# 2015-013 - Cease-Training, Pregnancy, Pregnancy – Mandatory Duty Limitations , Prior Learning Assessment Review (PLAR) , Promotion

Cease-Training, Pregnancy, Pregnancy – Mandatory Duty Limitations , Prior Learning Assessment Review (PLAR) , Promotion

Case Summary

F&R Date: 2015–05–29

The grievor was pregnant and medically assessed by her treating Medical Officer (MO) as being fit, with some temporary limitations, to attend basic classification training which included field exercises. The grievor reported to the training and was assessed by the MO in that location (the advising MO) who suggested that she should not be authorized to participate in the training. He referred to Defence Administrative Order and Directive (DAOD) 5003-5 – Pregnancy Administration, which specifically states mandatory duty limitations, including that a pregnant member cannot perform any duties which entail serving in the field or participating in a field operation or exercise. As a result, the grievor was not authorized to commence the training and was returned to her unit.

The grievor argued that the decision to cease her training had very negative consequences on her career because it prevented her from having the qualification to be promoted. She stated that she was diligent in obtaining the necessary approval from her treating physician to attend the course, and was in adequate physical fitness to complete it. Further, she pointed out that the exercise was not a typical field exercise, as it required no weapons or tactical vests/helmets. Portable bathrooms and daily showers were accessible and fresh food and minimum sleeping hours were provided to all students. She requested that the qualification be granted to her, or that a clear explanation be provided with respect to what she needed to do to achieve the qualification. She also requested to be promoted to the next rank and backdated to the day she would have completed the course.

The Initial Authority (IA) partially granted redress by clearly stating the remaining requirements she needed to fulfill the qualification. However, he stated that the decision to cease the grievor's training was made in consultation with the advising MO and in accordance with DAOD 5003-5. He noted that the grievor still required three performance objectives to complete the training and a letter from her Commanding Officer was necessary to grant her equivalency. Lastly, the IA stated that he did not have the authority to promote the grievor; the Chief of the Defence Staff (CDS) did.

The Committee reviewed the wording in both DAOD 5003-5 and Canadian Forces Health Services Instruction 3100-23 – Medical Administration of Pregnant Members. The Committee found the wording in the Instruction allowed for medical employment limitations (MELs) that are case and context specific. Conversely, the wording in the DAOD mandatorily limits a pregnant member from participating in any field operation or exercise without consideration of the unique circumstances of each case.

In a prior case, the Federal Court found that a generalized norm cannot be applied and a specialist's opinion cannot be dismissed without providing a justified basis for overturning the opinion. This was precisely the case at hand: the grievor's treating MO approved her attendance on the course with certain temporary limitations after meeting with her. However, that specialist opinion was overturned by the advising MO, who did not meet with the grievor, and relied solely on the mandatory limitations set out in DAOD 5003-5, without changing her MELs.

It was the Committee's view that the language of the DAOD was too stringent, left no room for individualized application, and would likely result in cases of discrimination.

The Committee reviewed the field exercise syllabus, and determined that there was no medical reason to cease the grievor's training given that her assigned MELs would not have been breached. The Committee found that the grievor was unfairly removed from the course and that her career progression was delayed as a result.

The Committee recommended to the CDS that the grievor's file be assessed to be made whole as quickly as possible with the aim of reducing and eliminating any further delay in her career.

FA Decision Summary

The CDS did not agree with the Committee's findings and recommendation that the grievor's file be assessed. The CDS found that the decision to remove the grievor from the training was reasonable, justified and made in accordance with existing regulations and orders. The decision to sign the grievor's medical chit allowing the grievor to participate in the course was only based on the limited information she provided, whereas the MO at that location had the benefit of a comprehensive course description. The CDS did not find that the existing mandatory duty limitations for pregnant members to be discriminatory: they serve to protect the health and well-being of both the member and her foetus. However, given that DAOD 5003-5 was published almost 15 years ago and that the CAF's treatment of pregnant members has continued to evolve, the CDS agreed with the Committee's systemic recommendation that both DAOD and CFHS Instruction 3100-23 present a clear, reasonable and cohesive approach to the duty limitations imposed on these members.

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