Part II, chapter 4: Persons laid off
4.1 Legal basis
(1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.
(2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head’s organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.
(3) Subsection (1) does not apply where employment is terminated in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act.
(4) An employee ceases to be an employee when the employee is laid off.
(4) Priority for appointment over all other persons shall be given, during the period determined by the Commission, to a person who is laid off pursuant to subsection 64(1).
A person who is laid off under subsection 64(1) is entitled, during any period that the Commission determines for any case or class of cases, to participate in any advertised appointment process for which the person would have been eligible had the person not been laid off.
Section 40, subsection 41(4) and section 44 do not apply to a person whose employment was for a specified term at the time they were informed that they would be laid off.
The periods referred to in subsection 41(4) and section 44 of the Act begin on the day on which the person is laid off and ends on the earliest of
- the first anniversary of the day on which the person is laid off,
- the day on which the person is appointed to a position in the public service for an indeterminate period, and
- the day on which the person declines an appointment to a position in the public service for an indeterminate period without good and sufficient reason.
4.2 Employer related issues
In addition to the provisions of the Public Service Employment Act (PSEA), the lay-off process is subject to other conditions and obligations specified in the Workforce Adjustment Agreement Directive (WFAD), Workforce Adjustment Agreements (WFAA) in related collective agreements, and in the Directive on Terms and Conditions of Employment for Executives. These directives and agreements provide additional benefits to surplus employees and laid off persons.
These directives and agreements are the responsibility of the Employer and all questions concerning their application and interpretation should be directed to the Treasury Board Secretariat (TBS).
4.3 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))
- Surplus employees being appointed within their own organization under section 40 of the PSEA and
- Employees who are entitled to a leave of absence priority entitlement under subsection 41(1) of the PSEA
4.4 Duration of entitlement
The periods referred to in subsection 41(4) and section 44 of the Act begin on the day on which the person is laid off and end on the earliest of
- the first anniversary of the day on which the person is laid off,
- the day on which the person is appointed to a position in the public service for an indeterminate period, and
- the day on which the person declines an appointment to a position in the public service for an indeterminate period without good and sufficient reason.
Note 1:
The start dates and durations of priority entitlements are set by the PSEA 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.
Note 2:
Although the PSER establishes the start and end dates for this priority entitlement, questions on the calculation of the lay-off period should be directed to the organization’s Work Force Adjustment Coordinator or TBS.
4.5 Specified term appointment
If the laid off person accepts a specified term appointment during their priority entitlement period, they will continue to be identified for indeterminate positions until appointed indeterminately to a position or until their priority entitlement period expires or they decline an indeterminate appointment without good and sufficient reason.
4.6 Participating in advertised processes
Persons with a lay-off priority entitlement should be encouraged to apply to all advertised internal and external appointment processes of interest, for which they believe they may be qualified, when they are within the area of selection, by ensuring they submit their application within the timeframe specified in the advertisement. They should clearly indicate that they have a lay-off priority entitlement and the end date of their priority entitlement period.
This will ensure that, where an organization has not completed the assessment of a person with a lay-off priority entitlement prior to the expiry of their entitlement, they would still be considered as a candidate in the appointment process. While they would no longer have the right to be considered for appointment before all others, they would be considered along with the other candidates in that appointment process.
4.7 Appointment to a lower-level position
A person with a lay-off priority entitlement who is appointed indeterminately to a lower-level position during the priority entitlement period, may be eligible for a reinstatement priority entitlement (PSER, subsection 10(1)). This does not apply to persons laid off under paragraph 12(1)(f) of the Financial Administration Act.
The person with a lay-off priority entitlement may be entitled to salary protection, as per the WFAD, WFAA and related collective agreements, until they are appointed or deployed into a position with a maximum rate of pay that is equal to or higher than the maximum rate of pay of the position from which they were declared surplus. This may occur during or after a reinstatement priority entitlement. Questions on salary protection should be directed to TBS.
Note:
The hiring organization must inform the PSC of the lower-level appointment by submitting a PIMS Referral Feedback Form or a PIMS Request for Priority Clearance to Appoint a Person with a Priority Entitlement. Once the lower-level appointment is made, the hiring organization is responsible for updating the person’s priority entitlement type in PIMS if they are eligible for the reinstatement priority entitlement.
4.8 Provisions of the work force adjustment agreements related to priority administration
The WFAD, WFAAs 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, WFAAs and related Collective Agreements.
A) Retraining
A person with a lay-off priority entitlement may be entitled to up to two years of "retraining", pursuant to the WFAD, WFAA and related Collective Agreements. 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 (HR) Advisor or hiring manager.
PIMS notifies persons with a lay-off priority entitlement to positions for which they may meet the essential qualifications at that time, not to positions where, with retraining, they would potentially meet the essential qualifications.
B) Travel and relocation
Travel and relocation costs are the responsibility of the Employer. All questions concerning travel and relocation should be directed to TBS.
Under the WFAD and related agreements, the home organization pays such costs for persons with a lay-off priority entitlement.
For more detailed information, please consult the WFAD, WFAA and related collective agreements, and the National Joint Council (NJC) Travel Directive and the 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.
4.9 Separate agencies
The WFAD, WFAAs 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 are eligible for priority entitlements.
In addition, if these separate agencies who make their 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
- Canada Energy Regulator
- Office of the Superintendent of Financial Institutions
4.10 Notes about registration, activation and documents required by the Public Service Commission
If the laid off person is already registered with an active surplus priority entitlement, the organization does not create a "new" registration because of the lay-off. Rather, the organization must notify the PSC of the employee’s new priority entitlement type using the "Change Priority Type" to show the change from surplus to lay-off.
In such cases, the PSC requires only the following documents:
- Letter of lay-off, with effective date, signed by the organization
- An update of the Priority Information Management System (PIMS) online Registration Form
If the employee being laid off is not already registered and activated as a surplus or other priority entitlement type in PIMS, then the home organization must send a new registration through PIMS, with supporting documentation, including:
- 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 of lay-off, with effective date, signed by the organization
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:
All persons with a priority entitlement are responsible for ensuring that their contact information, such as their e-mail address and telephone number are up to date in PIMS. This is particularly important when changing the priority entitlement type from surplus to lay-off since, upon being laid off, the person is no longer an “employee” and cannot be contacted via their former work e-mail address, telephone or voice mail.