# 2012-107 Careers, Component Transfer, Discrimination

Case Summary

F&R Date: 2012–12–20

The grievor, a member of the Reserve Force Cadet Instructor Cadre, was denied a component transfer to the Regular Force (Reg F) and a sub-component transfer to the Primary Reserve (PRes) Force as a pilot because he did not meet the medical standards.

The issue before the Board was whether the grievor met the eligibility requirements to component or sub-component transfer.

The grievor believed that he should be considered a skilled applicant since he was a qualified civilian pilot and he was employed as an instructor by a civilian company contracted to conduct basic pilot training for the Canadian Forces (CF). The grievor stated that as a skilled applicant he would be subjected to lessor medical standards and therefore be eligible to transfer. The grievor also suggested that he was being discriminated against because of his age and his aboriginal status.

The Initial Authority (IA) in this case, the Commander (Comd) Canadian Forces Recruiting Group (CFRG), stated that the grievor could not be considered as skilled because he did not meet the requirement for Wing Standard upon enrolment. The IA found that, although the grievor had been instructing some portions of CF flight training, he would still have to complete the Basic Military Officer Qualification Course in addition to Phase II and III of pilot training in order to be qualified to Wing Standard. In consideration of the grievor's medical, the IA determined that he did not meet the Common Enrolment Medical Standards (CEMS) required by both the Reg F and the PRes nor did he meet the minimum medical standards for the pilot occupation.

The Board sought additional information regarding the definition of skilled and semi-skilled pilot applicants and was informed by 2 Canadian Air Division Headquarters that, although no formal reference exists, the established practice is that the applicant is considered skilled if he or she is a qualified pilot from the air force of an allied nation or a former CF pilot. Given that the grievor was neither a qualified pilot from an allied nation nor a former CF pilot, the Board could not find that he should be considered as skilled. However, the Board noted that a Prior Learning Assessment and Recognition, conducted on behalf of the grievor, had determined that he could be granted a bypass for Phase I training. Based on this bypass of Phase I, the Board found that the grievor should be considered as semi-skilled.

The Board then considered the medical requirements for a component or sub-component transfer as found in Canadian Forces Administrative Order 49-6, the Defence Administrative Order and Directive (DAOD) 5002-1, and the Surgeon General Instruction 4000-19. The Board first agreed with the IA that the grievor's medical category did not meet the CEMS. Next, the Board determined that DAOD 5002-1 allows the Comd CFRG to waive the CEMS for a skilled or semi-skilled applicant such as the grievor. However, the grievor would still have had to meet the minimum medical requirements for the pilot occupation which, unfortunately, he did not. Given that there is no option to waive this requirement, the Board found that the grievor did not meet the required medical standard and was not entitled to component transfer to the Reg F.

Finally, the Board reviewed the grievor's allegation of discrimination on the basis of age and aboriginal status. Regarding age, the Board found that there was mention of the fact that the grievor's age would not permit him to complete seven years of service as required by the Restricted Release Policy for the pilot occupation. However, the Board found that this policy would not have impeded his selection had he met the minimum medical standards and was not a factor in considering his suitability. In consideration of the grievor's aboriginal status, the Board reviewed the grievance file and the grievor's Military Personnel Record Resume and found no reference to his aboriginal status except the grievor's own statement. The Board found that the grievor had provided no evidence of discrimination.

The Board recommended that the Chief of the Defence Staff deny.

CDS Decision Summary

CDS Decision Date: 2013–06–21

The FA agreed with the Board's findings and recommendation that the grievance be denied.