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(b) determined by a separate agency in
respect of the class of employees of which
that person is a member, in the case of an
organization that is a separate agency to
which the Commission has exclusive
authority to make appointments.
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| Effect of
appointment
or deployment
|
(2) A period established pursuant to
subsection (1) is not terminated by any
appointment or deployment made during that
period.
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| Termination
of
employment
|
62. (1) While an employee is on probation,
the deputy head of the organization may notify
the employee that his or her employment will
be terminated at the end of
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(a) the notice period established by
regulations of the Treasury Board in respect
of the class of employees of which that
employee is a member, in the case of an
organization named in Schedule I or IV to
the Financial Administration Act, or
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(b) the notice period determined by the
separate agency in respect of the class of
employees of which that employee is a
member, in the case of a separate agency to
which the Commission has exclusive
authority to make appointments,
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and the employee ceases to be an employee at
the end of that notice period.
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| Compensation
in lieu of
notice
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(2) Instead of notifying an employee under
subsection (1), the deputy head may notify the
employee that his or her employment will be
terminated on the date specified by the deputy
head and that they will be paid an amount
equal to the salary they would have been paid
during the notice period under that subsection.
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| Resignation
|
63. An employee may resign from the
public service by giving the deputy head
notice in writing of his or her intention to
resign, and the employee ceases to be an
employee on the date specified by the deputy
head in writing on accepting the resignation,
regardless of the date of the acceptance.
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| Laying off of
employees
|
64. (1) Where the services of an employee
are no longer required by reason of lack of
work, the discontinuance of a function or the
transfer of work or a function outside those
portions of the federal public administration
named in Schedule I, IV or V to the Financial
Administration Act, the deputy head may, in
accordance with the regulations of the
Commission, lay off the employee, in which
case the deputy head shall so advise the
employee.
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| Selection of
employees
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(2) Where the deputy head determines
under subsection (1) that some but not all of
the employees in any part of the deputy head's
organization will be laid off, the employees to
be laid off shall be selected in accordance with
the regulations of the Commission .
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| Exception
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(3) Subsection (1) does not apply where
employment is terminated in the
circumstances referred to in paragraph
12(1)(f) of the Financial Administration Act.
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| Effect of
lay-off
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(4) An employee ceases to be an employee
when the employee is laid off.
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| Complaint to
Tribunal re
lay-off
|
65. (1) Where some but not all of the
employees in a part of an organization are
informed by the deputy head that they will be
laid off, any employee selected for lay-off
may make a complaint to the Tribunal, in the
manner and within the time fixed by the
Tribunal's regulations, that his or her selection
constituted an abuse of authority.
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| Limitation
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(2) No complaint may be made under
subsection (1) against the decision to lay off
employees, the determination of the part of the
organization from which employees will be
laid off or the number of employees to be laid
off from that part.
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| Right to be
heard
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(3) A complainant, every other employee in
the part of the organization referred to in
subsection (1), the deputy head and the
Commission - or their
representatives - are entitled to be heard by
the Tribunal.
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| Lay-off set
aside
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(4) Where the Tribunal finds a complaint
under subsection (1) to be substantiated, it
may set aside the decision of the deputy head
to lay off the complainant and order the deputy
head to take any corrective action that it
considers appropriate, other than the lay-off of
any employee.
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| Notice to
Canadian
Human Rights
Commission
|
(5) Where a complaint raises an issue
involving the interpretation or application of
the Canadian Human Rights Act, the
complainant shall, in accordance with the
regulations of the Tribunal, notify the
Canadian Human Rights Commission of the
issue.
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| Canadian
Human Rights
Commission
|
(6) Where the Canadian Human Rights
Commission is notified of an issue pursuant to
subsection (5), it may make submissions to the
Tribunal with respect to that issue.
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| Application of
Canadian
Human Rights
Act
|
(7) In considering whether a complaint is
substantiated, the Tribunal may interpret and
apply the Canadian Human Rights Act, other
than its provisions relating to the right to equal
pay for work of equal value.
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| Relief for
discrimination
|
(8) Corrective action may include an order
for relief in accordance with paragraph
53(2)(e) or subsection 53(3) of the Canadian
Human Rights Act.
