# 2011-066 Careers, Administrative Action, Career Action, Qualification standards

Case Summary

F&R Date: 2011–10–26

The grievor failed the Land Force Command Physical Fitness Standard (LFCPFS) evaluation. As a result, the grievor received initial counselling (IC) and his promotion to the rank of warrant officer (WO) as well as his assignment to a position requiring that rank, which were scheduled for a few months later, were cancelled.

The grievor submitted a grievance challenging the determination that he had failed, stating that he had gone to considerable effort to succeed and that his failure was due to numerous departures from the instructions on the day of the test. He asked that the result be changed to a pass, that he be promoted to WO retroactively and that he be transferred as previously planned.

The initial authority (IA) rejected the grievance. The IA concluded that the conditions in place at the time of the test were on the whole reasonable, appropriate and in keeping with the spirit of the standard. According to the IA, the limiting factors described by the grievor had only a marginal impact and were not enough to justify the failure.

The Board noted that the grievor had failed a first attempt at the EXPRES test on 28 June 2010 and had finally passed on 15 December 2010. He had then been promoted to WO on 16 December and transferred in July 2011.

In its review, the Board found that many of the mandatory and essential conditions of the LFCPFS evaluation set out in the regulations in effect at the time had not been met. The Board also noted that Defence Administrative Order and Directive (DAOD) 5023-2 - Physical Fitness Program – requires that the commanding officer (CO) examine the circumstances in the case of a failure to determine the reasons and to determine whether remedial measures are necessary. This directive stipulates that the CO must take remedial measures unless he concludes that the CF member failed for reasons beyond his control.

The Board was of the opinion that the grievor could not be given a pass mark for a test he had failed; however, the Board was also of the opinion that the failure to meet mandatory procedural conditions cast doubt on the integrity of the evaluation. Under the circumstances, the Board concluded that the failure was due to reasons beyond the grievor’s control and that the CO’s decision to administer an IC was not reasonable. However, the Board was of the opinion that the failure on the EXPRES test in June 2010 was due solely to the grievor and that, as a result, he deserved an IC, as required by DAOD 5023-2.

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

The Board recommended that the CDS order that the date of the grievor’s promotion to the rank of WO be changed from 16 December to 15 December 2010.

The Board recommended that the CDS order that the IC the grievor received on 28 April 2010 be cancelled and replaced with another IC dated 28 June 2010 because of the failure on the EXPRES test.

CDS Decision Summary

CDS Decision Date: 2012–02–15

The final authority partially agreed with the Board's findings and recommendations. It determined that the mention that the grievor failed the course must be replaced to indicate that the course has not been completed. The final authority agreed with the Board's recommendation to order the cancellation of the first IC and another IC be granted because of the failure on the EXPRESS test. The final authority does not agree with the Board's recommendation that the promotion date be changed.