46Action by Agency Head

#### 46 Action by Agency Head (1) If an Agency Head receives a recommendation under section 42 or 45 following a review of an APS action, the Agency Head must, as soon as reasonably practicable after receiving the recommendation: (a) consider the recommendation; and (b) make a decision about the recommendation. (2) For the purposes of paragraph (1)(b), the Agency Head may: (a) confirm the action; or (b) vary the action; or (c) set the action aside and substitute a new action. (3) If the Agency Head acts in accordance with the recommendation, the Agency Head is not required to seek the view of the affected employee before acting on the recommendation. > Note: The views of the affected employee should have been sought by the Merit Protection Commissioner during the review in accordance with the principles of procedural fairness. (4) Subsection (2) does not limit the employer powers of the Agency Head in relation to the action or the affected employee. > Note: Example: The Agency Head may take other appropriate action to rectify effects of the action or restore the affected employee to the position in which the employee would have been if the action had not been taken. (5) If, after considering the recommendation: (a) the Agency Head considers making a finding of a breach of the Code of Conduct; and (b) the Agency Head had not made the finding before the recommendation was made; and (c) the finding was not mentioned in the recommendation; the Agency Head must comply with the procedures established under subsection 15(3) of the Act before deciding whether to make the finding. (6) If, after considering the recommendation: (a) the Agency Head considers imposing a sanction for breach of the Code of Conduct that the Agency Head had not imposed before the recommendation was made; and (b) the sanction was not mentioned in the recommendation; the Agency Head must comply with the procedures established under subsection 15(3) of the Act before deciding whether to impose the sanction. (7) The Agency Head must tell the affected employee and the Merit Protection Commissioner in writing of: (a) the decision mentioned in paragraph (1)(b); and (b) the reasons for the decision. > Note: Subsection 33(6) of the Act allows for matters to be reported to an Agency Minister, and the Prime Minister or the Presiding Officers for presentation to the Parliament, if the Merit Protection Commissioner is not satisfied with the response to recommendations contained in a report to an Agency Head.