Refusing his/her release

[stellarpanther]

The two cases that I've witnessed, it's treated as unbroken service due to the terms of the grievance.

So pension, CD and other "time based benefits" are continuous.

It's good to read that it's treated as unbroken but becasue a person can quickly run into finacial distress and the impact it would have on the mbr and family, I would like to see those cases dealt with quickly.  The current system is clearly broken in my opinion.

 

[garb811]

Slightly shifting this topic, too many of the policies/regulations seem to have too much room for interpretation and they need to be written much more clearily to eliminate this. I knew two Cpl's who were release, for similar conditions, one was offered a 3 year retention the other wasn't.  It seems to be impossible to get a clear answer on the policy even depending on who you ask.  One person says the CAF is tightening up on offering them while someone else says it's almost automatic.  It shouldn't be this way.

There's a reason that the policy is vague in places; it is to allow flexibility in dealing with each individual case.  A period of retention has the input of a fair number of different stakeholders and a number of different criteria are taken into consideration prior to the decision being made.  There is never going to be, nor should there be, a one size fits all solution.

 

[stellarpanther]

There's a reason that the policy is vague in places; it is to allow flexibility in dealing with each individual case.  A period of retention has the input of a fair number of different stakeholders and a number of different criteria are taken into consideration prior to the decision being made.  There is never going to be, nor should there be, a one size fits all solution.

I disagree, policy needs to be clear.  I've seen cases where mbr's apply for compassionate leave and one unit's CoC say's a Grandmother for example doesn't meet the criteria where another unit's CoC says of course it does.  That's one of many examples.  I've heard the policy is written to give a CO maximum flexibility unfortunately it can be used in a way that doesn't benefit the mbr either.

 

[SupersonicMax]

It doesn't always have to be used in ways that benefit the members.  Every situation is different and context has to be taken in consideration when enforcing policy.

 

[stellarpanther]

It doesn't always have to be used in ways that benefit the members.  Every situation is different and context has to be taken in consideration when enforcing policy.

Maybe part of my problem is that I came from a union environment before joining the CAF where rules are clear.  It's probably one of those things I'll never fully adjust to.  One thing I have noticed over the 15 years I've been in is that the newer the mbr, the more they seem to want consistency in the rules.

 

[Piece of Cake]

Policy should never be black or white.  For example, let's say a person who is trying to apply to the CAF declared bankruptcy in the past. Now let's say the CAF has a policy that states anyone who has ever declared bankruptcy can not be issued a security clearance, and thus cannot be accepted into the CAF.  Now let's say, someone was forced to declare bankruptcy due to no fault of their own, e.g. problems with Phoenix, a major health emergency, ect.  Should that person, who would be a stellar recruit, and is known to be a person with the utmost integrity be denied acceptance?  See why issues need to be examined on a case by case basis?

 

[DARTAGNAN]

I read a couple of your answers.

Let clarify the situation:

In July 16, in Borden, I was told that I've done harassment and being given  a RW on July 14th.  I've done harassment but didn't know who was the complaint from before 3 months later (October 12th). Submitted a NOI on August 30th. My CO took 5 weeks and 2 days out the 6 weeks remaining to sign that form. I was already back in Borden. He did send the form to me but through a Major in Borden that have initiated the RW earlier this summer. It is at that time the Major told me for the first time I had a complaint against me, he didn't want to show it to me. Next day, I failed the first exam I could have failed and the retest too. My PRB was presided by this major, he denied my medical condition disclosed at the recruitment center. The PRB decision was supported by things I already have grieved, medical conditions that a non-medical member found non pertinent but year later I have a torn meniscus for the same thing.  They recommended me for an admin review and this is where I am 19 months later, about to get released (March 21st) and strongly disagree with D Mel Pol & DMCA  decisions, and do not trust my CoC to pass up my grievance. I'm also being released with 1 month notice, so no chance to have a smooth transition when you  live 3000km from my hometown. 


The reasons why two admin reviews happened is because the CAF didn't recognize my medical at first (at the recruitment), so the first AR was conducted by my CoC who has screwed me over with that NOI lateness. When they retested a medical condition that doesn't disappeared and being told at the recruitment they move it to DMCA, but it was too late for my career.  The DMCA director say that grievances and AR are independent but he talks about situations I've already grieved and just repeat what other said. 

 

[Eye In The Sky]

Just to clarify;  your impending release is based on the medical issue vice the harassment/training failure issue?

 

[JesseWZ]

DARTAGNAN,

Let me try and wade through all the chaff and put together a timeline from your posts. I know you are working through a language barrier, but I'm hoping a list will be clearer to understand. Please correct me if I am wrong at any point.

