eBULLETIN - October 2015

Contents

Highlights

Case Summaries

Statistics

Mailing List

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

Highlights

Timing for Household Goods and Effects Delivery (case no. 2014-071)

The grievor was given an estimate by the shipping company that his Household Goods and Effects (HG&E) would take approximately six to eight weeks to arrive in Rome on posting. Yet, his HG&E arrived at destination two weeks earlier than expected. The grievor received reimbursement for the extra expenses incurred, but he was later informed that he had no entitlement to the expenses and that the overpayment would be recovered.

Breach of Medical Employment Limitation (case no. 2014-115)

The grievor was deployed on an exercise within Canada despite a Medical Employment Limitation (MEL): avoid uneven ground. Shortly after his arrival on the exercise the grievor's condition worsened, he was assigned more restrictive MELs, and so he returned to his parent unit. The grievor felt that his MELs were not respected and that he should have had access to disability accessible facilities.

Discrimination on the CF EXPRES Test (case no. 2014-127)

The grievor failed on several occasions to meet the minimum standard of the CF EXPRES test. Corrective measures were imposed on the grievor. She filed a grievance in which she alleged discrimination in requiring female personnel to perform push-ups supported on their toes during the CF EXPRES test.

Case Summaries

Timing for Household Goods and Effects Delivery

Committee Findings and Recommendations

The grievor was given an estimate by the shipping company that his Household Goods and Effects (HG&E) would take approximately six to eight weeks to arrive in Rome on posting, so he secured accommodation for 15 August 2010. His HG&E were packed on 29 June 2010, and arrived in Rome on 28 July 2010, two weeks earlier than expected. Although he tried to secure the accommodation for an earlier date, he was only able to advance his occupancy date by four days.

The grievor requested, and received, reimbursement from the Core envelope for an additional 14 days Interim Lodgings, Meals and Miscellaneous (ILM&M), and for the mileage and other costs he incurred to register his Private Motor Vehicle (PMV) once it arrived from Canada. However, he was later informed that the Director Compensation and Benefits Administration (DCBA) had determined that he had no entitlement to the expenses and that the overpayment would be recovered. He submitted a grievance contesting the DCBA decision. He argued he was told by the Brookfield Global Relocation Services agent, by Base Traffic personnel, and by the shipping company, that his HG&E would arrive between six and eight weeks from the load date of 29 June 2010 and that he relied on that estimate when he chose the occupancy date.

The Initial Authority (IA), the Director General Compensation and Benefits, denied the grievance. The IA found that the HG&E could not be delivered due to the unavailability of the grievor's accommodation, and that the Canadian Armed Forces (CAF) were not at fault since the grievor had selected the occupancy date. Regarding PMV-related costs, the IA indicated that they were not reimbursable.

The Committee noted that the grievor relied to his detriment on the six to eight week estimate he was given by the shipping company to determine the availability of his accommodation and found that the grievor made a personal choice when he decided on the occupancy date which resulted in the delayed delivery of HG&E. Because the delayed delivery was not the fault of the CAF, the Committee found that the grievor was not entitled to additional ILM&M from Core funds.

The Committee also observed that, although the policy is clear that CAF members are only entitled to 30 days of ILM&M, the message provided to them is not consistent or well explained. The Committee noted that the CAF is responsible to ensure that its members are very clearly informed that they and their accommodation must be available to accept delivery of their HG&E within 30 days or less, and that only in cases where the delay is due to the CAF can ILM&M be extended.

Finally, the Committee recognized that the challenges associated with the PMV registration process in Italy were beyond the grievor's control and found that he had incurred legitimate expenses in registering his PMV. The Canadian Forces Integrated Relocation Program, article 9.4.03, states that "costs associated with registration of PMV at destination for a maximum of 12 months" can be reimbursed from the Core envelope. The Committee found that the costs associated with travelling to and from the registration office in order to register the PMV were reimbursable. The Committee recommended that the grievance be partially upheld and that the grievor be reimbursed for all expenses he incurred in travelling to Naples for the purpose of registering his PMV.

Final Authority Decision

The Chief of the Defence Staff agreed with the Committee's findings and the recommendation that the grievance be partially upheld.

Breach of Medical Employment Limitation

Committee Findings and Recommendations

The grievor was deployed on an exercise within Canada despite having been awarded the following Medical Employment Limitation (MEL): avoid uneven ground. Shortly after his arrival on the exercise, the grievor's condition worsened and he was assigned more restrictive MELs, which eventually led to his return to his parent unit. The grievor felt that his MELs were not respected and that he should have had access to disability accessible facilities since he required the assistance of a cane for mobility.

The Initial Authority (IA) did not adjudicate the grievance because the grievor did not authorize an extension to the prescribed time limit. However, the IA provided an analysis of the file indicating that the grievor was employed at a static Command Post and within his MELs. He indicated that the grievor was not exposed to what he would consider uneven ground. The IA also indicated that it was the role of the medical personnel to advise on the necessity for disability accessible facilities, however no advice was provided, therefore no facilities were considered.

