# 2019-012 Careers, Military Occupation, Promotion

Case summary

F&R Date: 2019-04-10

These grievors contended that they had been disadvantaged by structural changes to the music branch, which unfairly delayed their promotions to Sergeant (Sgt). The grievors argued that they should be promoted in accordance with the music branch promotion policy that was in effect at the time of their enrolments.

The Committee determined that the implementation plan for major changes to the music branch structure had not been well communicated, resulting in uneven treatment of serving musicians. The Committee found that the “grandfather clause” in the implementation plan was arbitrary rather than the result of a thorough analysis of the impact of the changes on serving musicians. The Committee concluded that there were 14 musicians whose promotions to Sgt would be delayed by up to ten years, from what they had expected, as a result of the new branch structure.

The Committee recommended that the Final Authority (FA) either amend the grandfathering clause in the implementation plan to protect those members who were serving at the time or promote those members who had enrolled under the previous promotion policy to acting Sgt prior to the implementation date of the new structure.

FA decision summary

The FA, which was the Director Canadian Forces Grievance Authority, disagreed with the Committee and rejected the grievance. As for the grievor's argument that the other members in the same situation had been treated differently and that this different treatment had enabled them to be promoted before the new structure was imposed, the FA said that, while other members situations may be similar, they were rarely identical. The FA also added that the new occupational structure was necessary and that, though it may seem unfair that the grievor be affected by this policy change, it was important to remember that all members must follow the new policies. The FA noted that some recruitment documents still contained the old rules, but that this had been corrected by two CANFORGENs. The FA rejected the grievor's argument that the grandfather clause (ie, the clause concerning the application of the former rules) was arbitrary. The FA added that it is a given that, in any policy change, some people may be negatively impacted, and that, in the case at hand, the principles of fairness had been taken into account in establishing the threshold beyond which the new rules would apply. Lastly, the FA concluded that the revised standards for promotion were reasonable and justified and had been applied fairly.

(UPDATE - 28 April 2022)

The FA decision was quashed by the Federal Court and sent back for redetermination.

In the second FA decision, the Chief of the Defense Staff (CDS) agreed with the Committee's findings and recommendations. The CDS determined that the grievor had been aggrieved and directed the Acting Chief of Military Personnel (A/CMP) to promote the grievor to Sergeant effective 30 September 2016. The CDS determined that the grandfather clause was in fact arbitrary and that the new policy was unevenly applied when it came into force, such that some members in similar circumstances were promoted while others were not. The CDS also noted that he had directed the A/CMP to review all musician files to ensure that members in circumstances similar to the grievor's would also receive retroactive promotions.