# 2011-108 - Linking Defence Administrative Order and Directive 5023-2 - Physical Fitness Program to Defence...

Linking Defence Administrative Order and Directive 5023-2 - Physical Fitness Program to Defence Administrative Order and Directive 5019-4 - Remedial Measures, Release - Conduct/Performance

Case Summary

F&R Date: 2011–12–14

The grievor, a Reservist on Class B service, was placed on counselling and probation (C&P) after failing to pass the Canadian Forces (CF) EXPRES test. After participating in remedial physical fitness training, the grievor was unsuccessful in meeting the minimum physical fitness standard (MPFS) and was released.

The grievor took issue with the decision stating that although his fitness track record had been less than stellar, he had in fact met the MPFS by completing the CF EXPRES test one day before his effective of release and before the completion of his C&P period. As redress, he requested that he be reinstated and returned to his Class "B" service.

The Board noted that currently, Defence Administrative Order and Directive (DAOD) 5019-4 - Remedial Measures, offers a much more adaptable approach compared to the previous policy which left little room for discretion. In fact, under the current scheme, it would seem possible for a CF member to be placed on C&P more than once for the same deficiency. In the grievor's case, he was placed on C&P twice for having failed to meet the MPFS; during the monitoring of his second C&P, it would seem the grievor's unsuccessful attempt at the CF EXPRES test was deemed serious enough to cancel the remainder of the monitoring period and to initiate release proceedings. The Board found that this decision was within the range of possible "consequential actions" under DAOD 5019-4.

However, the Board also noted that DAOD 5023-2 - Physical Fitness Program, contains a table that sets out the administrative process for CF members who fail to meet the MPFS for reasons within their control. This process consists of four steps. Step 3 indicates "the CF member is placed on C&P, and in a remedial physical fitness training program for twelve weeks normally". The grievor participated in remedial physical fitness training, was reassessed 10 weeks later, and failed his CF EXPRES test. In the Board's view, having failed step 3, the grievor's chain of command should have followed step 4 of the process: the grievor should have remained on C&P, placed in further remedial physical fitness training program for 12 weeks and re-evaluated one more time. In the case at hand, the grievor was released without the benefit of step 4. The Board found that the grievor, while unsuccessful in his first attempt at the CF EXPRES test midway through his period of C&P, did meet the MPFS prior to the end of the monitoring period and successfully completed his C&P.

The Board noted that there may well be a reason why the CF leadership in place at the time decided to provide the grievor with assistance and opportunity to improve his performance by placing him on C&P a second time. On this issue, the Board noted a previous Chief of the Defence Staff (CDS) decision where he agreed with the Board that a CF member's conduct was such that it would have warranted a C&P as a first remedial measure; however, noting that the chain of command of the member in question had decided to take no remedial action, the CDS decided to respect their decision. Similarly, in the case at hand, the Board noted that it was open to the chain of command to decline to provide any further assistance by way of a second C&P; however, they did not and that decision should be respected.

The Board stated that while the CDS does not have the power to administratively reinstate a CF member once released, he could offer the grievor the opportunity to re-enrol.

The Board recommended that the CDS uphold the grievance.

The Board recommended that the CDS ensure the grievor is re-enrolled as quickly as administratively possible and that he is offered a period of Class "B" service commensurate with his rank and experience for a period at least equivalent to the period he would have originally served.

Further, the Board recommended that the grievor's records be amended to show that he was released in error.

From a systemic point of view, the Board also recommended that a reference to DAOD 5023-2 - Physical Fitness Program be included within the body of DAOD 5019-4 - Remedial Measures.

CDS Decision Summary

CDS Decision Date: 2012–04–30

The CDS agreed with the Board's findings and its recommendation to uphold the grievance.

The CDS agreed with the Board's systemic recommendation that DAOD 5023-2 be referred to within the body of DAOD 5019-4; he directed the CMP to examine the issue and determine whether changes to these DAODs are required.

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