Part II, chapter 9: Reinstatement to original level

9.1 Legal basis

PSER, section 10

(1) An employee referred to in sections 39.1 and 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 to a position in the public service at a lower level is entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and sub-sections 41(1) to (4) of the Act, to any position in the public service that is of a level that is not higher than the position the employee held immediately before the appointment or deployment to the lower level position and for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act.

(2) The entitlement period begins on the day of the appointment or deployment to the lower level and ends on the earliest of

1. the day that is one year after the day of the appointment or deployment,
2. the day on which the employee is appointed or deployed for an indeterminate period to a position in the public service that is of a level equivalent to or higher than the position the employee held immediately before the entitlement 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.

9.2 The entitlement

The reinstatement priority entitlement is for an indeterminate appointment ahead of all others, except for persons with a statutory priority entitlement, to a position at a level that is not higher than the level of the position the employee held immediately before the appointment or deployment to the lower-level position. The person with a priority entitlement must meet the essential qualifications, referred to in PSEA, paragraph 30(2)(a), of the position to which they are to be appointed.

The priority entitlement applies to employees who were appointed or deployed 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 who becomes disabled
• 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 appointed to another position at a level lower than the one they held immediately before the start of the reinstatement priority.

Similarly, the priority entitlement does not end if the person with a reinstatement priority entitlement is later appointed to a position that is equivalent to the initial lower-level appointment or to a position that is at a level higher than the current lower-level position but still lower than their original substantive position. This is considered as a progressive move to return to their original level.

However, the priority entitlement ends if the person with a reinstatement priority entitlement is appointed or a deployed to a position that is at the same level or at a level equivalent to their original substantive position.

9.3 Determining eligibility for the entitlement

To ensure consistency in establishing what it means to be "appointed to a lower level," the PSC has chosen to follow the same 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 Administration Web page.

9.4 Duration of entitlement

The priority entitlement period begins on the day of the appointment or deployment to the lower level and ends on the earliest of:

1. the day that is one year after the day of the appointment or deployment
2. the day on which the employee is appointed or deployed for an indeterminate period to a position in the public service that is of a level equivalent to or higher than the position the employee held immediately before the entitlement took effect
3. the day on which the employee declines an appointment or deployment referred to in paragraph (b) without good and sufficient reason

9.5 Higher-level appointment

If an employee who holds a reinstatement priority entitlement is appointed to a position that is a level higher than the position the employee held immediately before the entitlement took effect, the entitlement would cease. Such an appointment would not be on a priority basis but could occur, for example, as the result of participation in an advertised or non-advertised appointment process.

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 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 to a position at their former group and level or equivalent.

9.7 Refusal of appointment

If the employee refuses to be actively marketed or to pursue serious opportunities or refuses a job offer for other than good and sufficient reason, the PSC may cancel the priority entitlement.

9.8 Responsibility for registration

The responsibility for registering the reinstatement priority entitlement in PIMS rests with the organization that appointed the person with a priority entitlement to the lower level position.

9.9 Documents required by Public Service Commission to support registration

• The organization updates the PIMS on-line Registration Form
• Signed letter of offer or other evidence that the lower-level appointment or deployment has taken place

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 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 HR 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 1.1.16) 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 = $53,506 – Max Rate of CR-5 $52,418 = (A) $1,088

Smallest increment of the AS-1 = (B) $1,820.

Where “A” ($1,088) is less than “B” ($1,820), 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.

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 = $58,782 – Max Rate of PM-2 $57,437 = (A) $1,345

Smallest increment of the EC-2 = (B) $1,276.

Where “A” ($1,345) is equal to or more than “B” ($1,276), 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.