The Committee found that the grievor's MEL did not preclude him from being deployed, provided he was employed within the scope of his limitations. In examining the area in which the grievor was employed, the Committee found that it consisted of uneven ground and the grievor should not have been employed in that area. With respect to the grievor's request for access to disability accessible facilities, the Committee reviewed Defence Administrative Order and Directive 5023-1 and found that the Universality of Service entails that Canadian Armed Forces members who are fit for deployment must be able to use field facilities.

The Committee recommended that it be acknowledged that the grievor was employed in breach of his MEL during the exercise.

Final Authority Decision

The Final Authority (FA) did not agree with the Committee's recommendation that it should be acknowledged that the grievor, injured to his hip, was employed in breach of his MEL during an exercise. For the Committee, the evidence on file revealed that the nature of the camp, an open field, constituted of gravel roads, trees, bushes, shrubs, green areas, dirt areas and good sized loose rocks, met the definition of "uneven ground". The FA found that the Committee adopted a narrow interpretation of "uneven ground": it was his view that the grievor's MEL was meant to preclude cross terrain foot such as forests, hills and ravines, not moving on foot in a bivouac on prepared surfaces.

Discrimination on the CF EXPRES Test

Committee Findings and Recommendations

The grievor failed on several occasions to meet the minimum standard of the CF EXPRES test, which is designed to measure the overall fitness level of military members. To meet this standard, all members of the Canadian Armed Forces (CAF) must pass the four components of the test. Failure to meet the standard triggers an administrative process under the Defence Administrative Orders and Directives (DAOD) 5023-2, Physical Fitness Program. Following her failures, corrective measures were imposed on the grievor. She filed a grievance in which she stated that the CAF was practicing discrimination in requiring female personnel to perform push-ups supported on their toes during the CF EXPRES test. As the grievor had denied a request for a deadline extension, the Initial Authority did not render a decision.

The Committee had to determine whether the CAF's requirement that the grievor perform push-ups during the CF EXPRES test constituted discrimination against her. The Committee also had to determine whether the corrective measures imposed on the grievor were warranted.

The Committee was of the opinion that the grievor had failed to demonstrate that the CAF had practiced discrimination in obliging her to perform push-ups supported on her toes as part of the CF EXPRES test. The Committee noted that the required standard for push-ups had been adapted over the years, mainly to recognize physiological differences relating to sex and age, and that the repeated failure of a CAF member to meet the minimum physical fitness standard did not necessarily result in his or her release.

The Committee concluded that under DAOD 5023-2, which was in effect at the time of her initial failures, the recorded warning that the grievor had received should be maintained.

The Committee did note, however, that effective 28 March 2008, any CAF member who failed the CF EXPRES test and had been issued a recorded warning could request a reassessment based on the common military tasks. Therefore, the Committee found that as of that date the grievor should have been offered a re-evaluation based on the common military tasks, an evaluation that has no push-up component.

The Committee also noted that on 1 April 2014, the CF EXPRES test was replaced by the FORCE evaluation, whose components are considered more accurate in predicting performance relating to the common military tasks and are more precise than the traditional exercises found in the CF EXPRES test. The Committee noted that after further failures, which were interspersed with successes in meeting the CF EXPRES test fitness standard, the grievor was finally given the option of an evaluation using the FORCE test, which she passed.

The Committee therefore concluded that the measures taken following the grievor's repeated failures on the CF EXPRES test had not always complied with the version of the DAOD 5023-2 in effect at that particular time. The Committee also opined that if, starting in December 2008, the grievor had been given the option of being assessed based on the common military tasks, she would most likely have passed the test and avoided any subsequent failures. The evidence on file shows that it was not so much the grievor's fitness that led to her failures but rather a specific problem with push-ups. The Committee therefore found that the grievor should be given some benefit of the doubt and that the corrective measures taken against her after 28 March 2008 should be cancelled.

The Committee recommended that the Chief of the Defence Staff order the withdrawal of the corrective measures in question and that all related correspondence on the grievor's personnel file be removed and disposed of in accordance with the Library and Archives of Canada Act. It also recommended that the impact of these changes be reflected in the grievor's Personnel Evaluation Reports (PER), in terms of both performance and potential. Finally, the Committee recommended that the grievor's file undergo an administrative review in order to determine the competitiveness of her file regarding promotion and to decide whether further changes are necessary.

Final Authority Decision

The Final Authority (FA) agreed with the Committee's Findings and Recommendations. The FA ordered that the grievor's PER be amended to reflect the proposed changes and that an administrative review be carried out to determine the competitiveness of the grievor's file, concurring with the Committee's recommendations in that regard.

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