These guidelines are intended to assist organizations in the core
public administration in managing situations where action to demote or to terminate an
employee's employment for reasons other than discipline, such as medical incapacity, is being
considered[1].
These guidelines are issued pursuant to paragraphs
11.1 (1)(f) & (g) of the Financial Administration Act (FAA). Under paragraph 12.(1)(e)
of the same Act deputy heads, are authorized to
demote an employee or to terminate employment for other reasons including incapacity. Such action must be for cause in
accordance with subsection 12.(3)
of the FAA. Finally, subsection 12.2(1) permits delegation of these authorities.
These guidelines apply to the core
public administration, for which the Treasury Board is the employer.
demotion (rétrogradation) – means an action taken by the employer to appoint an
employee to a position at a lower maximum rate of pay.
individual grievance (grief individuel) – means a complaint in writing, presented
by an employee on his/her own behalf, in accordance with section 208 of the PSLRA,
the Public Service Labour
Relations Board Regulations and Rules of Procedure, or the applicable clauses of
collective agreements.
medical incapacity (incapacité médicale) – means a continuing
non-culpable absence from duty due to illness or disability which prevents the employee from
fulfilling their employment obligations.
medical retirement (retraite pour raisons de santé) – retirement on grounds of
disability where physicians of Health Canada certify that there is an impairment which prevents the
employee from engaging in any employment for which they would be reasonably suited.
termination (licenciement) – means the separation from the Public Service of an
employee for cause.
In making a decision to demote an employee or teminate employment for incapacity, the delegated manager should have ensured that:
- the employee has been unable to work due to illness or disability for an extended period and has exhausted his/her sick leave credits and may have been granted leave without pay;
- the employee will not be able to return to duty within the foreseeable future. This determination should be based on an assessment of the employee's health, either by physicians of Health Canada and/or other medical practitioner(s) deemed qualified by the employer;
- where the employee, after having been examined by physicians of Health Canada and/or other medical practitioner(s) deemed qualified by the employer is determined to be "fit for work with limitations", efforts have been taken to accommodate the employee's condition to the point of undue hardship taking into consideration issues of health, safety and cost;
- the employee has been made aware of employee assistance program services; and,
- other options such as resignation or retirement on medical grounds have been presented to the employee for consideration.
Departments and agencies are responsible for ensuring that the measures taken to act in a manner
consistent with the foregoing principles are a matter of record. Departments and agencies must
notify the employee in writing when they decide to demote or terminate employment. This notification
must state the reasons for the decision and the effective date, and must inform the employee of the
right to grieve the decision. Departments must consult the Employer Representation Group of the Treasury Board Secretariat prior to taking demotion or termination action.
The Employer Representation Group of the Treasury Board Secretariat will, upon request, provide
advice and guidance on demotion or termination of employment for cause.
A person who is demoted or whose employment is terminated for other reasons, as described in
these guidelines, may grieve the decision by filing an individual grievance at the final level of
the grievance procedure, pursuant to the Regulations and Rules of Procedure of
the Public Service Labour Relations Board and the applicable collective
agreement. Individual grievances are also subject to third-party adjudication, pursuant to subparagraph
209(1)(c)(i) of the Public
Service Labour Relations Act (PSLRA).
Financial
Administration Act
Public
Service Labour Relations Act
Public Service Labour
Relations Board Regulations and Rules of Procedure
Collective
agreements
Public
Service Employment Act
These guidelines cancel and replace the Treasury Board Guidelines for Non-Disciplinary Demotion
or Termination of Employment for Cause, published in 2002.
Enquiries and recommendations for changes to these guidelines should be directed to:
Employer Representation Group
Labour Relations Operations Sector
Treasury Board of Canada, Secretariat
[1] Termination/demotion for
medical incapacity is the most common action. Termination/demotion for other reasons can also
include failure to meet the basic requirements (eg: valid drivers licence), abandonment of position
and failure to meet the security requirements of the position. In these cases, advice and assistance
should be sought directly from the Employer Representation Group.
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