eBULLETIN - July 2015

Contents

See our Case Summaries List or Systemic Recommendations for further information about recent and past MGERC cases.

Highlights

Performance Feedback (case no. 2014-045)

The grievor, who was on the Basic Training List and ineligible to receive an annual Personnel Evaluation Report, asked his supervisor for a letter of performance. His superior stated that if he wrote such a letter it would contain negative comments regarding the grievor's conduct, which might detract from his accomplishments. The grievor subsequently filed a grievance and a harassment complaint.

The grievor argued that he was denied sick leave and appropriate care by the Canadian Armed Forces while on retirement leave due to the fact that he was in the process of being released. As redress, the grievor requested that his retirement leave be reverted to sick leave, thus delaying the commencement of his retirement. He also requested credit for any resulting accumulation of annual leave.

Disclosure of Pregnancy (case no. 2014-164)

The grievor was appointed to an Acting While So Employed (AWSE) position for a period of one year. The appointment was later extended for an additional year. Shortly after receiving the extension message, the grievor disclosed her pregnancy. Subsequently, the Director Military Careers posted the grievor out of her AWSE position with a coinciding rank reversion instruction. The grievor contended that her posting out of the AWSE position was directly related to her having disclosed her pregnancy and that the decision was discriminatory and violated the Canadian Human Rights Act.

Case Summaries

Performance Feedback

Committee Findings and Recommendations

The grievor, who was on the Basic Training List at the time and ineligible to receive an annual Personnel Evaluation Report, asked his supervisor for a letter of performance. The grievor objected to his superior's statement that if he wrote such a letter it would of necessity contain negative comments regarding the grievor's conduct, which might detract from his accomplishments. The grievor subsequently filed a grievance and a harassment complaint. Dissatisfied with the treatment of his complaint, he submitted a second grievance, which was incorporated into the case.

The initial authority (IA) concluded that the superior acted within his responsibilities by warning the grievor about the contents of the requested letter. The IA also noted that the grievor's superior had no obligation to provide him with such a letter, since the grievor was on the Basic Training List. Since it was not part of his mandate, the IA did not review the grievor's allegations regarding the management of the harassment complaint.

The Committee had to determine whether the grievor should have received a formal evaluation of his performance and whether the decision made by the Responsible Officer to the effect that the grievor's harassment allegations did not constitute harassment was reasonable.

On the issue of feedback, the Committee noted that the policies did not stipulate that a Canadian Armed Forces (CAF) member on the Basic Training List should receive an annual Personnel Evaluation Report. However, the Committee did determine that the grievor's request for formal feedback was reasonable since although he had been transferred to the Basic Training List the CAF fully employed him as a supervisor and he had to work within a framework of expectations and objectives.

On the issue of harassment, the Committee determined that the conclusion of the Responsible Officer, to the effect that the grievor's allegations failed to meet the definition of harassment, were reasonable and justified. Accordingly, the Committee supported the decision of the Responsible Officer to close the case.

The Committee recommended that the Chief of the Defence Staff (CDS) partially uphold the grievance and order the chain of command to produce an evaluation of the grievor's performance in a format to be determined by the concerned authorities.

Final Authority Decision

The CDS agreed with the Committee's findings and recommendation that the grievance be partially upheld.


Sick Leave while on Retirement Leave

Committee Findings and Recommendations

The grievor argued that he was denied sick leave and appropriate care by the Canadian Armed Forces while on retirement leave due to the fact that he was in the process of being released. As redress, the grievor requested that his retirement leave be reverted to sick leave, thus delaying the commencement of his retirement. He also requested credit for any resulting accumulation of annual leave.

There was no initial authority (IA) decision rendered in this matter as the grievor did not grant an extension. However, the Director Medical Policy (D Med Pol) provided a subject matter expert opinion to the IA, concluding that the grievor should have been granted sick leave as requested.

The Committee found that the D Med Pol was the appropriate approval authority for sick leave while on retirement leave.

The Committee recommended that the Chief of Defence Staff (CDS) direct the Director Military Careers Administration to amend the grievor's release date in accordance with the sick leave recommended by the D Med Pol through the grievance process, in addition to any resulting entitlement to annual leave. This had been done by the CDS in the grievance file 2010-041.

Final Authority Decision

The CDS agreed with the Committee's findings, but partially agreed with the Committee's recommendation on the remedy. Because the grievor was not released for a reason mentioned in Subsection 30(4) of the National Defence Act, the CDS was of the view that the only available administrative remedy was granting retroactive sick leave to replace any taken retirement leave (including annual and accumulated) until the release.


Disclosure of Pregnancy

Committee Findings and Recommendations

The grievor was appointed to an Acting While So Employed (AWSE) position for a period of one year. Eight months later, an appointment message approved the continuation of the grievor's AWSE appointment for an additional year. The following month, the grievor disclosed her pregnancy. Subsequently, the Director Military Careers posted the grievor out of her AWSE position with a coinciding rank reversion instruction stating that her period of parental leave did not satisfy the intent of the AWSE policy as she would not be available to fulfill the requirements of the position. The grievor contended that her posting out of the AWSE position was directly related to her having disclosed her pregnancy and that the decision was discriminatory and violated the Canadian Human Rights Act (CHRA).

The initial authority (IA) denied the grievance finding that it was reasonable to post the grievor from the AWSE position given that she was unavailable for employment. The IA also denied that the grievor's posting was due to her being pregnant.

The Committee had to determine whether the decision to post the grievor out of the AWSE position, and the coincident rank reversion, were done in accordance with applicable policies and regulations. Further, the Committee had to determine if the decisions at issue were discriminatory, pursuant to the CHRA.

The Committee considered the existing jurisprudence, the CHRA and the Canadian Human Rights Commission's guide for employers regarding pregnancy and human rights in the workplace. The evidence on file clearly showed that the decision to cancel the grievor's appointment to an AWSE position was directly related to the grievor going on maternity and pregnancy-related leave. The Committee considered this to be pregnancy-related discrimination and contrary to the CHRA, as it was adverse differential treatment based on the prohibited grounds of sex and family status.

The Committee recommended that the decision to remove the grievor from the AWSE position be annulled, and her pay, pension and other associated benefits be adjusted accordingly. The Committee also recommended that the Canadian Armed Forces conduct a review of the relevant policies to ensure that they conformed to the CHRA and are not discriminatory.

Final Authority Decision

The Chief of Defence Staff agreed with the Committee's findings and recommendations.

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