Public service employment act

• Author: Christopher Rootham
• Pages: 371-418

 

PUBLIC SERVICE EMPLOYMENT ACT

A. INTRODUCTION

is chapter aims to set out the rules governing “employment” or “stang” of

employees whose appointment and employment is governed by the Public Ser vice

Employment Act. at Act governs the appointment of employees to the feder al

public servic e, unless those appoint ments are governed by another statute. Si nce

most separate employers are governed by statutes that grant them the power to

appoint employees to positions, in practice thePublic Service Employment Act

applies primar ily to employees in the core public administ ration.

In most labour law texts, i ncluding texts dea ling with public service labour

law, there is no need to distinguish between “labour” and “employment” law. In

the private sector, “labour law” refers to t he laws governing unionized employees,

and “employment law” refers to the laws governing all employees, regardless of

whether they are member s of a union. Hence, in Ontario, there is a Labour Rela-

tions Act for unionize d employees, and an Employment Standards Act sett ing out

minimum sta ndards that govern unioni zed and non-unionized employees al ike.

In the federal public service, “employment” law refers largely to appointments

to the core public admini stration. While the Public Service Employ ment Act also

governs political activities of public servants and layos, those powers have al-

ready been addressed in prev ious chapters. e core of “employment law” in the

federal public serv ice is about appointments — or, to use jargon common to the

federal public serv ice, “stang.”

ere was nothing requiring the federal government to isolate stang into

a dierent statutory or legal regime from collective bargaining. In Ontario, for

Public Service Employment Act, S.C. , c . , ss. , .

Labour Relations Act, , S.O. , c. , Sch. A.; Employme nt Standards Act, , S.O.

, c. .



         

example, where there is no stat utory “merit principle,” allegations about promo-

tions that are not made according to merit (and seniority) are dea lt with by way

of grievance like any other complaint. e Fryer Report recommended some

level of integration of the “ labour” and “stang” areas, alt hough not a full-scale

integration as is the case in Ontario. e new Public Service Labour Relations

Act does go some way towards that integration by permitting grievances about

deployments, a subject matter that (under the old Act) was dea lt with exclusively

by the Public Serv ice Commission on the “stang” side of the divide. However,

for the most part, the federa l government has decided to deal with appointments

through a specic statutory regime, rather than permit the parties to negotiate

aspects of the promotional proc ess.

e cornerstone of “employment law” in the federal public service is the

“merit principle.” is principle was rst enshrined in the  Civil Service Act

and then extended to employees outside of Ott awa in the  version of the Civil

Service Act. As discussed in the historical overview in Chapter Two, the prin-

ciple of appointment according to merit evolved th roughout the later half of t he

nineteenth centur y and the early part of the twentieth centur y, due to an emer-

ging consensus that appoint ments to the federal civil service shou ld be based on

merit instead of patronage. However, despite that consensus, the term “merit”

was not dened by legislation. Instead, a rich body of jurisprudence developed

(particularly aer employees gained the right to appeal against promotions and

transfers), dening and t hen rening the merit principle.

On  April  the old Public Service Employment Act was repealed and

replaced by a new Act of the same na me. e new Public Service Employment Act

made wholesale changes to the merit principle, including a statutory denition

of merit and a more limited rig ht of appeal against appointments that a re alleged

to b e cont rar y to m erit . Howe ver, a s ex plai ned b elow, t he ol d jur ispr ude nce ab out

the merit principle is sti ll relevant to interpreting t he new Act, and should not be

discarded out of hand.

Finally, it is worth examining why the Public Service Employment Act and

the merit principle were amended in the Public Service Modernization Act,

and whether those amendments were truly necessary. e purpose behind the

amendments to the merit principle a nd the appointments process was to permit

 T.HadwenT. Ha dwen et al.,Onta rio Public Service Emp loyment & Labour Law (Toronto: Irwin

Law, ) at –.

 AdvisoryCommitteeonLabour-ManagementRelationsintheFederalPublicService,Advisory C ommittee on Labour-Man agement Relations in the Feder al Public Servic e,

Working Together in the Public Interest: Se cond Report (Ottawa: Treasu ry Board Secre-

tariat, ) [Fryer Rep ort].

Public Serv ice Labour Relations Act, S.C. , c. , s. .

e Civil Serv ice Amendment Act, , (U.K.), – Edward VII , c. .

e Civil Serv ice Act, (U.K.), – George V, c. .

Public Service Modernization Act, S.C. , c . .

Chapter Eleven: Public Serv ice Employment Act

greater exibility in making appointments to and within the federal public ser-

vice. e minister re sponsible for the Act testied before the Standing Comm it-

tee on Government Operations and Esti mates as follows:

We have all heard the complaints about the current stang system: it is too

cumbersome, too slow a nd too focused on unnece ssary red tape. It is a n obstacle

course. We need to x th is if we want to compete with more agi le employers.

e provisions of the bill are designed to promote increased exibility in

stang. ey w ill improve the way we achieve results for C anadians by ensur-

ing our continued abi lity to put the right people in the r ight place at the right

time.

e federal public serv ice is also rife wit h anecdotal evidence about t he glacial

pace of the appointments process, a nd the inevitable frust ration this caused. No-

where is this better demonstrated that in Sampson v. Canada (Attorney General).

Mr. Sampson had been employed on a term basis as an immigration counselor

with the Imm igration Department since . In , he won a competition for

an indeterminate position in July . Unfortunately for Mr. Sampson, one of

the unsuccessful candidates in that competition appealed against his appoint-

ment. e Public Serv ice Commission Appeal Board a llowed that appeal in Feb-

ruary . e govern ment applied for judicial review, but lost that application

at rst instance in June  before being successful in May . e Federal

Court of Appeal ret urned the matter to the Appeal Boa rd for redetermination on

the basis that the orig inal appeal must be dismissed. However, when Mr. Samp-

son asked to be appointed to the position he had won, he was i nformed that due

to anticipated sta  reductions he would not be appointed to t hat position, and he

was in fact release d from the public service in March  upon the ex piration of

his last term contrac t. Mr. Sampson applied to Federal Court to force the federa l

public service to appoint him but, although expressing sympathy for him, the

Court concluded that the government wa s not obligated to appoint him to a pos-

ition. erefore, Mr. Sampson was denied an indeterminate position in the fed-

eral public serv ice (and the various rig hts to redeployment under the Workforce

Adjustment Directive disc ussed in Chapter Ten) only because another c andidate

launched an unsuccessful appeal, and the appeals process (culminating in the

Federal Court of Appea l) took almost four years to run its course .

Anecdotal evidence, along with more concrete examples such as that of

Mr. Sampson, indicates that the appointments process in the federa l public ser-

vice was problematic. Competitions were taking too long to complete because

managers were worried about appeals, and the appeals themselves were caus-

 Hon.LucienneRobillard(PresidentoftheTreasuryBoard),testimonybeforetheStand-Hon. Lucienne Robilla rd (President of the Treasury Boa rd), testimony before the Stand-

ing Committ ee on Government Operations a nd Estimates,  Febru ary .

 []F.C.J.No.(T.D.).[] F.C.J. No.  (T. D.).