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| External
appointments
|
66. The Commission may investigate any
external appointment process and, if it is
satisfied that the appointment was not made or
proposed to be made on the basis of merit, or
that there was an error, an omission or
improper conduct that affected the selection
of the person appointed or proposed for
appointment, the Commission may
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(a) revoke the appointment or not make the
appointment, as the case may be; and
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(b) take any corrective action that it
considers appropriate.
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| Internal
appointments
- no
delegation
|
67. (1) The Commission may investigate an
internal appointment process, other than one
conducted by a deputy head acting under
subsection 15(1), and, if it is satisfied that
there was an error, an omission or improper
conduct that affected the selection of the
person appointed or proposed for
appointment, the Commission may
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(a) revoke the appointment or not make the
appointment, as the case may be; and
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(b) take any corrective action that it
considers appropriate.
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| Internal
appointments
- delegation
|
(2) The Commission may, at the request of
the deputy head, investigate an internal
appointment process that was conducted by a
deputy head acting under subsection 15(1),
and report its findings to the deputy head and
the deputy head may, if satisfied that there was
an error, an omission or improper conduct that
affected the selection of the person appointed
or proposed for appointment,
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(a) revoke the appointment or not make the
appointment, as the case may be; and
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|
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(b) take any corrective action that he or she
considers appropriate.
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| Political
influence
|
68. If it has reason to believe that an
appointment or proposed appointment was not
free from political influence, the Commission
may investigate the appointment process and,
if it is satisfied that the appointment or
proposed appointment was not free from
political influence, the Commission may
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(a) revoke the appointment or not make the
appointment, as the case may be; and
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|
(b) take any corrective action that it
considers appropriate.
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| Fraud
|
69. If it has reason to believe that fraud may
have occurred in an appointment process, the
Commission may investigate the appointment
process and, if it is satisfied that fraud has
occurred, the Commission may
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(a) revoke the appointment or not make the
appointment, as the case may be; and
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|
|
(b) take any corrective action that it
considers appropriate.
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| Powers of
Commission
|
70. (1) In conducting any investigation
under this Part, the Commission has all the
powers of a commissioner under Part II of the
Inquiries Act.
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| Informality
|
(2) An investigation shall be conducted by
the Commission as informally and
expeditiously as possible.
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| Persons acting
for
Commission
|
71. (1) The Commission may direct that any
investigation under this Part be conducted, in
whole or in part, by one or more
Commissioners or other persons.
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| Powers of
Commissioner
|
(2) A Commissioner directed under
subsection (1) has the powers referred to in
section 70 in relation to the matter before the
Commissioner.
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| Powers of
other person
|
(3) Subject to any limitations specified by
the Commission, a person directed under
subsection (1), other than a Commissioner,
has the powers referred to in section 70 in
relation to the matter before the person.
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| Right to make
submissions
|
72. Where an investigation is conducted
under this Part in relation to a person's
appointment or proposed appointment, that
person and the deputy head in relation to the
appointment - or their
representatives - are entitled to make
submissions to the Commission,
Commissioner or other person, whichever is
conducting the investigation.
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| Re-appointme
nt following
revocation
|
73. Where the appointment of a person is
revoked under any of sections 66 to 69, the
Commission may appoint that person to
another position if the Commission is satisfied
that the person meets the essential
qualifications referred to in paragraph
30(2)(a).
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| Complaint
|
74. A person whose appointment is revoked
by the Commission under subsection 67(1) or
by the deputy head under subsection 15(3) or
67(2) may, in the manner and within the period
provided by the Tribunal's regulations, make
a complaint to the Tribunal that the revocation
was unreasonable.
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| Right to be
heard
|
75. Where a complaint is made under
section 74, the complainant, the deputy head
and the Commission - or their
representatives - are entitled to be heard by
the Tribunal.
|
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| Revocation
set aside
|
76. Where the Tribunal finds a complaint
under section 74 to be substantiated, it may
order the Commission or the deputy head, as
the case may be, to set aside the revocation.
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| Grounds of
complaint
|
77. (1) When the Commission has made or
proposed an appointment in an internal
appointment process, a person in the area of
recourse referred to in subsection (2)
may - in the manner and within the period
provided by the Tribunal's
regulations - make a complaint to the
Tribunal that he or she was not appointed or
proposed for appointment by reason of
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(a) an abuse of authority by the
Commission or the deputy head in the
exercise of its or his or her authority under
subsection 30(2);
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(b) an abuse of authority by the
Commission in choosing between an
advertised and a non-advertised internal
appointment process; or
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(c) the failure of the Commission to assess
the complainant in the official language of
his or her choice as required by subsection
37(1).
