Part II, chapter 9: Reinstatement 

9.1 Legal basis

PSER, section 10

(1) The following employees are entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and subsections 41(1)  and (4) of the Act, to any position in the public service referred to in subsection (1.1) for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act:

1. an employee referred to in section 40 or subsection 41(1) or (4) of the Act or subsection 5(1), 7(1) or 9(1) of these Regulations who is appointed or deployed for an indeterminate period to a position in the public service that is at a lower level than the position they held immediately before they became entitled to priority under one of those provisions; and
2. an employee referred to in subsection 7(1) or 9(1) of these Regulations who holds a substantive position that is at a lower level than the position they held immediately before they became entitled to priority under one of those provisions, if their period of employment in that position has been converted to indeterminate under subsection 59(1) of the Act.

(1.1) The position must be at a level that is

1. higher than the employee’s current position; and
2. not higher than the position that the employee held immediately before their entitlement to priority under section 40 or subsection 41(1) or (4) of the Act or subsection 5(1), 7(1) or 9(1) of these Regulations, as the case may be, took effect.

(2) The entitlement period begins on the day of the appointment, deployment or conversion and ends on the earliest of

1. the first anniversary of that day,
2. the day on which the employee is appointed or deployed for an indeterminate period to a position in the public service that is at a level that is not lower than the position that the employee held immediately before their entitlement to a priority under section 40 or subsection 41(1) or (4) of the Act or subsection 5(1), 7(1) or 9(1) of these Regulations, as the case may be, took effect, and
3. the day on which the employee declines an appointment or deployment referred to in paragraph (b) without good and sufficient reason.

(3) For the purpose of paragraphs (1)(a) and (b) and (2)(b), a position is at a lower level than another position if the assignment of the duties of that other position - to an employee whose substantive level, as defined in section 1 of the Definition of Promotion Regulations, corresponds to the position in question - would constitute a promotion within the meaning of section 3 of those Regulations.

(4) For the purpose of subsection (1.1), a position is at a higher level than another position if the assignment of the duties of the position in question - to an employee whose substantive level, as defined in section 1 of the Definition of Promotion Regulations, corresponds to the other position - would constitute a promotion within the meaning of section 3 of those Regulations.

9.2 The entitlement

The reinstatement priority entitlement is for an indeterminate appointment ahead of all other persons, except those with a statutory priority entitlement, to a position at a level that is higher than the employee’s current position, and not higher than the position the employee held immediately before their entitlement to priority under Public Service Employment Act (PSEA) section 40 or subsection 41(1) or (4) or Public Service Employment Regulations (PSER) subsection 5(1), 7(1) or 9(1), took effect. Persons holding this priority entitlement are entitled to be appointed to any position for which they meet the essential qualifications referred to in the PSEA, paragraph 30(2)(a), as well as the conditions of employment, in priority to all other persons except those with a statutory priority entitlement. There are no restrictions with respect to the location of the position to which an appointment may be made pursuant to this entitlement.

The priority entitlement applies to employees who were appointed, deployed or converted on an indeterminate basis to a lower-level position while holding one of the following types of priority entitlements:

• Surplus
• Leave of absence
• Lay-off
• Employee unable to carry out their duties
• Relocation of spouse/common-law partner

There is no specified order of appointment with respect to persons holding regulatory priority entitlements.

The priority entitlement does not end if the person with a reinstatement priority entitlement is later appointed to a position that is at a level higher than the current lower-level position but still lower than the original substantive position (the position held immediately before the entitlement to a priority under section 40 or subsection 41(1) or (4) of the PSEA or subsection 5(1), 7(1) or 9(1) of the PSER). This is considered a progressive move to return to their original level.

However, the priority entitlement ends if the person is appointed or deployed to a position that is at the same or equivalent level to their original substantive position. Similarly, the priority entitlement would end if the person is appointed to a position that is at a level higher than their original substantive position.

Note:

Employees holding this type of priority entitlement are not eligible for priority appointment to a higher-level position than their original position. The entitlement is for an appointment up to a position that is equivalent to their original substantive position. A higher level appointment could occur, but it would be as the result of participation as regular candidate in an another type of appointment process.

