eBULLETIN - February 2010

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Contents

Highlights

Case Summaries

Statistics

Mailing List

See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.

Highlights

Discrimination on the basis of sex

The grievor contended that she was discriminated against on the basis of sex, specifically pregnancy, in a selection process for Class B Reserve Service.

Discrimination on the basis of disability

The grievor contended that the deferment of his promotion because of medical employment limitations constituted discrimination on the basis of disability.

Ranking of Task Force Afghanistan Rotation

The grievor submitted that his TFA 1-08 position should be amended to the rank of Sergeant, as he originally accepted, or that he be given given priority to fill another TFA 1-08 Sgt position.

Case summaries

Discrimination on the basis of sex

Board Findings and Recommendations

The grievor contended she was discriminated against on the basis of sex. The grievor was employed in the G3 Tasks position on Class B Reserve Service. At the end of her two-year term, a selection process was held to fill the same position for another three-year term; the grievor applied. There were two candidates interviewed, including the grievor, but neither was offered the position. At the time of the interview the grievor was known to be two months pregnant and the members of the interview board asked her if she was deployable. The grievor took the position that the question was meant to elicit her medical status.

The grievor's original request for redress was to be put in the position she was denied and receive the maternity and parental leave benefits to which she would have been entitled but for the denial of employment. In light of the time elapsed and the resulting change in circumstance, she amended her redress sought to strict financial compensation.

The Board found the grievor was discriminated against by the Canadian Forces (CF). In employment discrimination cases, the complainant bears the burden of proving a prima facie case of discrimination, following which the burden shifts to the employer to provide a reasonable explanation for the conduct in question. The Board found the grievor had proven a prima facie case of discrimination. The Board found the CF had not provided a reasonable explanation for the apparent discrimination. The Board also found it did not have to apply the test for justification of the discriminatory practice because the CF already has an accommodation policy for its pregnant members.

The Board found that the CF owed the grievor a duty to correctly administer the competition for class B employment; that it failed in that duty; and that as a result of that failure, the grievor suffered loss, in particular the financial losses consequent upon her not obtaining the G3 tasks position.

The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance and that the CDS refer the file to the Director Human Rights and Diversity (DHRD) for restitution through an informal resolution.

Informal Resolution

The Board was informed that the grievor had withdrawn her grievance following an informal resolution offered by the DHRD.

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.

Ranking of Task Force Afghanistan Rotation

Board Findings and Recommendations

The grievor, a Sergeant (Sgt) on a five-year leave of absence from the Public Service (PS), was on a period of Class B Reserve Service (Cl B svc) due to end on 31 March 2008. In late 2007 he applied for an operational position on Task Force Afghanistan Rotation 1 of 2008 (TFA 1-08); this position would be Class C (Cl C) svc. The position was advertised as a high/low rank of Sgt/Master Corporal (MCpl). The grievor was the only applicant and was accepted at the rank of Sgt. As a result of this acceptance, the grievor did not reapply for the full-time Cl B svc position he was then occupying nor did he attempt to return to the PS.

Four days before he was due to depart for pre-deployment training, the grievor was advised that the rank for the TFA 1-08 position had been reduced to a high/low of MCpl/MCpl. At this point his PS position had been filled as had the Cl B position he had occupied. The grievor explained that he only agreed to the terms of the down-ranked position because not to do so would have led to foreclosure of his home due to a lack of income to pay the mortgage. As the grievor's Cl C svc had not yet been formally authorized, he proceeded on pre-deployment training on Cl B svc at his substantive rank of Sgt. Some 38 days later his Cl C was authorized at the rank of MCpl, retroactive to his day of departure from his home unit.

As redress, the grievor requested that his TFA 1-08 position be amended to the rank of Sgt or that he be given priority to fill another TFA 1-08 Sgt position.

The initial authority (IA) disagreed with the grievor's conclusion that he had been demoted with a loss of salary and privileges and denied redress. The IA added that the grievor could have declined the position at any time during the 42 days between notification of the rank change and the Cl C svc authorization.

Prior to being referred to the Board, the grievance was reviewed by the Director General Canadian Forces Grievance Authority (DGCFGA). In a synopsis prepared by a member of the DGCFGA staff, the recommendation was to deny the grievance because the grievor had 42 days between notification and the Cl C authorization to seek another position and, ultimately, chose to accept the MCpl position.

The Board did not dispute the facts or timeline involved or the technical correctness of the IA and DGCFGA staff positions. However, the Board took the view that this case was not about a legal or policy question; rather it was a case of doing the right thing for this grievor under his particular circumstances.

The Board found that the notice of the position/rank change provided to the grievor was neither reasonable nor sufficient in the circumstances to allow the member to reconsider his employment with TFA 1-08; nor was it compatible with CF values.

The Board found that the grievor's circumstances met the requirements of Cl C svc employment policy to be over-ranked as a Sgt in the position he held on TFA 1-08 and that the Chief of the Defence Staff (CDS) also had the discretion to unilaterally direct that the grievor's TFA 1-08 position be over-ranked based on the findings in this case.

On another issue, the Board noted that Queen's Regulations and Orders 9.08 provides that Cl C svc on an operation includes travel to and the actual pre-deployment training. Further, Chief of Military Personnel Instruction 20/04 (Administration of Cl A, B and C svc) requires that Cl C svc not be commenced until after it is formally agreed to by the member and an authority message issued. It also provides that Cl C svc is not to be authorized retroactively unless there has been an error. Yet, in this case, the grievor proceeded to the pre-deployment training on Cl B svc and the Cl C svc was authorized retroactively by 38 days.

The compensation and benefit package differs for reservists on Cl B and Cl C svc. The largest differential is in the case of death where the reservist on Cl C svc participates in the Supplementary Death Benefit of 24 month's pay, non-taxable whereas the reservist on Cl B is covered by the Death Gratuity – Reserve Force at 20 month's pay, taxable. Although not quantified in this case, the Board considered that with the existing marginal tax rates, the spouse of a Cl B reservist would receive significantly less than their Cl C member counterpart.

Although this is a single case, the Board considered the issue serious enough to bring to the attention of the CDS in order that he could ensure that future Cl C svc for operations is properly administered and authorized in accordance with regulations and policy.

The Board recommended that the grievance be upheld and the CDS direct that the grievor be over-ranked in the TFA 1-08 position at his substantive rank of Sgt effective the date he traveled to the location of his pre-deployment training for the duration of his Cl C svc.

Decision of Final Authority

The FA agreed with the Board's finding and recommendation to uphold the grievance. He directed that the grievor's rank be changed for his Cl C employment for TFA 1-08 from MCpl to Sgt, including the pre-deployment period, that the MPRR be amended, as well as his pay and benefits as a result of these changes. Following the grievor's amended redress, the FA directed that the grievor be re-awarded his General Campaign Star to reflect the rank of Sgt.

Statistics

Category of grievances received since 2007

Data as of February 5, 2010

Findings and Recommendations (F&R) rendered in 2009

107 cases as of December 31, 2009

Decisions rendered by the CDS

78 received between January 1, 2009 and December 31, 2009