# 2014-202 - Medical Employment Limitation (MEL), Promotion, Promotion Criteria

Case Summary

F&R Date: 2015–03–16

The grievor was first promoted to Sub-Lieutenant (SLt) upon completion of MARS Phase IV training. He had his promotion revoked soon after when the medical officer (MO) confirmed that he had medical employment limitations (MELs) such that he was deemed to be medically unfit. The grievor argued that the form CF 2088, used to notify of change in MELs, was formally approved a full week after his promotion. Thus, he argued that at the time of his MARS Phase IV graduation, he was medically fit.

The initial authority (IA) agreed with the grievor. He argued that the grievor had been placed on MELs subsequent to his promotion, therefore eliminating the MELs as a factor in this matter. He directed the immediate backdated promotion of the grievor to SLt. His Commanding Officer (CO) at the time promoted him in front of his peers, again.

During the promotion screening routine, it was reaffirmed once again that the grievor was not medically fit on the date of his MARS Phase IV graduation and could not have been promoted. As the grievor was still on MELs, his promotion was revoked a second time, prompting a review of the file at the Final Authority level

The Committee had to determine whether the revocation of the grievor's promotion to SLt, on the basis that he was not medically fit, was justified.

The Committee determined that the grievor was promoted on the MARS Phase IV graduation parade without his CO having sought confirmation of his medical fitness from a MO. The Committee found that the grievor was not medically fit on his graduation day and that he did not, therefore, meet the promotion criteria.

Notwithstanding, the Committee found that this case presented “unique, exceptional and compelling” circumstances such that it believed the grievor had been aggrieved nonetheless by having his promotion to SLt revoked twice.

The Committee recommended that the Chief of the Defence Staff exercise his discretionary authority, as per article11.02(2) of the Queen's Regulations and Orders for the Canadian Forces, to waive the medical fitness criterion in this case and promote the grievor to SLt, backdated to the original date indicated in the promotion message.

CDS Decision Summary

CDS Decision Date: 2015–07–14

The FA did not agree with the Committee's recommendation and found that the grievor was treated in accordance with the policies. The FA agreed with the Committee's finding that the grievor was not fit on his graduation day but he was not prepared to use his discretion as prescribed in QR&O 11.02(2) to waive that promotion standard.