Rescinded [2011-06-08] - Guidelines for Termination of Employment and Demotion for Reasons other than discipline (Medical Incapacity)
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Purpose
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].
Authority
These guidelines are issued pursuant to paragraphs 11.1 (1)(f) and (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.
Application
These guidelines apply to the core public administration, for which the Treasury Board is the employer.
Definitions
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.
Procedure
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.
Responsibilities
Departments and agencies
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.
Treasury Board Secretariat
The Employer Representation Group of the Treasury Board Secretariat will, upon request, provide advice and guidance on demotion or termination of employment for cause.
Redress Procedure
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).
References
Cancellation / Replacement
These guidelines cancel and replace the Treasury Board Guidelines for Non-Disciplinary Demotion or Termination of Employment for Cause, published in 2002.
Enquiries
Enquiries and recommendations for changes to these guidelines should be directed to:
Employer Representation Group
Labour Relations Operations Sector
Treasury Board of Canada, Secretariat