# 2013-038 - Administrative Review Process, Medical Employment Limitation (MEL), Procedural Fairness, Release -...

Case Summary

F&R Date: 2013–08–29

The grievor, a Reservist, was awarded medical employment limitations (MEL) which breached the universality of service principle. Due to an oversight, an administrative review (medical employment limitations) (AR/MEL) was not conducted until years after, that is until the grievor's three-year period of Class B service was up for renewal. The AR/MEL concluded that the grievor should be released from the Canadian Forces under item 3(b) to the table in Queen's Regulations and Orders for the Canadian Forces 15.01 at the end of the period he was currently serving. The greivor's period of service had been extended a further nine months by his Commanding Officer (CO) to allow the AR/MEL process to run its course and afford the grievor the opportunity to partake in vocational rehabilitation opportunities. The grievor alleged that the AR/MEL was incomplete and fundamentally flawed as the decision to release him was made by the improper authority, the Area Commander, vice the Director Military Careers Administration (DMCA). The grievor requested a further extension to his period service to allow for the continuity of medical care and vocational rehabilitation, which he believed he was entitled to following DMCA's decision.

The Initial Authority (IA) denied the grievance, acknowledging that the release authority changed midstream and, as a result, the Area Commander did not have the authority to release the grievor under item 3(b). However, the IA noted that this oversight had been rectified and the grievor's file was sent to the DMCA, who confirmed that the medical employment limitations breached the universality of service principle and confirmed the release decision. The IA also noted that the grievor had not availed himself of vocational rehabilitation opportunities during the extension to his period of service granted by his CO.

The Committee reviewed the relevant policies, including Defence Administrative Order and Directive 5019-2 – Administrative Review, which sets out the minimum steps required to ensure a procedurally fair process. After reviewing the process in the grievor's case, the Committee concluded that his right to a fair process was not infringed, such that it was not required to redo the process. In essence, the grievor knew that his release was being considered, he was given an opportunity to make representations during the process and despite the release authority changing midway through the process, the appropriate authority made the final decision regarding release. The Committee also concluded that given the circumstances of the grievor's case, he had been offered a reasonable opportunity to take advantage of the vocational transition program and was not entitled to further service by policy.

The Committee recommended that the Chief of the Defence Staff deny the grievance.

CDS Decision Summary

CDS Decision Date: 2014–04–11

The CDS agreed with the Committee's findings and recommendation that the grievance be denied.