# 2013-062 Careers, Accommodation, Procedural Fairness, Release - Medical, Review of Retention Policies –2013 Update

Case Summary

F&R Date: 2013–12–30

The grievor was placed under Medical Employment Limitations (MEL), which contravened the principle of universality of service. As a result, he had to be released on medical grounds under item 3 b) of article 15.01 of the Queen's Regulations and Orders for the Canadian Forces. As part of the administrative review process, the unit Commanding Officer (CO) supported the offer from the Director Military Careers Administration (DMCA) to retain the grievor in a transitional position for a period of three years.

During this period, the grievor filed a harassment complaint against a member of his unit. The unit CO rejected the complaint, indicating that there was no evidence of harassment. After the complaint was filed, the grievor's doctor prescribed sick leave. One of the reports indicated that the grievor had been subject to stress at work. Although the grievor had begun working three days a week as part of a gradual return to work program, the unit CO informed the grievor and DMCA that he was officially withdrawing his support for retention because the limitations were preventing the grievor from fully carrying out his duties. The DMCA accordingly terminated the period of retention.

The grievor filed two grievances, one disputing the DMCA's decision to end his period of retention and the other contesting the denial of his harassment complaint.

The Initial Authority concluded that the harassment complaint had not been handled appropriately and that the grievor's allegations, as stated, met the definition of harassment if valid.

Regarding the grievance over the cancellation of the period of retention, the grievor claimed that he had been placed on sick leave because of anxiety and mental health problems arising from workplace harassment. He pointed out that he had not received a copy of the unit CO's letter of intent ending his retention period and that he had been given no opportunity to submit comments to the DMCA before a decision was rendered.

The Initial authority was of the view that the grievor's right to procedural fairness had been violated when the DMCA failed to send him the correspondence from the unit CO requesting termination of the period of retention. Moreover, the grievor had not been given the opportunity to submit his comments to the DMCA before a decision was rendered.

The opinion of the DMCA was that procedural fairness had been respected because the grievor's release date had been delayed in order to remedy the lack of procedural fairness and to enable the grievor to take the Vocational Rehabilitation Program for Serving Members. In addition, the grievor's stress problems were related, in his opinion, to his permanent medical employment limitations. In other words, there was no need for a new administrative review because the decision to postpone the grievor's release was an integral part of the potentialities/consequences of his retention and was a simple follow-up of the initial administrative review.

Defence Administrative Orders and Directives (DAOD) 5019-2 – Administrative Review, defines the procedural fairness measures to be respected during an administrative review.

The Committee noted that the DMCA had simply acceded to the CO's request to end the grievor's retention period, thereby agreeing that the grievor's medical condition had worsened. More specifically, no one questioned the CO's requirements; no one looked into the reasons for the new medical limitations or the fact that the doctor characterized them as temporary; no one was aware that the grievor was complaining of harassment within his unit and that his CO, without an investigation, had rejected the complaint; and no one had considered whether the grievor might be accommodated within another unit. The Committee pointed out that all these issues should have been examined by the DMCA during a fair administrative review.

The Committee was therefore of the opinion that if another administrative review had been held, and the veracity of the grievor's harassment allegations had been verified, the DMCA might have concluded that the CO's request was premature and that the grievor might have proven his fitness to resume his full-time job until the end of his retention period.

The Committee therefore recommended that the Chief of the Defence Staff (CDS) partially uphold the grievance, thus confirming that the DMCA's decision had been rendered following an unfair process and without consideration of all the facts. The Committee also recommended that the CDS ask the Director Claims and Civil Litigation to consider the grievor's request for financial compensation.

Finally, the Committee updated a systemic recommendation (file 2011-110) regarding the need to review the policy on periods of retention.

FA Decision Summary

The CDS concurred with the Committee's finding that the grievor had been aggrieved, but partially agreed with its recommendations. The CDS found that he did not have the authority to grant the redress sought, but offered the grievor an ex gratia payment of $50,000 pursuant to the discretionary powers granted to him. The CDS stated that while the CAF can put an end to a period of retention (POR) when a CAF member breaches one of its conditions, the decision maker still has a duty to ensure procedural fairness. Contrary to DMCA's point of view, the CDS found that a decision to terminate a POR early is a new decision affecting the member's release, to the same extent as would an AR/MEL. The CDS stated that DMCA had simply accepted the CO's request to terminate the grievor's POR early without questioning whether his medical condition had worsened, while in fact it had only changed temporarily, and without having before him all of the required information, including the grievor's representations. With regard to the grievor's harassment allegations, the CDS said to be preoccupied by the CO's unjustified rejection of the grievor's complaint without further investigation. The CDS found that the grievor had been the victim of reprisal action for having submitted a harassment complaint.