# 2012-124 Careers, Acting While So Employed (AWSE), Promotion

Case Summary

F&R Date: 2013–01–16

The grievor claimed that he was denied a promotion to the rank of Major for reasons other than his performance and potential and contended that he had consistently been assigned the tasks and responsibilities associated with vacant Major positions without receiving the associated rank or pay. The grievor sought an immediate promotion to Major backdated to 2005.

The Board examined the scoring system as indicated in the Canadian Forces Selection Board Guidance Manuals, and determined that the grievor had not provided any evidence that would cast doubt on the appropriateness of the evaluations of the Selection Boards with regard to potential and performance. The Board therefore limited its review to the two objective criteria; Fitness and Second Language ability. The Board was satisfied that the grievor was correctly awarded the maximum number of points available by policy at both Selection Boards under review.

The Board also found that had the grievor maintained a current Second Language profile, he would have been promoted from the 2010 Selection Board, assuming all other promotion criteria were met. The Board then considered the grievor's allegation that he had been employed in a Major's position without compensation. Confirmation was obtained from the grievor's unit that, although posted into a Captain's position, the grievor had been employed by his unit in a Major's position for approximately one year. As a result, the Board examined the requirements of the applicable policy, CANFORGEN 060/00 –for acting while so employed, and found that the grievor did not meet the minimum operational standards. However, the Board also found that in accordance with paragraph 11.02(2) of the Queen's Regulations and Orders, the Chief of the Defence Staff (CDS) has the discretionary authority to waive these requirements under the appropriate circumstances. The Board was satisfied that the three driving factors behind the use of the CDS discretion were present in the grievor's case; that the grievor was employed in a position of a higher rank, that the expectation was that the grievor would complete the full duties and responsibilities associated with the position, and that the grievor fulfilled his duties and responsibilities until a Major was posted into the position.

As a result, the Board recommended that the CDS pratially grant the grievance.

CDS Decision Summary

CDS Decision Date: 2013–10–29

The FA partially agreed with the Board's findings and recommendation that the grievance be partially upheld, but with minor changes in the 2009–2011 dates. The Board limited its review for the period that was previously considered in the interests of justice by the FA. However, based on paragraph 29(5) of the NDA, the FA finally considered the 2005–2006 period in its final decision, stating that the same justifications for the grievor's AWSE promotion to Major between January 2009 and July 2011 apply to that period.