DAOD 5516-4, Restrictions of Duty

Table of Contents

1. Introduction
2. Definition
3. Operating Principles
4. Assessments
5. Consequences
6. Responsibilities
7. References

1. Introduction

Date of Issue: 2017-01-25

Application: This DAOD is an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Supersession:

• DAOD 5003-1, Restrictions on Duty
• CFAO 20-46, Administrative Policy for Members of a Canadian Force Dispatched Overseas, Annex A, paragraphs 1 to 3

Approval Authority: Chief of Military Personnel (CMP)

Enquiries: Director Human Rights and Diversity (DHRD)

2. Definition

restriction of duty (restriction applicable au service)

A temporary restriction based on one or more of the prohibited grounds of discrimination in subsection 3(1) of the Canadian Human Rights Act, imposed by the CAF on a CAF member on the performance of a duty that the CAF member is otherwise able to perform.(Defence Terminology Bank record number 43232)

3. Operating Principles

3.1 The mandate of the CAF is:

1. protecting Canada and defending its sovereignty;
2. defending North America in cooperation with the United States, Canada's closest ally; and
3. contributing to international peace and security through operations around the world, most often in partnership with allies from other countries.

3.2 To maintain the operational effectiveness of the CAF in order to fulfil its mandate and to protect the safety of CAF members and the public, it may be necessary at times to impose restrictions of duty on CAF members. A restriction of duty may be imposed if the performance of a specific duty by a CAF member poses, or is likely to pose, a real and demonstrable risk to the operational effectiveness of the CAF or the safety of the CAF member, other CAF members or the public. Any restriction of duty must respect the Canadian Human Rights Act (CHRA).

Individual Limitations

3.3 The imposition of a restriction of duty must not take into account the individual limitations of a CAF member, for example, a medical, compassionate or other condition or special need.

Discriminatory Practice

3.4 A “discriminatory practice” for the purposes of the CHRA and the DAOD 5516 series is any discriminatory practice set out in sections 5 to 14.1 of the CHRA. Paragraph 15(1)(a) of the CHRA provides that a limitation that is based on a bona fide occupational requirement is not a discriminatory practice under the CHRA. In the context of the CAF, operational readiness and effectiveness, minimum operational standards, and health and safety must be considered to determine if there is a bona fide occupational requirement.

Conditions

3.5 A restriction of duty may be imposed on a CAF member only if the following four conditions are satisfied:

1. the performance by the CAF member of a specific duty will pose or is likely to pose a risk to the operational effectiveness of the CAF or the safety of the CAF member, other CAF members or the public;
2. the risk is real and supported by documented evidence based on reliable intelligence or other information;
3. the risk constitutes a significantly greater threat to operational effectiveness or safety than that otherwise inherent in the duty; and
4. if applicable, the laws or policies of a host nation would result in a limitation on the duty of the CAF member.

Career Impact

3.6 In order to minimize any potentially adverse effect on the career of a CAF member, a restriction of duty imposed on the CAF member must not:

1. be interpreted as a reflection on the performance, potential or reputation of the CAF member;
2. preclude the CAF member from any opportunity or similar duty in the future; or

3. be mentioned in any personnel appraisal report of the CAF member or during any promotion or succession board concerning the CAF member.

4. Assessments

Operational Risk Assessment (ORA)

4.1 An officer commanding a command (OCC) who is responsible for force employment, or the Vice Chief of the Defence Staff (VCDS) in the case of an out-of-Canada (OUTCAN) posting, must conduct an ORA for each new operation, task, exercise or posting to determine if a restriction of duty is required:

1. because the laws and policies of a host nation differ from those in Canada with respect to a prohibited ground of discrimination, such as sexual orientation, sex, family status or religion; or
2. for any other reason.

4.2 The force employer OCC or the VCDS, as appropriate, must consult with the:

1. Director of Staff, Strategic Joint Staff (DOS SJS);
2. Assistant Deputy Minister (Policy) (ADM(Pol)); and
3. Commander, Canadian Forces Intelligence Command (Comd CFINTCOM).

