# 2017-114 - Maternal/Parental Leave (Mat/Par lve)

Case Summary

F&R Date: 2018–02–09

The grievor was promoted to the rank of Acting Lacking Corporal (Cpl) while on maternity and parental leave. The chain of command later determined that she was not eligible for promotion while on leave without pay and delayed her promotion to the date of her return from maternity and parental leave.

The Committee had to determine if the decision to delay the grievor's promotion was in accordance with applicable policies and regulations and whether it was discriminatory pursuant to the Canadian Human Rights Act.

The Canadian Forces Administrative Order 49-4 and the Defense Administrative Orders and Directives 5023-2 require, among other things, that Canadian Armed Forces (CAF) members hold valid physical fitness evaluation results, be available for unrestricted employment in their occupation and have three years of qualifying service in order to be promoted.

Regarding the physical fitness evaluation results, the Committee noted that the strict application of policy caused the grievor to become ineligible for promotion when her physical fitness evaluation results expired two months into her maternity and parental leave. Generally, members are not, and should not, be expected to undergo fitness evaluations while on maternity and parental leave. As such, it is likely that CAF members will be without valid fitness results at some point during their leave and will be adversely impacted if valid results are required in relation to a promotion opportunity. The Committee found that this practice constituted discrimination based on sex or family status. As the grievor held valid physical fitness evaluation results when proceeding on maternity and parental leave, the Committee found that the grievor should be considered to have satisfied this promotion criterion for the duration of her leave.

On the matter of availability for unrestricted employment in the occupation, the Chief of the Defence Staff determined in a previous grievance that delaying a promotion based on a determination that a CAF member on maternity or parental leave is unavailable for employment is discriminatory. To that effect, the Committee found that the grievor should have been considered available for the duration of her maternity and parental leave.

With respect to qualifying service, the Committee referred to the Federal Court decision in Patterson v Canada Revenue Agency which confirmed that, while experience may be a legitimate requirement, the employer must consider accommodation to the point of undue hardship when it pertains to assessing an individual's suitability. Accordingly, a CAF member should not be disqualified from promotion unless the CAF can prove that promoting the member, given their actual level of ability and knowledge, would impose undue hardship. In the grievor's case, the commanding officer (CO) assessed her aptitude for employment to the next rank and, based on his recommendation for an accelerated promotion, determined that she was ready for employment as a Cpl. As the grievor should not be adversely affected by her time on maternity and parental leave in relation to her qualifying service, the Committee found that she met the qualifying service criteria as of the date of her CO's recommendation.

The Committee recommended that her promotion date be backdated to the date when she satisfied the qualifying service criteria and that her salary be adjusted accordingly.

FA Decision Summary

FA Decision Pending