# 2014-127 - Canadian Forces Performance Appraisal System (CFPAS), Discrimination, Remedial Measures

Case Summary

F&R Date: 2014–12–12

The grievor failed on several occasions to meet the minimum standard of the CF EXPRES test, which is designed to measure the overall fitness level of military members. To meet this standard, all members of the Canadian Armed Forces (CAF) must pass the four components of the test. Failure to meet the standard triggers an administrative process under the Defence Administrative Orders and Directives (DAOD) 5023-2, Physical Fitness Program. Following her failures, corrective measures were imposed on the grievor. She filed a grievance in which she stated that the CAF was practicing discrimination in requiring female personnel to perform push-ups supported on their toes during the CF EXPRES test. As the grievor had denied a request for a deadline extension, the Initial Authority did not render a decision.

The Committee was required to determine whether the CAF's requirement that the grievor perform push-ups during the CF EXPRES test constituted discrimination against her. The Committee also had to determine whether the corrective measures imposed on the grievor were warranted.

The Committee was of the opinion that the grievor had failed to demonstrate that the CAF had practiced discrimination in obliging her to perform push-ups supported on her toes as part of the CF EXPRES test. The Committee noted that the required standard for push-ups had been adapted over the years, mainly to recognize physiological differences relating to sex and age, and that the repeated failure of a member to meet the minimum physical fitness standard did not necessarily result in his or her release.

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The Committee concluded that under DAOD 5023-2, which was in effect at the time of her initial failures, the recorded warning that the grievor had received should be maintained.

The Committee did note, however, that effective 28 March 2008, any member who failed the CF EXPRES test and had been issued a recorded warning could request a reassessment based on the common military tasks. Therefore, the Committee found that as of that date the grievor should have been offered a re-evaluation based on the common military tasks, an evaluation that has no push-up component.

The Committee also noted that on 1 April 2014, the CF EXPRES test was replaced by the FORCE evaluation, whose components are considered more accurate in predicting performance relating to the common military tasks and are more precise than the traditional exercises found in the CF EXPRES test. The Committee noted that after further failures, which were interspersed with successes in meeting the CF EXPRES test fitness standard, the grievor was finally given the option of an evaluation using the FORCE test, which she passed. The Committee therefore concluded that the measures taken following the grievor's repeated failures on the CF EXPRES test had not always complied with the version of the DAOD 5023-2 in effect at that particular time. The Committee also opined that if, starting in December 2008, the grievor had been given the option of being assessed based on the common military tasks, she would most likely have passed the test and avoided any subsequent failures. The evidence on file therefore shows that it was not so much the grievor's fitness that led to her failures but rather a specific problem with push-ups. The Committee therefore found that the grievor should be given some benefit of the doubt and that the corrective measures taken against her after 28 March 2008 should be cancelled.

The Committee recommended that the Chief of the Defence Staff order the withdrawal of the corrective measures in question and that all related correspondence on the grievor's personnel file be removed and disposed of in accordance with the Library and Archives of Canada Act. It also recommended that the impact of these changes be reflected in the grievor's Personnel Evaluation Reports, in terms of both performance and potential. Finally, the Committee recommended that the grievor's file undergo an administrative review in order to determine the competitiveness of her file regarding promotion and to decide whether further changes are necessary.

CDS Decision Summary

CDS Decision Date: 2015–08–27

The FA agreed with the Committee's Findings and Recommendations. The FA ordered that the grievor's Personnel Evaluation Reports be amended to reflect the proposed changes and that an Administrative Review be carried out to determine the competitiveness of the grievor's file, concurring with the Committee's recommendations in that regard.