4.3 When conducting an ORA to determine if a restriction of duty is required, the force employer OCC or the VCDS, as appropriate, must consider the following:

1. the nature of the operation, task, exercise or posting;
2. the duty to be performed, and the qualifications for the duty, as well as the support and services required to enable CAF members to perform the duty;
3. the increase in risk posed or likely to be posed by the performance of the duty;
4. any significantly greater threat caused by the risk to the operational effectiveness of the CAF or the safety of any CAF member or the public;
5. rank requirements, family support if applicable and profile of the duty;
6. the availability of reasonable alternatives to the requirement to impose a restriction of duty; and
7. any undue hardship to the CAF that would be created if a restriction of duty was not imposed.

4.4 The force employer OCC or the VCDS, as appropriate, must monitor the operation, task, exercise or posting to determine if the requirement for any restriction of duty has changed.

Individual Risk Assessment (IRA)

4.5 An IRA is an assessment of the risk that would result from the participation of a specific CAF member in an operation, task, exercise or posting, given the personal circumstances of the CAF member and the requirements of the planned activities.

4.6 A commanding officer (CO) must conduct an IRA in respect of a specific CAF member if:

1. a force employer OCC or the VCDS, having conducted an ORA (see paragraphs 4.1 to 4.4), has determined that a restriction of duty is required, and the conditions in paragraph 3.5 may apply in respect of the CAF member;
2. the CAF member provides information to the CO concerning any additional potential risk posed by the performance of the CAF member of a specific duty on an operation, task, exercise or posting; or
3. a force employer OCC, an officer commanding a formation (OCF) or the CO of a base, wing or unit otherwise considers that the conditions in paragraph 3.5 may apply in respect of the CAF member.

4.7 Because of the security impact and privacy concerns regarding certain prohibited grounds of discrimination, such as national or ethnic origin, sexual orientation or religion, a CAF member upon whom a restriction of duty may be imposed must first be consulted.

Conduct of an IRA

4.8 During the conduct of an IRA, the CO of the CAF member must complete all blocks (a) to (i) in Part 1 of Form DND 4148-E, Request for Restriction of Duty. The CAF member provides comments in block (j) of Part 1.

4.9 The OCF, ADM(Pol) and CMP must subsequently complete Parts 2, 3 and 4 respectively of Form DND 4148-E.

Determination as to Restriction of Duty

4.10 The force employer OCC or the VCDS, as appropriate, having reviewed the information in Form DND 4148-E, including the recommendations and comments of the CO, OCF, ADM(Pol) and CMP, and any comments of the CAF member, must:

1. determine if a restriction of duty is required;
2. complete Part 5 of Form DND 4148-E; and
3. ensure that the CAF member, the chain of command of the CAF member and the Director Military Careers (D Mil C) are informed of the determination.

CAF Member Recourse

4.11 A CAF member who is not satisfied with a determination as to a restriction of duty may submit:

1. a grievance in accordance with QR&O Chapter 7, Grievances;
2. a complaint in accordance with DAOD 5516-1, Human Rights Complaints, in the case of a discriminatory practice; or
3. a complaint to the Office of the Ombudsman for the DND and the CAF in accordance with DAOD 5047-1, Office of the Ombudsman.

4.12 The following flow chart is a visual representation of the risk assessment and restriction of duty process described in this DAOD:

Text version - the risk assessment and restriction of duty process

5. Consequences

Consequences of Non-Compliance

5.1 Non-compliance with this DAOD may have consequences for the CAF as an institution and for CAF members as individuals. Suspected non-compliance may be investigated. The nature and severity of the consequences resulting from actual non-compliance will be commensurate with the circumstances of the non-compliance. Consequences of non-compliance may include one or more of the following:

1. the application of specific consequences as set out in applicable laws, codes of conduct, and CAF policies and instructions;
2. other administrative action; and
3. disciplinary action.

6. Responsibilities

Responsibility Table

6.1 The following table identifies the responsibilities associated with this DAOD:

7. References

Acts, Regulations, Central Agency Policies and Policy DAOD

• Canadian Charter of Rights and Freedoms
• Canadian Human Rights Act
• National Defence Act
• QR&O Chapter 4, Duties and Responsibilities of Officers
• QR&O Chapter 7, Grievances
• DAOD 5516-0, Human Rights

Other References

• DAOD 2017-0, Military Grievances
• DAOD 2017-1, Military Grievance Process
• DAOD 5023-0, Universality of Service
• DAOD 5047-1, Office of the Ombudsman
• DAOD 5516-1, Human Rights Complaints
• B-GJ-005-300/FP-001, Canadian Forces Joint Publication (CFJP) 3.0, Operations
• Form DND 4148-E, Request for Restriction of Duty