# 2016-126 - Discrimination


Case Summary

F&R Date: 2016–08–04

The career manager indicated that the grievor, a lieutenant (Navy), was no longer a part of his active posting season (APS) lieutenant commander (LCdr) posting plot because he would be away on parental leave and therefore not able to fill a vacancy. The career manager stated that the grievor would only be considered for promotion and posting in December of that year. The grievor contended that the policy set out in CANFORGEN 073/06 – Effective Promotion Date Policy essentially dictated that he could not be included in the posting plot because a promotion is dependent upon being posted to a LCdr position. He contended that this practice constituted discrimination based on family status. He requested as redress that the policy be amended to eliminate potential discrimination, and that his promotion and posting date be effective during the APS and not in December.

Acting as initial authority (IA), the Director General Military Careers denied the grievance. The IA stated that the grievor was unavailable for posting and employment in a higher ranked position because he elected to take parental leave, and the career manager administered his posting plot with respect to service requirements, as well as CAF members who were available to fill the empty positions. He stated that this was the reason why the grievor was bypassed on the promotion list, and that the grievor was treated in accordance with the promotion policies.

The Committee reviewed the CANFORGEN, the Director Military Careers Standard Operating Procedure 004 and the Military Human Resources Records Procedures; the latter two stating that if a CAF member is on leave without pay for maternity or parental leave, they are not entitled to promotion. The Committee noted that the career manager made it clear that the grievor was not part of the APS posting plot exclusively because he was taking parental leave. The Committee reviewed the Canadian Human Rights Act and determined that the practice of delaying a promotion because a military member is on parental leave constituted a prima facie case of discrimination based on the prohibited grounds of family status. This determination was based on the fact that this practice negatively affected the grievor compared to his peers, and constituted an adverse differential treatment in employment. The Committee suggested that the final authority amend the relevant policies to ensure that they are not contributing to discrimination of CAF members.

The Committee recommended that the grievor be promoted to the rank of LCdr during the APS as opposed to 1 December.

FA Decision Summary

The FA agreed with the Committee's finding that the practice of delaying promotion for those who are on maternity or parental leave is discriminatory under the ground “family status”. Therefore, the FA agreed that the grievor has been discriminated against in contravention of CHRA subsection 3(1). The FA agreed with the Committee's recommendation that the grievor's effective date of promotion to the rank of LCdr be changed and that the associated pay and benefits be adjusted accordingly.

It was the FA's firm belief that the CAF promotion policies and standard operating procedures (SOP) that the lA used to render his decision are discriminatory on the grounds of sex and family status and, therefore, in contravention of CHRA subsection 3(1) and 3(2): these policies need to be reviewed and changed to conform to all aspects of the CHRA. The FA noted that the CMP has recently provided interim direction to revise the promotion policy for members on maternity and paternity leave.

Page details

Date modified: