# 2012-061 Releases, Accommodation, Medical Employment Limitation (MEL), Release - Medical

Case Summary

F&R Date: 2012–08–31

The Grievor, a Regular Force member, was the subject of Medical Employment Limitations (MELs) that violated the principle of Universality of Service (U of S) and infringed the Bona Fide Operational Requirements (BFOR) associated with the liabity to perform any lawful duty. She was therefore released under Item 3(b) of the table to Article 15.01 of the Queen’s Regulations & Orders for the Canadian Forces on medical grounds.

The Board therefore had to determine whether the Grievor’s release under Item 3(b) was justified or whether she would have benefitted from retention measures.

The Grievor challenged the fact that she was not offered a retention period with employment limitations. She stated that the decision to release her was in contravention of the Canadian Human Rights Act (CHRA) and the Canadian Forces’ (CF) duty to accommodate. She indicated that she had demonstrated her know-how, her commitment, her reliability, her work attendance and her performance of the tasks assigned her by the CF for over 30 years. Finally, she disputed the CF’s argument that she did not possess any unique job skills that the CF urgently needed.

The Grievor’s Career Manager (CM) stated that a retention period with employment limitations is granted only if one of two criteria provided in Defence Administrative Orders and Directives 5023-1 is satisfied, namely, that there be a significant shortage in the member’s occupation or that the member possesses a specific and unique occupational skill that is required. Regarding the Grievor’s situation, the CM pointed out that there was no significant shortage at the Sergeant (Sgt) rank in her occupation and that she did not have any precise occupational skill that was being sought.

As the Grievor had refused a request for extension submitted by the office of the Director Military Careers Policy and Grievances (DMCPG), the grievance was sent to the Board without a decision having been rendered by the Initial Authority. However, a DMCPG analyst wrote a synopsis which indicated that an occupation experiences a significant shortage when the active qualified staffing level is more than 10% below the preferred staffing level. He indicated that the Grievor’s occupation was not in a significant shortage and that there was no suitable position for the Grievor. That being said, he concluded that a retention period with employment limitations during a transition period could not be justified under the circumstances.

The Board first examined the Administrative Review (AR) process for MELs and concluded that it had been conducted in accordance with the policies and regulations in effect, and that the conclusion of the AR/MEL – that the Grievor’s MELs violated the principle of U of S as well as the minimum criteria for her military occupation – was justified.

The Board then examined whether the Grievor should have been kept on strength in the CF and concluded that she should not, as her occupation was not experiencing any serious shortage at the Sgt rank and she did not possess any unique job skills. The Board also noted that the Grievor had benefitted from a period of service of almost seven years with MELs, and that the information in the file suggested that this situation had adversely affected unit effectiveness in addition to creating an additional burden for the other members of the unit. In consequence, the Board concluded that the decision to not keep the Grievor in her position for an additional retention period was reasonable and consistent with applicable guidelines.

Concerning the Grievor’s argument that the refusal to grant her an accommodation period was contrary to the CHRA, the Board indicated that the mission of the CF is to defend Canada, her interests and values, in addition to contributing to peace, and that they had to be able to maintain strict standards for the organization to operate smoothly. The Board was therefore of the opinion that the refusal to grant a retention period and the compulsory release of the Grievor were not contrary to the CHRA, as the CF had demonstrated that the decision emanated from BFORs.

The Board therefore recommended that the Chief of Defence Staff deny the grievance.

CDS Decision Summary

CDS Decision Date: 2013–03–19

The CDS agreed with the Board's fndings and recommendation that the grievance be denied.