CFGB February 2010 eBulletin

Discrimination on the basis of disability

Board Findings and Recommendations

The grievor, a Captain, contended that his previously announced promotion to the rank of Major in June 2006 should not have been deferred pending a decision on career action just because he had been assigned medical employment limitations (MEL). While acknowledging the existence and application of the Universality of Service principle (U of S) to all Canadian Forces (CF) members, he argued that once there was a decision to retain, the CF cannot deprive that member of other employment opportunities on the basis of his disability. The grievor argued that the deferment of his promotion constituted discrimination on the basis of disability.

As redress he requested that the deferral on his promotion be lifted and that he receive back pay to his original promotion date in June 2006.

Notwithstanding his deferred promotion, and subsequent to his grievance, the grievor was posted to a Major's position.

There was no initial authority (IA) decision because the grievor did not grant an extension to the time in which the IA is required to render a decision.

The grievor was provided with materials related to his administrative review (AR)/MEL in November 2007. He provided representation but nothing was heard from personnel authorities until January 2009. At that time, the grievor was advised that his case had been re-assessed and he was being retained in the CF without career restrictions. In the intervening period, a new medical risk matrix for AR/MEL had been developed and the grievor was the beneficiary of that change in policy.

In 2009, the grievor was promoted to Major retroactive to January 2008.

The Board found that the CF authorities were correct to defer the promotion when they did. However, the Board also found that the grievor's effective date of promotion should be backdated to the original June 2006 date because:

• There was no policy specifically addressing the grievor's situation;
• A final decision was never reached in the original AR/MEL process and there was no evidence the grievor's submission was considered;
• The grievor had been serving in a Major's position since July 2006 without the accompanying pay;
• There was a significant delay in providing AR/MEL materials to the grievor;
• The grievor's case was apparently put on hold for a considerable period while the new "matrix" was developed; and
• The grievor was not serving on "retention," therefore, the Director Military Careers Support Services guidelines did not apply.

The Board agreed with the grievor that there might be a legal argument regarding the limits placed on the employment of a CF member whose MEL breached the U of S but who had been retained. Although no specific recommendation was made in this regard, the Board suggested that the Chief of the Defence Staff might want to take this opportunity to review CF promotion policies to ensure that they are in compliance with the Canadian Human Rights Act.

The Board recommended the grievance be upheld and the grievor's promotion be made effective on the original June 2006 date.

Decision of Final Authority

The Final Authority (FA) agreed with the Board's findings and recommendations to uphold the grievance.

In the FA's view, the first issue was that, while the grievor's promotion to major was deferred, his posting into a position calling for the rank of major was not. By posting the grievor into the higher ranked position, an expectation of promotion was assumed. The second issue was that, given the grievor's permanent limitations, it was reasonable to expect that the AR/MEL would be completed in a timely fashion so that the grievor's promotion status would not linger unresolved.

The FA directed that the DGMC promote the grievor to the rank of major with an effective date in June 2006, commensurate with his original promotion message. Since the FA had concerns on deferred promotion and posting into positions of higher rank as it relates to person awaiting results of AR/MEL, the FA also asked that the DGMC review this issue for potential systemic and discretionary effects and, if required, provide clear direction to ensure a consistent and legal approach.