# 2012-077 Careers, Discrimination, Medical Employment Limitation (MEL)

Case Summary

F&R Date: 2012–09–27

The grievor applied for the 2011 University Training Plan Non-Commissioned Members (UTPNCM) but was not processed because he did not have the required medical category for the occupations of his choice.

In his grievance,the grievor argued that his medical restrictions have no implications on his possible employment or deployment within his desired three occupations; he also noted he had been deployed while on the same permanent medical category and that his condition did not place him at any increased risk or require any medical intervention whatsoever. The grievor requested that he be allowed to start the UTPNCM program in 2011 in an occupation of his choice and that he be reimbursed for application, transcript and incidental fees associated with entering the UTPNCM competition in 2011.

The Board learned that, as a result of a request from the grievor subsequent to the submission of his grievance, the Chief of Military Personnel (CMP) agreed that consideration should be given to those individuals who do not automatically meet the minimum medical category for the occupation of interest; in July 2012, the grievor was accepted into one of his occupations of choice and commenced university training.

Given the fact that the grievor had now been accepted and commenced his studies, the Board was of the opinion that the central issue of the grievance was satisfied and addressed the remaining issues: the delay in processing the grievor's application, the grievor's medical category and his request for reimbursement of various matters.

The grievor applied for the UTPNCM in 2010 and his medical document for the program was signed off in August 2010 indicating no employability restrictions; however, because he had been awarded an Occupation (O) 3 category in November 2009, he was not considered for his three preferred occupations. The Board noted there was an approximate 15-month delay from the time the grievor received a medical document stating he had no employment limitations to the time it was eventually conceded that there were no other options but to proceed with a formal grievance. Furthermore, the grievor did not start his schooling until September 2012, thereby suffering a delay of a full school year. In the Board's view, this delay was unreasonable, especially when dealing with a member's military career. Unfortunately, at this point in time, other than acknowledging the unreasonable delay, the Board did not see how the final authority could afford any relief to the grievor.

On the issue of medical category, the Board pointed out that its role is not to substitute its own opinion for that of the medical experts'. However, the Board noted that an O3 medical category is assigned to a member who has some specific employment limitations which can be clearly and specifically detailed and which prevent the member from fully meeting the generic or the military occupation task statements. In the case at hand, the Board agreed that the grievor's medical condition was not an issue, but it failed to see how it constituted a medical restriction; the Board found nothing that would support and justify an O3 category and it was the Board's view that the grievor's O3 category should be changed.

Finally, the Board explained that there is no jurisdiction as part of the grievance process to reimburse expenses such as requested by the grievor. The Board added that these types of claims would be considered claims against the Crown and can be pursued through the Director Claims and Civil Litigation.

The Board recommended that the Chief of the Defence Staff (CDS) deny the grievance.

The Board also recommended that the CDS direct the grievor's occupational factor be changed to O2.

CDS Decision Summary

CDS Decision Date: 2014–10–20

The CDS did not agree with the Committee's findings and recommendations. While the Committee

found that the grievor was incorrectly assigned an O3 medical category and recommended that it be changed for O2, the CDS found no reason to do so. The CDS was of the view that pertinent CAF policy was properly applied because the grievor's condition rendered him medically unable most of the time to adapt to at least one of the conditions (stress factors) of the CAF environment. However, the CDS found that the grievor's application for the UTPNCM 2011 was mismanaged because his medical category was not interpreted correctly. Since the grievor was required to comply with the generic task statement in his previous MOC and that DMCA had deemed him employable without restriction, the medical category should not have been considered alone during the selection process, consideration should have been given to the accompanying MEL. Therefore, the CDS found that, on a balance of probabilities, the grievor would have been selected for the competition in the ARMD occupation, and he believed that as a remedy, reducing his EPZ from Lt to Capt from two years to one year was warranted.