Case # 2011-110

Accommodation, Administrative Review, Period of retention, Procedural Fairness, Release - Medical

Case Summary

F&R Date: 2012–03–20

The grievor had a diagnosis of post-traumatic stress disorder. Just prior to being posted in 2008, the grievor was assigned temporary medical employment limitations (MEL) expected to last more than six months. The grievor's posting was subsequently cancelled and the grievor was posted to the Service Personnel Holding List (SPHL) on the recommendation of the Acting Base Surgeon.

In 2009, the Director Military Careers Administration (DMCA) commenced an administrative review (AR)/MEL. The AR/MEL synopsis noted that as the grievor was on the SPHL, a period of retention (POR) was not possible and release was the only option. Consequently, the AR/MEL recommendation was that the grievor be released under the provisions of item 3(b) of the table to Queen's Regulations and Orders article 15.01. However, seven months passed before the DMCA rendered his decision.

During this interim period, the career manager (CM) located a unit with an available position and willing to employ the grievor under a POR. In early 2010, the DMCA issued an AR/MEL decision message confirming that the grievor was being granted a POR until January 2013. The message also stated that during the POR, the AR/MEL would remain open and that the POR could be cancelled at any time if the circumstances changed. In April 2010, the grievor was removed from the SPHL and posted to the new unit with a change of strength date of May 2010.

Prior to his arrival on posting, the grievor contacted his new unit and discussed his work experience as well as details of his medical condition. Shortly thereafter, the unit Chief Warrant Officer (CWO) spoke with the grievor's Commanding Officer (CO). The unit CWO then emailed the grievor's CM, stating that he had had a conversation with the grievor's CO and that, given the nature of the employment and the high-stress environment, his unit could not reasonably expect to employ the grievor. The unit CWO then wrote to DMCA 3-2-2, reiterating that he could not support the grievor's accommodation at his unit. In response, DMCA 3-2-2 wrote to the grievor's CM and CO stating that the grievor could not be advantageously employed. He also requested that the Director Military Careers (D Mil C) cancel the posting and terminate the grievor's POR. In May 2010, D Mil C cancelled the grievor's posting and his POR.

The grievor submitted a grievance in November 2010, just prior to his medical release, objecting to the cancellation of his POR and alleging that his CM had demonstrated animosity towards him and had insinuated that he was “faking” his illness.

In June 2011, the initial authority (IA), the Director General Military Careers, denied the grievance. The IA clarified that it was the DMCA and not the grievor's CM, who had cancelled the POR. The IA stated that the new unit had judged the grievor to be unable to meet their requirements based on his MELs, the information the grievor had provided, and the subsequent conversation between the unit CWO and the grievor's CO. Further, the IA stated that the AR/MEL decision message provided that the POR could be ceased at any time if the circumstances changed.

The Board found that the DMCA, acting on second and third-hand information, made the decision to terminate the grievor's POR without providing notice to the grievor, without disclosing the evidence leading to the decision, and without affording him an opportunity to respond to the evidence under consideration by the decision-maker.

The Board concluded that the decision to terminate the grievor's POR was premature and a breach of the grievor's right to procedural fairness. The Board therefore found that the release decision was invalid.

Further, given the circumstances of this case, the Board found that the breach of procedural fairness that occurred when the grievor's POR was terminated could not be cured through the grievance process. Accordingly, the Board found that the grievor's release should be considered as being void ab initio such that the grievor's employment relationship with the Canadian Forces (CF) had never ceased.

The Board agreed with the IA that there was no evidence of vindictiveness on the part of the CM, nor evidence of any other improper behavior towards the grievor.

The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance.

The Board recommended that the CDS direct that a procedurally fair review examine the circumstances leading to the termination of the grievor's POR in order to determine whether the potential remains for the grievor to be retained on his original POR until January 2013, possibly in a different unit of the CF. Should the new review determine that the grievor cannot be retained, the grievor's release date should be effective the date of the new decision.

CDS Decision Summary

CDS Decision Pending