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| Area of
recourse
|
(2) For the purposes of subsection (1), a
person is in the area of recourse if the person
is
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(a) an unsuccessful candidate in the area of
selection determined under section 34, in
the case of an advertised internal
appointment process; and
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(b) any person in the area of selection
determined under section 34, in the case of
a non-advertised internal appointment
process.
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| Excluded
grounds
|
(3) The Tribunal may not consider an
allegation that fraud occurred in an
appointment process or that an appointment or
proposed appointment was not free from
political influence.
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| Notice to
Canadian
Human Rights
Commission
|
78. Where a complaint raises an issue
involving the interpretation or application of
the Canadian Human Rights Act, the
complainant shall, in accordance with the
regulations of the Tribunal, notify the
Canadian Human Rights Commission of the
issue.
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| Right to be
heard
|
79. (1) A person making a complaint under
section 77, the person appointed or proposed
for appointment, the deputy head and the
Commission - or their
representatives - are entitled to be heard by
the Tribunal.
|
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| Canadian
Human Rights
Commission
|
(2) Where the Canadian Human Rights
Commission is notified of an issue pursuant to
section 78, it may make submissions to the
Tribunal with respect to that issue.
|
|
| Application of
Canadian
Human Rights
Act
|
80. In considering whether a complaint
under section 77 is substantiated, the Tribunal
may interpret and apply the Canadian Human
Rights Act, other than its provisions relating to
the right to equal pay for work of equal value.
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| Corrective
action when
complaint
upheld
|
81. (1) If the Tribunal finds a complaint
under section 77 to be substantiated, the
Tribunal may order the Commission or the
deputy head to revoke the appointment or not
to make the appointment, as the case may be,
and to take any corrective action that the
Tribunal considers appropriate.
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| Relief for
discrimination
|
(2) Corrective action taken under
subsection (1) may include an order for relief
in accordance with paragraph 53(2)(e) or
subsection 53(3) of the Canadian Human
Rights Act.
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| Restrictions
|
82. The Tribunal may not order the
Commission to make an appointment or to
conduct a new appointment process.
|
|
| Failure of
corrective
action
|
83. Where the Commission has made or
proposed an appointment as a result of the
implementation of corrective action ordered
under section 81, a complaint may be made to
the Tribunal, in the manner and within the
period provided by its regulations, by
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(a) the person who made the complaint
under section 77,
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|
(b) the person who was the subject of the
appointment or proposed appointment
referred to in subsection 77(1), or
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|
(c) any other person directly affected by the
implementation of the corrective action,
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|
on the grounds that the person was not
appointed or proposed for appointment by
reason of an abuse of authority by the
Commission or deputy head in the
implementation of the corrective action.
|
|
| Powers of
Tribunal
|
84. Where the Tribunal finds a complaint
under section 83 to be substantiated, it may
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|
|
(a) order the Commission or the deputy
head to revoke the appointment made as a
result of the implementation of the
corrective action, or not to make the
appointment, as the case may be; and
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|
|
(b) give the Commission or the deputy head
any directions that it considers appropriate
with respect to the implementation of the
corrective action.
|
|
| Right to be
heard
|
85. In the consideration of a complaint
made under section 83, the persons entitled to
be heard by the Tribunal are the persons
entitled to make a complaint under that
section in respect of the corrective action, the
person appointed or proposed for appointment
as a result of the corrective action, the deputy
head and the Commission, or their
representatives.
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|
| Appointment
to other
position
|
86. Where the appointment of a person is
revoked pursuant to subsection 81(1), the
Commission may appoint that person to
another position if the Commission is satisfied
that the person meets the essential
qualifications referred to in paragraph
30(2)(a).
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| Where no
right to
complain
|
87. No complaint may be made under
section 77 in respect of an appointment under
subsection 15(6) (re-appointment on
revocation by deputy head), section 40
(priorities - surplus employees), any of
subsections 41(1) to (4) (other priorities) or
section 73 (re-appointment on revocation by
Commission) or 86 (re-appointment
following Tribunal order), or under any
regulations made pursuant to paragraph
22(2)(a).
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