# 2017-103 Careers, Acting While So Employed, Instruction in the Official Language of one's choice, Official Languages Act

Case summary

F&R Date: 2018-11-16

The grievor, a legal officer, was enrolled in the Legal Officer Qualification (LOQ) course scheduled to be held in September 2016. After candidates expressed a preference for a course offered in French, the course staff decided to cancel the 2016 LOQ course session.

In his first grievance, the grievor contends that the cancellation of the 2016 LOQ course unduly delayed his promotion, as his promotion was directly related to his success in the LOQ course. He further contends that the decision to cancel the course, being based on language grounds, violated the Official Languages Act. In his second grievance, the grievor argued that, since his call to the bar, the Canadian Armed Forces (CAF) had employed him in duties that would normally be performed by someone with a higher rank and that he was therefore eligible for an acting-while-so-employed (AWSE) promotion. He requests that the effective date of his promotion to major be adjusted to the scheduled end date of the 2016 LOQ course and that he be granted an AWSE promotion upon being called to the bar in June 2016.

The CAF contends that there was no obligation to offer the LOQ course on an annual basis and that it was a lack of available resources, including personnel, that dictated the need to postpone the LOQ course. With respect to the AWSE promotion, the CAF argues that, while the grievor was performing the duties of a higher rank position, he was still in training and was not accountable for any decisions or actions taken in the course of his duties. None of the initial authorities assigned to the grievances rendered a decision.

With respect to the AWSE promotion, the Committee found that the grievor, prior to being called to the Judge Advocate General's Office, was in training. During that period he was under the supervision of a senior officer who was held accountable for the duties performed by the grievor. The Committee therefore concluded that the grievor was not eligible for an AWSE promotion.

With respect to the cancellation of the 2016 LOQ course, the Committee found that the decision to cancel the 2016 session of the course was reasonable. The Committee nonetheless found that the official sequence of the legal officer training provides that, not only can the practical modules be completed before the LOQ course, but they are considered prerequisites. Thus, had the course not been cancelled, the grievor would have been eligible for promotion at the end of the 2016 LOQ course. Therefore, the Committee concluded that the grievor's promotion was unduly delayed because of service requirements, and it recommended that the effective date of the grievor's promotion be adjusted to the scheduled end date of the 2016 LOQ course.

FA decision summary

The Final Authority (FA), the Director Canadian Forces Grievance Authority (DCFGA), expressed disagreement with the Committee's recommendation to retroactively adjust the grievor's promotion date to compensate him for the cancellation of his mandatory training. DCFGA stated that the grievor had not reached his occupation's OFP, did not meet all the promotion standards and other conditions set for the Military occupational structure identification. DCFGA indicated that it considers “[translation] achieving the OFP essential for a substantive promotion to the first rank that requires it.”

After a lengthy analysis of the issue of AWSE within the CAF, DCFGA found that the grievor had been employed in a position associated with the rank of major for more than 90 days, and he had assumed all the responsibilities of the position. DCFGA granted an AWSE to the grievor from the start of his transfer to the position of Basic Training List Captain (which had not been requested by the grievor) and for the period following the cancellation of the course that is the subject of the grievance. DCFGA expressed its agreement with the Committee's finding that the reasons given for the cancellation of the course were not consistent with the spirit of the Official Languages Act and Defence Administrative Orders and Directives 5039-6. DCFGA also agreed with the Committee's finding that the course's cancellation had in all likelihood delayed the grievor's promotion by a year as it was the only criteria he was lacking.