# 2013-036 Careers, Medical Employment Limitation (MEL), Promotion Criteria, Universality of Service Principle

Case Summary

F&R Date: 2013–09–05

The grievor requested a retroactive promotion. He alleged that he was wrongfully precluded from attempting the physical fitness test after the Director Medical Policy amended his medical employment limitations in light of Canadian Forces General Message (CANFORGEN) 187/08 - Use of Medical Matrix for AR/MELS. According to the grievor, because the Director Military Careers Administration determined that he was to be retained without career restrictions, he should have been allowed to attempt the physical fitness test; the grievor argued that, given his standing on the merit list, passing the fitness test would have led to his promotion. Alternatively, should the Canadian Forces (CF) judge that he was not fit to take the physical fitness test, the grievor requested to be medically released.

The Director General Military Careers, acting as the Initial Authority (IA), denied the grievance. The IA stated that the policy provides that a CF member must meet the physical fitness standard in order to be promoted. He noted that the Base Surgeon was of the view that the grievor was not fit enough to take the physical fitness test and that, therefore, the grievor did not meet this promotion criterion. The IA was also of the view that, given his latest medical employment limitations, the grievor was not in breach of the universality of service principle and therefore could not be medically released.

The Committee recommended that the grievance be partially granted and that the grievor be medically released. Based on expert medical advice, the Committee determined that the grievor's condition precluded him from attempting the physical fitness test, that his physical activity was limited in duration and effort and that the grievor remained in breach of the universality of service principle after the publication of CANFORGEN 187/08. With regard to his request for a retroactive promotion, the Committee found that there were no exceptional circumstances that would justify recommending that the Chief of the Defence Staff use his discretionary authority and waive the physical fitness promotion criterion.

CDS Decision Summary

CDS Decision Date: 2013–12–16

The CDS partially agreed with the Committee's findings and recommendations. The CDS agreed that the grievor could not be promoted due to his medical condition, but went further and stated that even if the grievor had met the fitness standard, he would not have been high enough on the list of promotion to be promoted. The CDS also found that it was somewhat unfair to retain the grievor without restrictions, but not allow him to undergo the fitness test. The CDS ordered a medical assessment of the grievor to determine whether he should be medically released.