# 2014-072 - Acting Rank, Medical Employment Limitation (MEL), Reversion in Rank

Acting Rank, Medical Employment Limitation (MEL), Reversion in Rank

Case Summary

F&R Date: 2014–09–26

The grievor was promoted to the rank of Acting Lacking Sergeant (AL/Sgt), having not yet completed the QL6A Qualification training at the time of his promotion. Although he began the training on two occasions, he was unable to complete it owing to temporary Medical Employment Limitations (MELs). After the second occasion, the Director Military Careers Administration (DMCA) conducted an administrative review (AR) which recommended that the grievor be reverted to the rank of Master Corporal (MCpl) pursuant to paragraph 14(c) of Annex C to the Canadian Forces Administrative Orders (CFAOs) 49-4. The grievor opposed this recommendation explaining that paragraph 14(c) did not apply in his case. The DMCA made the decision to revert the grievor to the rank of MCpl in May 2013 under paragraph 14(d).

The grievor challenged that decision, stating that paragraph 14 of Annex C as a whole did not apply in his case. He also claimed that there were breaches of procedural fairness as, according to him, the actual reason for the decision was not previously disclosed to him, thus denying him the opportunity to make his submissions with respect to paragraph 14(d). He sought to be reinstated to the rank of AL/Sgt until such time as he was able to resume the Qualification training.

The initial authority (IA) denied the grievance, indicating that the grievor's medical condition prevented him from completing the QL6A Qualification training, which is required in order to receive the qualification required and thus retain the rank of Sgt. The IA concluded that the decision to revert the grievor to the rank of MCpl was in accordance with the policy and that the grievance process had offset the breach of procedural fairness. The Committee had to determine whether the decision to revert the grievor to the rank of MCpl was consistent with the applicable policies.

The Committee recognized that CFAO 49-4 allows the appropriate authority to revoke the acting rank of a member who was unable to complete a course that is a prerequisite for his or her promotion. However, the Committee explained that this CFAO also grants the Canadian Armed Forces (CAF) the flexibility required, in exceptional circumstances, to allow a member to retain his or her acting rank in spite of the impossibility of meeting all the promotion criteria.

The Committee noted that the grievor was assigned permanent MELs in August 2013. Prior to that date and over the course of the AR in May 2013, the grievor was issued temporary MELs. According to the Committee, until permanent MELs were assigned to him, it was conceivable and reasonable to hope that the grievor would regain his health through the care and support of health services and that he could continue his training and service in the CAF. Accordingly, the Committee concluded that the grievor's situation was not like that described in paragraph 14 at the time of the AR and that indeed paragraph 14(c) could not apply prior to August 2013.

The Committee found that the AR was premature and that it should not have been undertaken until after the permanent MELs were assigned in August 2013. The decision to revoke the acting rank, if any, should have been made at the end of the AR process. During that period, the grievor would have retained his acting rank. The Committee estimated that a six-month delay from the beginning of the process to the approving authority's decision was reasonable; a standard frequently used in career decision matters. The Committee indicated that the grievor's reversion to the rank of MCpl in February 2014 would have been just and equitable in the circumstances.

The Committee recommended to the Chief of the Defence Staff that the rank reversion date should be amended from May 2013 to February 2014 and that the necessary adjustments should be made to the grievor's personnel records and to his pay account.

CDS Decision Summary

CDS Decision Date: 2015–02–23

The CDS did not agree with the Committee's findings and recommendation. The CDS was of the view that D Mil C used his discretionary authority to conduct an AR within the policy's parameters. The CDS found that without the NQ 6A, he could not support that the grievor keeps his acting rank.

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