# 2012-085 Careers, Acting Rank, Reversion in Rank

Case Summary

F&R Date: 2012–10–31

The grievor was promoted to acting/lacking Warrant Officer (A/L WO) in 2007 as he had not completed his Intermediate Leadership Qualification (ILQ) course. In July 2009, the grievor declined to take part in the ILQ course scheduled to begin in February 2010 due to his medical condition. In March 2010, medical employment limitations (MEL) were imposed on the grievor, leading to an administrative review (AR/MEL), following which the grievor received an offer of continuing employment in the Canadian Forces (CF) for a period of three years, but at his substantive rank. The grievor accepted the offer and returned to the rank of Sergeant as of 30 October 2010.

In his grievance, the grievor claimed that he had been eligible to complete the ILQ since 2005 but that, despite his requests, his chain of command had told him that operational requirements necessitated his remaining at the unit. According to him, he had been assured that he could complete the ILQ later and that this was no more than a mere formality in view of his imminent substantive promotion. The grievor stated that he had always been recognized for his leadership, his dedication and his hard work; he emphasized that he had worn the rank of WO with pride and successfully accomplished the missions assigned to him during the 46 months that he held this acting rank, both in garrison and on deployment. The grievor requested that the CF recognize his service, his dedication and his sacrifices and allow him to complete his military service with the rank of WO.

The Initial Authority (IA) denied the grievance, indicating that, as the grievor had not completed the ILQ, he could not be promoted to the substantive rank of WO. The IA concluded that the decision to revoke the grievor’s acting rank did not violate policy.

The Board recognized that, under Canadian Forces Administrative Order (CFAO) 49-4, the competent authority “may” revoke an acting rank from a member who was prevented, for various reasons, from taking a course mandatory for his or her promotion. In the case of the grievor, this discretion was exercised and validated by pointing out that it was not contrary to policy. However, the Board was of the opinion that, in order to be fair and equitable, exercise of discretionary power should be made within guidelines. In this sense, although CFAO 49-4 permits withdrawing an acting rank, it does not require an obligatory return to a lower rank under the circumstances present in this case. According to the Board, in such cases, the authorities concerned should review the particular circumstances, and such an analysis is in fact vital since the resulting decision will necessarily have serious consequences for the member’s career. Furthermore, the Board was of the opinion that, should the competent authority conclude that a rank should be withdrawn, it is insufficient for that authority to merely state that they have applied the pertinent policies and exercised their discretion; the authority must provide the reasons that have led to that conclusion.

In light of the grievor’s observed performance and potential, the Board was of the opinion that there was no doubt but that the grievor was a WO equal to the situation and to expectations, both operational and administrative, in garrison and abroad. Although he had not obtained his ILQ, his performance was exceptional to the point of being recommended for promotion to Master Warrant Officer by three different commanders who all praised his service record. Additionally, as indicated on the course’s web site, the ILQ is designed to develop and evaluate the individual capabilities of candidates against the required performance standards for WO rank, and candidates are evaluated in such areas as self-confidence, leadership ability, people skills, management of personnel and other resources, and knowledge of military service, as well as during military exercises; the Board was of the opinion that, under the circumstances, one could reasonably presume that the grievor was achieving the performance standards required for the rank of WO.

Given the grievor's particular circumstances and his impeccable record, the Board concluded that the decision to revoke his A/L WO rank during his period of retention was unreasonable and unjustified. The Board was also of the opinion that, in this exceptional case, the Chief of the Defence Staff (CDS) should order that the grievor be exempted from having to complete the ILQ in order to be given a substantive promotion to the rank of WO.

The Board recommended that the CDS uphold the grievance.

The Board recommended that the CDS exercise his discretion and grant the grievor a substantive promotion to the rank of WO, retroactive to 30 October 2010, with seniority to 1 January 2007.

CDS Decision Summary

CDS Decision Date: 2013–09–17

The FA agreed with the Board's recommendation that the grievance be upheld. The FA agreed with all the Board's findings except the one affirming that the grievor's temporary reinstatement to his rank of acting WO (AL) was not a sufficient remedy and that promotion to a substantive rank would be the appropriate redress. The FA felt, in keeping with paragraph 49 (a) of CFAO 15-2, that if the D Mil C had properly exercised his discretion by permitting the grievor to retain his acting rank the grievor would have retained that rank upon his release under item 3(b). The FA therefore ordered that the retention offer be changed to reflect this. Given the exceptional circumstances and the grievor's abilities as reported by the Board, the FA was of the opinion that the grievor should be given the rank of WO, retroactive to 30 October 2013 until his release date, along with the associated financial benefits.