# 2014-179 - Discrimination, Promotion

Discrimination, Promotion

Case Summary

F&R Date: 2015–05–22

The grievor, a Captain (Capt), was denied attendance on a course by his Career Manager. He alleged that he was unfairly denied the course because he had less than eight years remaining to serve (YRS) before Compulsory Retirement Age (CRA) 55. He also argued that the Land Force Command Order (LFCO) 11-79 – Army Succession Planning policy, promotes age discrimination in favor of younger CAF members.

There was no Initial Authority (IA) decision because the grievor declined an extension request by the IA to review the grievance.

The Committee first looked at the grievor's allegation that the Army Succession Planning policy is discriminatory. The Committee noted that the Army Succession Planning does not apply to the grievor as a Capt and therefore found that the grievor did not suffer age discrimination as a result. In the Committee's view, the policy was discriminatory but, due to the CAF's unique role and mission and its requirement to maintain a predictable flow of incoming and outgoing personnel, the infringement on the Canadian Charter of Rights and Freedoms caused by the policy's use of mandatory retirement provisions is justified.

The Committee also noted that, although the course denied to the grievor is undoubtedly valuable to Capts in his occupation, it was not required in order to perform well at the Capt or Major (Maj) level. The Committee noted that completion of the course earns extra points for potential at the Merit Board for candidates seeking promotion to Maj.

The Committee then considered the evidence submitted by the grievor confirming that he had been denied the course because he had less than eight YRS before CRA 55. The Committee concluded that the grievor had in fact been denied the course because of age discrimination based on the use of the YRS criterion.

The Committee took the position that normal career management for Capts (i.e. course attendance, consideration for promotion to Maj, and postings) should not be employing the YRS criterion and succession planning. The Committee found that it was unfair to use the YRS criterion to determine which Capts should attend the disputed course and recommended that the occupation in question be directed to discontinue their use of the YRS criterion for course selection for Capts. The Committee also recommended that the grievor's file be assessed on its own merit in comparison with other candidates for selection to the course.

CDS Decision Summary

CDS Decision Date: 2016–02–22

The FA agreed with the Committee's recommendation that the grievor's file be assessed on its own merit in comparison with other candidates for selection for the AOC. The Committee found that the ALC was removing files before an analysis of all criteria could be made, using YRS. Therefore, the Committee recommended that the ALC be directed to amend their process to conform to LFCO 11-79 and to cease doing so, and although the FA was silent on this recommendation, he stated that the ALC is to ensure that a full analysis of each file is conducted on all of the criteria.

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