Case # 2009-055

Leave entitlement, Release - Medical, Release date

Case Summary

F&R Date: 2009-11-27

The grievor’s request not to be posted, in order to address his medical conditions at his current location, was refused because it was considered there were sufficient medical facilities at the new location. As a result, he requested a voluntary release, with retirement leave to commence in September 2006 and release in January 2007. While on retirement leave, the grievor’s release date was twice extended to accommodate 37 days of sick leave, to February 2007. Also during his retirement leave, he was awarded medical employment limitations (MEL) that were found by an administrative review (AR) / MEL to be in breach of the universality of service principle. The AR/MEL did not consider retention because the grievor was already on retirement leave. In December 2006, the grievor was advised that his release item had been changed from voluntary to compulsory - for medical reasons. The grievor requested a 30-day extension to his release date to accommodate surgery that was expected to take place in March 2007. This request was refused on the basis that there was no firm date for the surgery, the prognosis was excellent, and the grievor was expected to transition to civilian medical care.

Consequently, he submitted two grievances in February 2007. One contended that he was unfairly denied the 30-day extension to his release date to accommodate his surgery and various medical and dental appointments. The second contended that the medical and dental appointments he attended while on retirement leave as well as the time spent recuperating should have been completed prior to the start of that leave.

As redress, the grievor requested that his release date be extended by 30 days and that he be credited with 44 days leave for the leave time he spent attending medical and dental appointments along with associated recuperation time.

The initial authorities denied redress. The Director General Military Careers stated that there was no military reason to extend the grievor’s release date because the evidence on file indicated that his surgery could be performed by a civilian surgeon. The Director General Health Services (DGHS) explained that the grievor’s medical appointments during retirement leave were of varying degrees of urgency but did not consider that any were emergent in nature and did not fall within the DGHS Guidance for the granting of sick leave while on retirement leave.

The Board found that the appointments attended by the grievor during retirement leave would normally have been attended on duty and that the amount of time equated to eight days.

The Board found that the grievor should have been provided with the six months notice that is provided to all members on a medical release; there being no reason why he should be denied the benefit despite that his initial release item was voluntary.

The Board recommended that the grievor’s release date be extended to cover the six-month notice of a medical release from the date his release item was changed from voluntary to medical and that it encompass the eight days leave expended on attending medical and dental appointments.

CDS Decision Summary

CDS Decision Date: 2010-06-18

The CDS did not agree with the Board's recommendation to uphold the grievance. The CDS disagreed with the Board's finding to reimburse the grievor eight days of annual leave because the medical and dental appointments should have been completed prior to the commencement of the grievor's retirement leave. However, the CDS found that given the circumstances and serious nature of the grievor's medical condition, the CF bore a moral obligation to schedule and ultimately complete the surgical procedure prior to his release. The CDS granted partial redress by approving a 30-day extension to the grievor’s release date in consideration of his surgical procedure and associated sick leave.