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Chapter Four: RecourseIt's not about you or the appellant: It's about the public interest
The Public Service Employment Act (PSEA) provides employees with recourse and authorizes the Public Service Commission (PSC) to investigate and make inquiries. These statutory rights exist primarily to protect the public interest, to ensure the system works, and to ensure that staffing respects the merit principle, not to protect individual employee rights or needs. Types of RecourseThe PSEA identifies four types of recourse:
All of the above are processed by the PSC Recourse Branch. The Recourse Branch is impartial and independent, representing neither the complainant nor the department against whom the complaint is made. Recourse processes dealt with in this chapter This chapter deals only with the first three types of recourse and their alternatives. For complete information, visit the Web site for the PSC Recourse Branch: http://www.psc-cfp.gc.ca/recours/recours_e.htm AppealsThe PSEA grants the right to appeal for most actual or proposed appointments from within the Public Service, namely:
How is an appeal triggered?By the submission of a written statement of appeal to a PSC office by mail, by hand, or by electronic media within 14 days of a proper notice of right of appeal (20 days if notice given by mail). Your Human Resources Advisor (HRA) will ensure the proper notice of right to appeal is given at the end of your selection process. The appeal file is managed by the Registrar's Office, Recourse Branch. Appeal processDisclosurePublic Service Employment Regulations (PSER) require, to avoid any last-minute surprise, both parties to exchange, at a pre-hearing disclosure, all information they shall or may provide at the hearing, i.e., remittance of information and documents by the department to the appellant and submission of the appellant's written allegations to the department. The PSER also requires disclosure to be completed within 45 days from the date you were notified of the appeal by the Registrar, unless an extension of this period was exceptionally granted by an appeal board. Appeal hearingAn appeal board usually consists of one person designated by the PSC and is solely responsible for the conduct of the inquiry. The inquiry is conducted by conference call, video conference, document review, and/or a formal hearing. The appellant and/or representative (usually from the union), you, the HRA who assisted you, and the successful candidates are given an opportunity to be heard. Written DecisionA written decision is rendered as soon as possible after the inquiry.The decision either allows or dismisses the appeal. If allowed, an appointment that has been made must be revoked; if only proposed, an appointment will not be made. The appeal board cannot order a department to make an appointment. The PSC may recommend corrective action to rectify defect(s) in the selection process identified by the appeal board. Refer to Guide to Corrective Measures following an Allowed Appeal. Early Intervention (EI) (Alternative to a formal appeal or deployment recourse)The Recourse Branch offers EI in appeals and deployment recourse. What is EI?EI is an opportunity for parties to resolve their dispute with help from a PSC Recourse Officer trained in alternative dispute resolution (ADR). Both parties must agree to this process and ask the Registrar to arrange a meeting with a Recourse Officer. EI is a voluntary, non-binding process where a Recourse Officer, as a neutral third party, facilitates communication between parties (the appellant/complainant and you) to identify and resolve/clarify the issues of the case. The Recourse Officer is a facilitator/mediator/conciliator to help the parties resolve their concerns, not a decision maker. EI sessions usually last three to four hours and should not postpone an appeal or deployment recourse hearing. How does EI work?The EI meeting is less formal and less confrontational, a comfortable setting to encourage parties to openly discuss their concerns. It may save preparation time for the appeal or deployment recourse hearing for department and appellant/complainant representatives. Both sides may improve their working relationships, and successful EI may end with withdrawal of an appeal/complaint or a concession by the department. Deployment RecourseThe PSEA grants employees in the work unit of a deployment the right to lodge a complaint with their deputy head only if the deployment:
If the complainant, or the deployed employee in question, is dissatisfied with the deputy head's decision, he/she may refer the complaint to the PSC for investigation. Investigating a deployment complaint with the PSCTriggering deployment recourseDeployment recourse requires a written request for an investigation to be submitted to a PSC office within 14 days of the notice of the deputy head's decision (20 days if the notice is given by mail).
HearingThe person designated to investigate the deployment complaint is solely responsible for the conduct of the hearing. The complainant, deployed employee, and the deputy head (and/or their representatives) have an opportunity to be heard. You, as the manager who made the deployment, will usually be expected to attend. Investigator's reportInvestigators report their findings and recommendations to the complainant, the person deployed, and the deputy head (or their representatives) in writing, usually within 14 days after the investigation. If no corrective action is recommended, the deployment is confirmed and all parties notified, but if evidence of irregularity is found, the investigator recommends corrective action to the department and specifies a deadline. Investigation and ConciliationActing for the PSC, the Recourse Branch may investigate any issue within PSC jurisdiction concerning the application of the PSEA and PSER where recourse has not been otherwise provided by Parliament, i.e., mainly staffing actions that are not appealable. The Recourse Branch may accept complaints on:
Who can trigger an investigation?The Registrar, Recourse Branch, accepts complaints in writing from public servants or members of the public who have reasonable grounds to believe they have been treated unfairly and inequitably in a staffing action that has not applied the merit principle. If the Recourse Branch agrees to deal with a complaint, it will notify the deputy head of the department and offer mediation services as an alternative to the formal investigation. You will be notified through your HRA and asked to help deal with the complaint. Investigation process
ConciliationIf the complaint is founded, a Recourse Officer (Conciliator) will be assigned to find a solution. You will be asked by your department to help. If no solution is found, the PSC may take or order a deputy head to take any corrective action it deems appropriate. Your responsibilities as managerWhen you first learn a complaint has been filed with the Recourse Branch, it is always wise to try to resolve the problem. If an investigation is launched, co-operate with the investigator and provide timely, complete, and accurate information. Mediation (Alternative to a formal investigation)The Recourse Branch offers mediation in investigation cases. What is mediation?In some circumstances, with the voluntary agreement of both the complainant and the department, a Recourse Officer (Mediator) from the branch may help the complainant and you resolve the issue at the outset in a way satisfactory to both parties. Such resolution satisfies the interests of both parties as much as possible without an admission of fault by anyone. Mediation discussions are usually kept confidential by all parties. Mediation normally occurs at the outset, as soon as possible after the complaint has been submitted to the Recourse Branch, but can be requested by either party at any stage during the investigation. How does mediation work?The mediator encourages each party to consider the other's interests and helps reach agreement by helping them identify the issues, explore and collaborate on possible points of agreement, and recognize the likely consequences of not settling the dispute through mediation. The parties alone decide whether to settle and on what terms. The mediator never imposes a decision. |
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Updated: 2006-04-19 | Important Notices |