Part II, chapter 4: Persons laid off

4.1 Legal basis

A. For priority entitlement

Persons laid off pursuant to subsection subsection 64(1) of the Public Service Employment Act (PSEA) are entitled to the priority appointment provisions of subsection 41(4) of the Act.

Priority entitlement

PSEA, subsection 41(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)."

Period of entitlement

PSER, section 11: "The periods of entitlement referred to in subsections 41(4) and 44 of the Act begin on the day on which the person is laid off and ends on the earliest of:

1. the day that is one year after the day on which the person is laid off,
2. the day on which the person is appointed to a position in the public service for an indeterminate period, and
3. 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."

B. For laying off employees

Laying off of employees

PSEA, subsection 64(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.”

Selection of employees

PSEA, subsection 64(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.”

Exception

PSEA, subsection 64(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."

Paragraph 12(1)(f) of the Financial Administration Act states:

Subject to paragraphs 11.1(1)(f) and (g), every deputy head in the core public administration may, with respect to the portion for which he or she is deputy head,

(f) : “provide for the termination of employment of persons to whom an offer of employment is made as the result of the transfer of any work, undertaking or business from the core public administration to any body or corporation that is not part of the core public administration.”

Participation in advertised process — lay-offs

PSEA, section 44: “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.”

Marginal note: Non-application to term employees

PSEA, section 45: “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."

4.2 Employer related issues

In addition to the provisions of the 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 Career Transition for Executives (DCTE). These directives and agreements, which provide additional benefits to surplus employees and laid-off persons, are available from the Work Force Adjustment section of the Treasury Board Secretariat (TBS) Web site.

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

4.3 The entitlement

Laid-off persons are entitled to be appointed to any position for which they meet the essential qualifications, referred to in PSEA, paragraph 30(2)(a), in priority to all other persons, except:

• CAF members whose medical release is attributable to service (PSEA, paragraph 39.1(1))
• Surplus employees being placed within their own organization under section 40 of the Act and
• Employees who are entitled to a leave of absence priority entitlement under subsection 41(1) of the Act

4.4 Duration of entitlement

The priority entitlement starts on the effective date of the person's lay-off (i.e., the date that they ceased to be an employee) and lasts for one year.

The priority entitlement ends when:

• the person with a priority entitlement has been appointed indeterminately
• the priority entitlement period expires without an indeterminate appointment (one year after lay-off) or
• the person with a priority entitlement declines an appointment to a position in the public service for an indeterminate period without good and sufficient reason, as determined by the PSC

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 layoff priority entitlement who is appointed indeterminately to a lower-level position during the priority entitlement period, has a reinstatement priority entitlement (PSER, section 10). 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 have an entitlement 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.

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. They may be found on the Work Force Adjustment page of the TBS Web site.

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

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 potentially 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 Work Force Adjustment section of the TBS Web site, the WFA appendices of related Collective Agreements, the National Joint Council (NJC) Travel Directive and the Relocation Directive.

C) Related provisions of the directive on career transition for executives (DCTE)

Details on the provisions for Executives can be found in the Directive on Career Transition 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 may be 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
• National Energy Board
• Office of the Superintendent of Financial Institutions

4.10 Notes about registration and documents required by the Public Service Commission

If the laid-off person is already registered with an active surplus priority entitlement (and most will have been), the organization does not create a "new" registration because of the lay-off. Rather, they need to indicate "change in priority type" from surplus to lay-off on the PIMS on-line Registration Form.

In such cases, the PSC requires only the following documents:

• Update of the PIMS on-line Registration Form
• Letter of lay-off, with effective date, signed by the organization

If the employee being laid off is not already actively registered 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 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
• Letter of lay-off, with effective date, signed by the organization