9.3 Determining eligibility for the entitlement

To ensure consistency in determining the conditions under PSER  subsections 10(1) and 10(1.1) are met, the PSC follows the criteria set out in the Treasury Board Secretariat’s (TBS) Definition of Promotion Regulations.

In those instances where the return to the former position would constitute a promotion, a reinstatement priority entitlement becomes the mechanism used to support these persons in their return to their original substantive level. The formula for determining whether or not a position is a promotion can be found in the Definition of Promotion Regulations.

For further information about pay administration, consult the TBS Directive on Terms and Conditions of Employment, particularly the Appendix - Terms and Conditions of Employment, Part 2 - Remuneration, sections 2.2.3 and 2.2.4.

Additional guidance on determining eligibility for this entitlement is available from the Frequently Asked Questions on the PSC’s Priority Entitlements Web page.

9.4 Duration of entitlement

The priority entitlement period begins on the day of the appointment , deployment or conversion and ends on the earliest of:

1. the first anniversary of that day
2. the day on which the employee is appointed or deployed for an indeterminate period to a position in the public service that is  at a level that is not lower than the position that the employee held immediately before their entitlement to a priority under section 40 or subsection 41(1) or (4) of the Act or subsection 5(1), 7(1) or 9(1) of these Regulations, as the case may be, took effect, and
3. the day on which the employee declines an appointment or deployment referred to in paragraph (b) without good and sufficient reason

Note:

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.

9.5 Eligible positions for priority appointment with this type of entitlement

The reinstatement priority entitlement can be used for movement to positions that are higher than the employee’s current position, but not higher than position that the employee held immediately before their entitlement to priority under section 40 or subsection 41(1) or (4) of the PSEA or subsection 5(1), 7(1) or 9(1) of the PSER, as the case may be, took effect.

The reinstatement priority entitlement cannot be used for an appointment or deployment to a position at level to, or lower than, the current position.

For the purpose of paragraphs (1)(a) and (b) and (2)(b), PSER subsection 10(3) states that a position is at a lower level than another position if the assignment of the duties of that other position - to an employee whose substantive level, as defined in section 1 of the Definition of Promotion Regulations, corresponds to the position in question - would constitute a promotion within the meaning of section 3 of those Regulations (see Scenario 1 of the Chapter Annex for an example).

For the purpose of subsection (1.1), PSER subsection10(4) states that a position is at a higher level than another position if the assignment of the duties of the position in question - to an employee whose substantive level, as defined in section 1 of the Definition of Promotion Regulations, corresponds to the other position - would constitute a promotion within the meaning of section 3 of those Regulations (see Scenario 2 of the Chapter Annex for an example).

9.6 Salary protection and reinstatement priority entitlement

A person with a surplus or laid-off priority entitlement, who accepts a position for which the rate of pay is lower than that of their former position, may be entitled to salary protection. However, being in receipt of salary protection does not necessarily mean that the person is eligible for a reinstatement priority entitlement. If the appointment or deployment is to a position that, in accordance with TBS’ Definition of Promotion Regulations, is considered to be equivalent to their former position, there is no eligibility for the reinstatement priority entitlement, even though the person may be in receipt of salary protection.

Eligibility for the reinstatement priority entitlement is calculated based on the salary in effect for the former and new positions on the date of the appointment or deployment to the new position.

Salary protection is independent of the reinstatement priority entitlement. Salary protection does not end if the priority entitlement expires without the employee being appointed or deployed to a position at their former group and level or equivalent.

Note:

In accordance with PSER, subsection 10(2), the reinstatement priority entitlement allows for an indeterminate appointment or deployment to a position. In situations where a surplus or lay-off person with a priority entitlement with salary protection is reinstated to their original level, an appointment or a deployment may be used. The PSC’s preference is that persons with a priority entitlement be appointed, rather than deployed, since appointments require priority clearance through the Priority Information Management System (PIMS). This ensures that a person’s priority entitlement information and PIMS statistical data are correct. See question 8 in the Frequently Asked Questions: Guide on Priority Entitlements for further information.

9.7 Refusal of appointment

If the employee refuses to be actively marketed or to pursue serious positions or declines a position without good and sufficient reason, the PSC may end the priority entitlement.

