the period PIMS identifies job opportunities and may result in lost opportunities for the person.

2.4 Refusal of a reasonable job offer

When a surplus employee has been provided with a guarantee of a reasonable job offer (GRJO), it is the employee's home organization that determines whether the employee has violated any of the conditions of that guarantee, including a determination of whether a given job offer constitutes a reasonable job offer within the meaning of the WFAD, WFAA and related collective agreements. The home organization’s determination of whether a given job offer constitutes a reasonable job offer also applies to employees who did not receive a GRJO and chose option (a), the time limited surplus period. Refusal of a reasonable job offer in either of these circumstances will lead to lay-off of the employee.

2.5 Specified term appointment

Organizations that wish to offer specified period employment to a person with a priority entitlement, such as a secondment, assignment or term appointment, are encouraged to contact the PSC before proceeding to ensure that the person’s priority entitlement rights are respected.

2.6 Appointment to a lower-level position

A person with a surplus priority entitlement who is appointed indeterminately to a lower-level position during the priority entitlement period has a reinstatement priority entitlement (PSER, section 10).

The persons with a surplus priority entitlement may be entitled to salary protection, as per the WFAD, WFAA and related collective agreements, until appointed to the original or equivalent level, during and after the reinstatement priority entitlement period. Questions on salary protection should be directed to TBS.

2.7 Provisions of the work force adjustment agreements related to priority administration

The WFAD, WFAA and related collective agreements are the responsibility of TBS. For details and up-to-date text and interpretations, please consult TBS and the current WFAD, WFAA and related Collective Agreements. They can be found on the Work Force Adjustment page of the TBS Web site.

A) Retraining

An employee with a surplus priority entitlement may be entitled to up to two years of retraining, pursuant to the WFAD, WFAA and related Collective Agreements. Retraining provisions of the WFAD/WFAA do not apply where an appointment constitutes a promotion.

In accordance with Part IV of the WFAD, it is the responsibility of the employee and the home or appointing organization to identify retraining opportunities. Retraining issues should be discussed with the organization’s Work Force Adjustment Coordinator and/or the responsible Human Resources Advisor or hiring manager.

PIMS notifies persons with a surplus priority entitlement of positions for which they potentially meet the essential qualifications at that time, not to positions where, with retraining, they would potentially meet the essential qualifications.

For more detailed information, please consult the Work Force Adjustment section of the TBS Web site and the WFA appendices of related Collective Agreements.

B) Travel and relocation

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

Under the WFAD and related agreements, the home organization pays such costs for persons with a surplus priority entitlement.

For more detailed information, please consult the Work Force Adjustment section of the TBS Web site, the WFA appendices of related Collective Agreements, the National Joint Council (NJC) Travel Directive and Relocation Directive .

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

C) Related provisions of the Directive on Terms and Conditions of Employment for Executives

Details on the provisions for Executives can be found in the Directive on Terms and Conditions of Employment for Executives. 

This Directive is the responsibility of the Employer and all questions concerning its application and interpretation should be directed to TBS.

2.8 Separate agencies

The WFAD, WFAA and related Collective Agreements do not apply to employees of separate agencies because TBS is not the Employer. Separate agencies have their own WFA regimes in place. If these organizations make their appointments under the PSEA, their employees may be eligible for priority entitlements.

In addition, if these separate agencies that make appointments under the PSEA have a policy that provides a surplus period before lay-off, then the surplus priority entitlement will apply to their employees for the period specified in the agency's policies. Otherwise, their employees are entitled to the lay-off priority entitlement, as well as being eligible for the other priority entitlements as defined by the PSEA.

The separate agencies subject to the PSEA are:

• Office of the Correctional Investigator of Canada;
• Financial Consumer Agency of Canada;
• Indian Oil and Gas Canada;
• National Energy Board; and
• The Office of the Superintendent of Financial Institutions Canada.

2.9 Documents required by the Public Service Commission to support registration

• The PIMS on-line Registration Form
• Signed copy of the Privacy Consent Form for Persons with a Priority Entitlement if the organization has completed a full registration
• Signed Manager’s Attestation Form
• Letter declaring the employee surplus with a GRJO, specifying the start date. No end date is required; or
• Letter declaring the employee surplus with time limited surplus status, specifying the start and end date

Please refer to LHHR (12-09) for the temporary measure put in place for the validity period of Second Language Evaluation (SLE) test results of those affected by the Work Force Adjustment as a result of Spending Review 2012. You can also refer to the PSC's Guidance Series – Official Languages in the Appointment Process (5.3.2.2.4 Period of validity of SLE test results).