# 2012-145 Careers, Medical Employment Limitation (MEL), Promotion

Case Summary

F&R Date: 2013–02–22

The grievor was assigned a permanent medical category and restrictive medical employment limitations for a chronic medical problem. Following an Administrative Review of the medical limitations, he was retained temporarily in the Canadian Forces (CF) for a period of three years, and was then to be medically released. The grievor underwent successful medical treatment and his condition improved to the point where he was retained without restrictions and eventually promoted to a higher rank. Following his promotion, he submitted a grievance arguing that he could have been promoted much sooner had he not been incorrectly and prematurely assigned a permanent medical category and restrictive employment limitations. He contended that his steadily improving medical condition had been ignored by CF medical staff and that he had been treated differently from other CF members with the same medical problem. As remedy, he requested that his promotion be backdated to the date he believes he was entitled to be promoted to a higher rank.

Regarding the grievor's claim of unfair differential treatment, the Board indicated that each situation is unique and the Board was not in a position to determine whether the grievor was treated differently from other CF members dealing with the same medical problem.

The Board then reviewed the grievor's medical file and was satisfied that the grievor's condition had been closely monitored by CF medical authorities, that the grievor's employment limitations were always appropriate to his condition, and that it was not possible to change them any sooner than was done.

Next, the Board examined the timeliness of the promotion and found that the grievor could have been promoted sooner had he been medically fit. However, in accordance with the promotion policy found in Canadian Forces Administrative Order (CFAO) 49-4, it was not until after the new limitations were approved by the Director Medical Policy that the grievor's promotion could proceed, which it did. Nonetheless, the Board noted that CFAO 49-4, paragraph 19, allows a promotion to be deferred for a member otherwise eligible for promotion but assigned a temporary medical category. In this case, when the grievor began to improve, the CF medical system changed his medical limitations and medical category to temporary status in recognition of the fact that he might continue to improve. Accordingly, the Board observed that the grievor's situation met the conditions stipulated at paragraph 19, permitting his promotion to be antedated by up to 12 months from the date his restrictions were removed.

Consequently, the Board recommended that the Chief of the Defence Staff (CDS) partially uphold the grievance. The Board also recommended that the CDS direct the antedating of the grievor's promotion by the maximum of 12 months.

CDS Decision Summary

CDS Decision Date: 2013–12–18

The CDS agreed with the Committee's findings and recommendation that the grievance be partially upheld and that the grievor's promotion be antedated to the maximum of 12 months .