# 2016-109 - Class B Reserve Service, Relinquishment of Rank, Reserve Employment Process

Case Summary

F&R Date: 2016–08–26

The grievor claimed that it was unfair of the Director Reserve Support Management (DRSM) to deny his request to be promoted back to his substantive rank after having temporarily relinquished that rank for the period that he was employed on class B reserve service. Having suffered an injury while so employed, DRSM determined that the grievor no longer met the universality of service (UoS) requirements and was no longer entitled to be promoted back to his former rank. As redress, the grievor requested to be promoted back to his substantive rank or be provided with appropriate reasons why this was not possible.

The initial authority (IA) was unable to render a decision within the time limits prescribed in Queen's Regulations and Orders for the Canadian Forces (QR&O) paragraph 7.15(2). Nonetheless, a synopsis of the grievance was completed by the analyst at the IA level. The analyst found that once the grievor relinquished his rank, promotion back to his former rank was not automatic, but subject to the grievor meeting all of the normal criteria for promotion. Given that the grievor did not meet the UoS requirements due to his medical condition, the analyst recommended that the grievance be denied.

The Committee found that at the time of the class B hiring process, there was no qualified candidate at the appropriate rank level. Therefore, in accordance with paragraph 4.8 of Canadian Forces Military Personnel Instruction 20/04, the grievor, whose substantive rank was one level higher than the position, could be considered. Furthermore, the Committee determined that the grievor should not have been required to relinquish his substantive rank to fill the class B position as there was no evidence that the unit was unable to accommodate his substantive rank.

The Committee recommended that the grievor's class B terms of service (TOS) be amended to show that he was employed at his substantive rank; thereby rendering the promotion issue moot.

In the event that the CDS did not agree, the Committee proceeded to review the grievor's situation from a promotion perspective.

The Committee found no indication in policy that the grievor's promotion back to the substantive rank he held, prior to relinquishing it for the purpose of filling a temporary military requirement, was competitive in nature. In the absence of any exceptional circumstances, such as inefficiency or civil conviction, the Committee determined that the grievor should have been automatically promoted back to his substantive rank.

Therefore, the Committee recommended, in the alternative, that the grievor be promoted back to his substantive rank as of the end of his class B TOS.

In the event that the CDS might disagree and find that the promotion back to the grievor's substantive rank was in fact competitive, the Committee found that it would be an appropriate case for the CDS to waive the requirement to be medically fit.

The Committee recommended, in the further alternative, that the CDS use the discretion found in QR&O 11.02(2) to waive the medical criterion and promote the grievor back to his substantive rank at the end of his class B TOS.

FA Decision Summary

The FA disagreed with the Committee's assertion that the grievor could have retained his substantive rank for a three year period of Class B Reserve Service. However, he agreed with most of the Committee's findings and recommendation and found that the grievor was aggrieved by the CAF's denial to reinstate his former substantive rank at the end of a period of Class B Reserve Service for which he had temporarily relinquished his rank. Agreeing with the Committee, the FA noted that medical restrictions are not considered to be a substantive reason for which a rank reversion can be administered. The FA granted the grievor's request to be reinstated to his substantive rank.