77Action by Agency Head

77 Action by Agency Head

(1) If an Agency Head receives a recommendation in relation to a determination under section 76, 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 determination; or (b) vary the determination; or (c) set the determination aside and substitute a new determination. (3) If the Agency Head acts in accordance with the recommendation, the Agency Head is not required to seek the view of the affected former employee before acting on the recommendation.

Note: The views of the affected former 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 determination or the affected former employee.

Note: Example: The Agency Head may take other appropriate action to rectify effects of the determination or restore the affected former employee to the position in which the affected former employee would have been if the determination had not been made.

(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) The Agency Head must tell the affected former employee and the Merit Protection Commissioner in writing of: (a) the decision mentioned in paragraph (1)(b); and (b) the reasons for the decision.