# 2016-195 - Class B Reserve Service, Reserve Employment Opportunity (REO), Reserve Employment Process, Reserve Force, Staffing of Cadet Organizations Administration and Training Service Positions

Class B Reserve Service, Reserve Employment Opportunity (REO), Reserve Employment Process, Reserve Force, Staffing of Cadet Organizations Administration and Training Service Positions

Case Summary

F&R Date: 2017–05–04

The grievor, a Major (Maj) in the Cadet Organizations and Administration Training Service (COATS), disputed the decision of his Commanding Officer (CO) to select an under ranked officer for a vacant Maj's position for which the grievor was qualified and had applied.

Initially, the CO selected the under ranked officer for the position using a Competency Based Appointment (CBA) process. When the grievor challenged the validity of that CBA process, the CO retracted the appointment and had the position advertised through a Reserve Employment Opportunity (REO) process. When the same under ranked officer was appointed to the position following the REO process, the grievor submitted a grievance, suggesting that the CO's decision violated the Canadian Forces Military Personnel Instruction (CF Mil Pers Instr) 20/04 policy.

The Initial Authority (IA), the Commander National Cadet and Junior Canadian Rangers Support Group (Comd Natl CJCR Sp Gp), determined that the CO was not obligated to select the grievor for the position using the CBA process. The IA also determined that the CO's decision to appoint the under ranked officer to the Maj's position did not contravene policy. Consequently, the IA denied the grievance.

This same issue was previously examined by the Committee in 2009, at which time the Committee found that CF Mil Pers Instr 20/04 did not support the hiring of an under ranked officer for a vacant position when there was one or more suitable at rank applicants seeking the position. The Final Authority (FA) agreed with the Committee in 2010 and directed the Chief Reserves and Cadets to ensure that the intent of the staffing policy was clarified to his personnel at all levels.

To address the apparent contradiction between the 2010 FA direction and the recent COATS continuation of the practice of hiring under ranked officers over available and qualified at rank officers, the Committee sought an explanation from the Chief Reserves and the Natl CJCR Sp Gp. They acknowledged that the COATS practice of selecting under ranked candidates and promoting them to the rank advertised, even in situations where qualified at rank applicants were available, had continued after the FA directed otherwise in his 2010 decision. It was further explained that the intent had been to seek a policy change that would support this practice. However, it was confirmed by the subject matter expert at the Chief of Military Personnel, that such a policy change has not been approved by higher authority.

In the matter of whether the grievor was entitled to be appointed to the position via the CBA process, the Committee found that while it was open to the CO to appoint the grievor to the vacant position using the CBA process, the CO was not obliged to do so. The Committee found that the CO's decision to proceed with a REO process was made in accordance with the Canadian Armed Forces (CAF) policy found in CF Mil Pers Instr 20/04.

However, the Committee found that the CO's decision to hire an under-ranked officer and promote that officer despite the availability of two qualified substantive Maj rank applicants contravened the CF Mil Pers 20/04. Therefore, the Committee concluded that the REO was not conducted fairly or in accordance with CAF policy. Finally, the Committee expressed concern that the Comd Natl CJCR Sp Gp knowingly and admittedly continued a hiring practice which the FA had deemed to be “… in contravention of CF policy”.

The Committee recommended that the contested Maj's position be re-competed between the grievor and the other qualified Maj who applied.

The Committee also made systemic recommendations concerning staffing practices within COATS.

FA Decision Summary

The Chief of the Defence Staff (CDS), agreed with the Committee's recommendation that the grievance be partially upheld.

The CDS found that the Commanding Officer had no obligation to hire the grievor using a CBA process despite the fact that the Natl CJRC Sp Gp HR Implementation Plan stated that CBAs and internal transfers of existing full time staff “shall be maximized”. He explained that the Directive also afforded the approving authorities the discretion to consider candidates from outside the geographical area when they deemed it in the best interests of the unit, which requires the use of the REO selection process.

The CDS also agreed with the Committee that the REO competition that ultimately staffed the disputed position was conducted and decided in contradiction to the provisions found at paragraph 4.7 of the CF Mil Pers Instr 20/04, in that a substantive Lt(N) was selected into a Maj position, despite the availability of interested and qualified Majors. The CDS concluded that the grievor and one other Major met all of the required qualifications. After confirming that the other Major no longer sought the position, the CDS directed that the grievor be offered the position.

The CDS agreed with the Committee's Systemic Recommendations and acknowledged that there is a requirement for change to the CF Mil Pers Instr 20/04 in order to help address the issue of promotion within the COATS. Nonetheless, he reiterated that, until such time as an approved change to the policy is implemented, the CAF policy regarding the employment of COATS officers remains as written “underranking shall only be used in those exceptional cases where no other qualified candidate is available”.

The CDS also directed the A/VCDS “to conduct a review of all Natl CJCR Sp Gp hiring processes conducted since the 2015/2016 reorganization in order to ensure compliance with the provisions of the CF Mil Pers Instr 20/04. Those found not to be in compliance are to be re-staffed in accordance with CAF policy”.

Finally, the CDS directed “the A/VDCS, in conjunction with CMP, to consider the unique policy requirements identified by Chief Reserves and Comd Natl CJCR Sp Gp, with an aim to implementing the necessary changes into CAF policy as soon as practical”.

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