Regulations establishing periods of probation and periods of notice of termination of employment during probation

Official regulation, Canada Gazette, Part II, December 14th, 2005

Vol. 139, No. 25 — December 14, 2005

Registration
SOR/2005-375 November 24, 2005

PUBLIC SERVICE EMPLOYMENT ACT

The Treasury Board, pursuant to subsection 26(1)(c) of the Public Service Employment Act ( See footnote ^a), hereby makes the annexed Regulations Establishing Periods of Probation and Periods of Notice of Termination of Employment During Probation.

November 21, 2005 Reginald B. Alcock
President of the Treasury Board and
Minister responsible for the Canadian Wheat Board

REGULATIONS

APPLICATION

1. These Regulations apply in respect of organizations named in Schedule I or IV to the Financial Administration Act.

PROBATIONARY PERIOD

2.

1. The probationary period referred to in paragraph 61(1)(a) of the Public Service Employment Act, for the class of employees described in column 1 of an item of the schedule, is the period set out in column 2 of the item.
2. The probationary period does not include any period
   1. of leave without pay;
   2. of full-time language training;
   3. of leave with pay of more than 30 consecutive days; or
   4. during which a seasonal employee is not required to perform the duties of the position because of the seasonal nature of the duties.
3. The probationary period for an employee who is disabled and requires job accommodation begins on the day on which the necessary accommodation is made.

NOTICE PERIOD

3.

1. The notice period referred to in paragraph 62(1)(a) of the Public Service Employment Act, for the class of employees described in column 1 of an item of the schedule, is the period set out in column 3 of the item.
2. The notice period begins on the day the deputy head gives notice to an employee.

COMING INTO FORCE

4. These Regulations come into force on the day on which section 12 of the Public Service Modernization Act, being chapter 22 of the Statutes of Canada, 2003, comes into force.

SCHEDULE

PROBATIONARY AND NOTICE PERIODS

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

Part 3 of the Public Service Modernization Act (PSMA), assented on November 7, 2003, created a new Public Service Employment Act (PSEA), and gave authority to the Treasury Board (TB) to make regulations, under section 26, for:

• Establishing periods for probation and notice of termination of employment during probation,
• Defining the word "promotion", and
• Excluding deployments of employees between occupational groups, where necessary.

The new PSEA is expected to come into force in December 2005. Until then, the Public Service Commission (PSC) will continue to have authority over the above-mentioned areas. Current regulations for these areas of responsibility can be found in the Public Service Employment Regulations (PSER 2000).

The new TB regulations will apply to employees in organizations in Schedule I or IV of the Financial Administration Act (FAA), otherwise defined as the core public administration.

The intent behind these Regulations is to give effect to a key provision in the new PSEA, and ensure a consistent, transparent and fair approach across the core public administration.

The TB's new authorities recognize its broader human resources management responsibilities. They complement current authorities for other related areas, such as providing guidance on managing and deploying employees, and defining promotion for purposes of compensation. They are consistent with the general accountability of the Government for more concise, results-oriented performance of the core public administration. They build on the principle of providing flexibility to respond quickly and meaningfully to the needs of managers, employees, employee representatives, and the Canadian taxpayer.

Given the risk and complexities of retaining, promoting and deploying employees, the new PSEA has given the TB authority to make regulations, in addition to policy and guidelines, in these areas, to ensure that prudence and probity, and service delivery from the citizen's or end-user's point of view, are met. A more detailed explanation follows on the need for regulations.

Establishing Periods for Probation and Notice of Termination of Employment during Probation:

The periods of probation and periods of notice of termination of employment during probation provide for a reasonable timeframe and an adequate opportunity for managers to assess whether there is a good fit between an employee and the job. At the same time, it allows employees to demonstrate their competencies and suitability for the job.

The TB regulation replaces sections 30 and 31, and Schedule 2, of the PSER 2000, at the coming into force of the new PSEA.

Sections 30 and 31, and Schedule 2, set out probationary periods for all employees appointed from outside the public service and the required notice period, in the event a deputy head must inform an employee that his/her employment is being terminated. A 12-month probationary and a one-month notice period apply to the vast majority of employees appointed for over one year. For appointments of less than one year, the notice period is two weeks.

The current regulations are the product of over a decade of consultations between the PSC, and departments and functional communities, with amendments responding to the operational needs of functional communities and organizations. Since April 2004, when the Public Service Human Resources Management Agency of Canada (PSHRMAC) began consultations on behalf of the TB, departmental and bargaining agents expressed overall satisfaction with existing flexibilities and did not bring forward any service-wide issues to suggest change.

The TB will maintain a status quo in its regulation regarding periods of probation and periods of notice of termination of employment during probation for employees appointed from outside the public service.

Defining the Word "Promotion":

The definition of promotion determines whether employee movement from position to position is a promotion or deployment. Employees receive an increase in their rate of pay upon promotion that encourages them to accept promotion and also recognizes the skills and competencies they have acquired.

The TB regulation replaces section 2 of the PSER 2000, at the coming into force of the new PSEA.

With one exception, the current definition of promotion for staffing purposes as set out in section 2 remains the same in the new TB regulation.

The exception is the current subsection 2(3), dealing with employees on priority status. Subsection 2(3) provides for a formula for calculating pay increases that is one and one half times the smallest increment, or 6% where there are no increments, to facilitate the placement of employees on priority status. Under the current PSEA, persons entitled to a statutory or regulatory priority may be appointed without competition, ahead of all others, including persons on eligibility lists, and without other employees having a right of appeal against the appointment, if the priority entitlement applies to the particular staffing situation, and if the person meets the essential qualifications of the job.

While the current PSEA restricts employees on priority status from being promoted, the new PSEA does not, meaning that such employees can now be either promoted or deployed. Consequently, the formula described in the above-mentioned paragraph is no longer required.

The TB definition of promotion under the new PSEA was compared with the current definition of promotion for compensation purposes, found in sections 22 to 26 of the TB's Terms and Conditions of Employment Policy (TCEP). This was to gauge the extent to which the two definitions could be made more similar. Even though both definitions use the smallest increment, or the 4% maximum differential rule to define promotion, the PSC introduced two differences to respond to client needs that will be retained in the new TB regulation:

• "Substantive level" will continue to be defined as the level at which the person is paid. This is different from the compensation definition in the TCEP that defines substantive level as the group or level to which an employee has been appointed or deployed under the PSEA.

It means that an employee who moves to a region where the position is the same or at a lower level in the occupational group does not gain a promotion where the higher regional rate of pay is considered a promotion under the compensation formula.

• Promotion will continue to be based on "assignment of duties". This is different from the TCEP definition, which is based on the position to which the employee is "appointed". It accommodates an employee being deployed to a lower level but having the option of subsequently being appointed to his/her former level.

A working group, headed by PSHRMAC and comprised of functional specialists from compensation and labour relations areas in the Treasury Board Secretariat (TBS), and staffing in the PSC, is exploring options with respect to the current definitions. This is a long-term initiative, with a mandate reflective of the need to balance a modernized human resources regime with the needs of both employer and employee, and with the prudence and probity concerns of the Canadian taxpayer.

Regulations Prohibiting Deployments into the Executive Group:

Subsection 51(3) of the new PSEA permits deployments between occupational groups, unless excluded by regulations determined by the TB. A deployment is not considered an appointment as defined by the PSEA, and therefore, there is not a requirement to meet the definition of merit, as is the case for an appointment.

To address this, the PSC has had in place Standards for Inter-group Deployments, which provide for the same minimum education, aptitude, knowledge, abilities/skills and occupational certification requirements as in the group-specific selection standards for appointments. Employees must meet (or exceed) the minimum requirements set out in the standard for the occupational group to which they are being deployed. In this way, the PSC has ensured standards of competence for deployments, which are outside the regular appointment process.

The PSC put section 6 of the PSER 2000 into place to prohibit deployments into the EX Group from other occupational groups, even if the difference between the salary ranges of the two groups meant that a deployment could take place. This was to ensure a consistent and rigorous assessment for movement into the EX Group through appointments only, given the group's uniqueness and the significant leadership and management responsibilities required of employees in that group. Section 6 will cease at the coming into force of the new PSEA.

There is no group-specific selection standard for the EX Group, unlike other occupational groups. The PSC has achieved extensive progress in creating a selection standard for the EX Group, and the expectation is that it will be in place in the future. This standard would complement the new authority of deputy heads under the new PSEA to appoint individuals to and within the EX Group. However, development of any selection standard is a lengthy process, and the standard for the EX Group may not be ready at the coming into force of the new PSEA.

The new PSEA does not place restrictions on deployments into the EX Group and with no EX selection standard, some individuals could be deployed into the EX Group without being qualified for work of an executive nature. As well, employees deploying to occupational groups other than the EX Group would perceive that they were being treated differently in having to meet a minimum selection standard. Finally, the TB is responsible for providing deputy heads with the necessary tools to enable them to fulfill their management responsibilities. This includes ensuring that the executive cadre consists of competent employees. Therefore, until such time as a selection standard is in place for the EX Group for use by deputy heads to assess pre-determined minimum qualifications, a regulation is necessary.

Alternatives

There are no alternatives to be considered to the above regulations, such as making policies or guidelines. Failing to make regulations could create confusion, inconsistencies, and a lack of transparency and fairness across the core public administration.

Benefits and Costs

As the TB regulations constitute minimal change to the existing ones in the PSER 2000, no major impact is expected. They continue to have direct impact only on employees in the core public administration.

Increased costs of one person-year per annum are expected in PSHRMAC to resource compliance and enforcement of these Regulations.

Consultation

Extensive consultations were held from April 2004 to January 2005, regarding these Regulations. PSHRMAC partnered with the PSC and the Canada School of Public Service to seek verbal and written input through three Staffing Module conferences, conducted in June, September and November 2004. Participants included operational managers, human resources managers and bargaining agents of organizations in the core public administration, and in many separate agencies. PSHRMAC also consulted through presentations to separate agencies, the National Staffing Council, and the Public Service Commission Advisory Council that represents key departments, functional communities and bargaining agents. All participants were asked to provide PSHRMAC with input from their organizations through formal and informal means. All consultative documents were made available on the PSC website, for distribution throughout the core public administration and to all Canadians.

These Regulations were pre-published in the Canada Gazette, Part I, on October 15, 2005. One comment was received during the consultation period and was addressed.

Consultations were premised on the following principles:

• Changes should be contemplated if current regulations did not adequately address service-wide issues (i.e. if current regulations were restrictive, unclear, unfair or unreasonable),
• Any proposed changes to current regulations needed to enhance values-based and results-oriented performance, transparency, consistency, fairness and mobility, at a minimum risk, to a greater extent than did current regulations, and
• Any proposed changes to current regulations could not negatively alter the terms and conditions of employment, or collective agreements.

These Regulations are in keeping with those consultations.

Compliance and Enforcement

The Human Resources Management Modernization Branch, PSHRMAC, examines the resource practices followed in applying these Regulations.

Resources have been approved to ensure that the TB's new authorities are discharged and compliance effectively ensured.

Contact

E-mail: Employment Policy 

Return to footnote reference a. S.C. 2003, c. 22, ss. 12 and 13

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