9.8 Responsibility for activating the reinstatement priority entitlement

The responsibility for activating the reinstatement priority entitlement in PIMS rests with the organization that appointed, deployed or converted the person with a priority entitlement to the lower-level position

9.9 Documents required by Public Service Commission to support activation

• The organization updates the Priority Information Management System (PIMS) online Registration Form
• Signed letter of offer or other evidence that the lower-level appointment, deployment or conversion has taken place

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:

The PSC verifies the groups and levels indicated in these documents and ensures eligibility for the reinstatement priority entitlement.

Note 3:

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.

9.10 Travel and relocation costs

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

The responsibility for travel and relocation costs incurred while considering or appointing, deploying or converting persons with a priority entitlement varies according to the situation. Typically, the hiring organization pays the costs for persons with a reinstatement 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 Relocation Directive.

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

Annex A – Supplementary information

Considerations

The Work Force Adjustment Directive (Section 1.1.18) states that “(...) organizations shall avoid appointment to a lower level except where all other avenues have been exhausted”.

Before appointing a person with a priority entitlement into a lower level position and creating a reinstatement priority entitlement, organizations should consider whether all opportunities to appoint the person at their substantive or equivalent level have been exhausted. The organization may also wish to consider whether it is able, as a result of careful planning, to move that employee within their own organization, within a year, to another position at their former substantive level. Employees with a reinstatement priority entitlement who are not redeployed to another position at their former substantive level within the one-year duration of their entitlement could remain in a lower level position with salary protection indefinitely or until they accept another position.

The PSC expects to have limited ability to place reinstatement persons with a priority entitlement in positions at their former substantive level within the one-year entitlement period. This is in part because of fewer vacancies in the public service but also because organizations must consider persons with a statutory priority entitlement (i.e., medically released CAF members whose release is attributable to service, surplus employees in their own organizations, employees returning from leave of absence and persons who have been laid off) before they can consider persons with a regulatory priority entitlement, such as the reinstatement priority entitlement.

Examples (for illustration purposes only):

Scenario 1

A person at the AS-1 group and level with a surplus priority entitlement has been appointed to a CR-5 position.

The maximum rate of pay of the former position (AS-1) is higher than the new position (CR-5).

To establish whether the new position is at a lower level, for the purpose of the reinstatement priority entitlement, one determines whether a reappointment back to the former level (AS-1) would constitute a higher level (promotion) or equivalent level (deployment) in accordance with the Definition of Promotion Regulations. If it constitutes a higher level, then an entitlement to the reinstatement priority exists. If it constitutes an equivalent level, then there is no reinstatement priority entitlement as the new level is deemed to be equivalent in level to the former position.

Maximum Rate of AS-1 = $69,106 – Max Rate of CR-5 $67,699 = (A) $1,407

Smallest increment of the AS-1 = (B) $2,349.

Where “A” ($1,407) is less than “B” ($2,349), the positions are considered equivalent levels and there is no eligibility for a reinstatement priority entitlement.

If “A” were greater than or equal to “B”, the appointment would be to a higher level position and there would be eligibility for a reinstatement priority entitlement.

Note:

Rates of pay used in the above-noted example are those that were in effect when this document was developed and are subject to change.

Scenario 2

A person at the EC-2 group and level with a surplus priority entitlement has been appointed to a PM-2 position.

The maximum rate of pay of the former position (EC-2) is higher than the new position (PM-2).

For the purpose of the reinstatement priority entitlement, to establish whether the new position is a lower level, one determines whether a reappointment back to the former level (EC-2) would constitute a higher level (promotion) or equivalent level (deployment) in accordance with the Definition of Promotion Regulations. If it constitutes a higher level, there is eligibility for a reinstatement priority entitlement. If it constitutes an equivalent level, then there is no eligibility for a reinstatement priority entitlement, as the new level is deemed to be at an equivalent level to the former position.

Maximum Rate of EC-2 = $79,061 – Max Rate of PM-2 $74,180 = (A) $4,881

Smallest increment of the EC-2 = (B) $1,672.

Where “A” ($4,881) is equal to or more than “B” ($1,672), the movement from the PM-2 to the EC-2 is considered a promotion; therefore, there is eligibility for a reinstatement priority entitlement.

If “A” were smaller than “B”, the EC-2 position would be considered an equivalent level and there would be no eligibility for a reinstatement priority entitlement.

Note:

Rates of pay used in the above-noted example are those that were in effect when this document was developed and are subject to change.