- In 2011 you approached the recruiting center (at age 16) and were eventually recruited as a Reg Force Officer. (I'm assuming 2012ish). At the recruiting centre you disclosed ADHD, which you feel has not been acknowledged or accommodated.
- I presume in the intervening years (2012-2016) you were seeking and completing post secondary education
- In July 2016, you received a Recorded Warning for Harassment
- In August 2016, you submitted a Notice of Intent to grieve because you wished to know more information about the harassment complaint leveled against you
- In August 2016+1, you failed an exam for what I assume is a career course
- In August 2016+2 or 3, you failed a retest for the exam from your career course
- Sometime between August and October 2016, you went on PRB and did not continue with your course. At the PRB, you feel the findings were supported by items which were currently being grieved. You also mention a torn meniscus, but I thought your medical disclosure was regarding ADHD. How do the two correlate? This PRB also leads to an Admin Review
- October 2016 - this is where I get confused. You received an RW for harassment earlier, but only found out in October 2016 that your RW was for harassment?
- In Early 2017, you submitted a grievance regarding your PRB
- In January 2017, you were suspended from driving for an apparent medical issue, which you were hoping to receive compensation for.
- At some point in 2017, the Admin Review(s?) proceed, and you are recommended to be released
- March 21 2018 - your impending release.

The AR process is pretty well defined; if you want to provide input, submit your response within the time limit. If you need more time, you can put in a request to have it extended (which they have no obligation to accept).

If you did/do neither of those things, then you are SOL.

Was the divO for someone that was truly an admin burden, had multiple admin actions against them, and had several ARs on the go. Because they submitted a response asking for an extension until the ongoing issues were sorted out, it was considered, and the decision was deferred. They were ultimately released anyway, but the system will go out of it's way to be fair if you fill out the paperwork.

Ultimately you are an adult, you need to take charge of this process and deal with it if you want any input. Not submitting paperwork out of spite is childish, so don't be surprised if you are treated as a child accordingly. There is a ton of support, training and development in the organization, but we need adults that put in the effort and take responsibility for their own actions/failings.

Read the above in yellow again. I get the feeling you are coming here seeking the answers you wish for, which aren't necessarily the true or correct answer. No one on this message board can help you in that regard. From the information you've chosen to share, which I suspect is not the whole story, it paints you as being in an unfavorable situation personally, medically, and administratively. Adding these three together, and keeping the needs of the organization in perspective - should the CF continue to spend money on you?

Your posting history indicates you were recruited around 2011-2012. It's 2018, are you trade qualified yet? If not, that is six years without a trade qualification, ongoing medical issues (whether they were disclosed or believed or not) and other administrative issues.

At the end of the day, you can't refuse a release. When I was in Gagetown, a 2Lt at the Infantry School attempted to refuse their release - they were an administrative and legal burden. After refusing to vacate quarters, turn in their kit and do out clearance, the CO called the MPs. That person was arrested, and added a litany of charges to their administrative burden. They too were released - shortly after that encounter.

Submitting a grievance does not make actions already undertaken null and void until the grievance passes. For example, if you grieve your RW, it remains on your file, even while the grievance proceeds through the system. It is not "suspended". All of your admin processes (including your release) will proceed on their own. Full. Stop. If I were you, I would focus on arguments against your release that don't rely on the fact you have grievances in.

Have you tried arguing for yourself, instead of against all the admin action taken against you? Why are you a good fit for the CF? Why should the CF continue to spend money on you, employ you, etc. Ultimately, that's what it comes down to. Despite some of your posts, you don't have a right to be accommodated in a "job that fits for you." If you can't do the job you've been recruited to do, then unfortunately, you may have to find employment elsewhere.

(Note: charges can advance through the Military Justice system even post release, so I wouldn't recommend committing offences to stall your release).

Nothing in your last post has changed my opinion - in fact it has only strengthened it. You aren't owed a job, and by your own admission in your postings, it seems you expect the CF to bend over backwards because "you are owed accommodation." What happens when you're on deployment? Whomever we fight in the next 20 years - I don't think they are going to honor your ADHD diagnosis and torn meniscus.

 

[SeaKingTacco]

Jesse,
I see a bright future for you as a grievance analyst!

 

[stellarpanther]

What is the CAF's duty to accommodate?  I know for example there are several civilians workers who are accommodated based family reasons, they seem to come and go as they please and have fluctuating schedules.  I'm not just looking at that area but all of it.  I was asked this question once by someone and I didn't really know the answer to it other than to say that we are doing more and more of it.

 

[Blackadder1916]

What is the CAF's duty to accommodate?  I know for example there are several civilians workers who are accommodated based family reasons, they seem to come and go as they please and have fluctuating schedules.  . . .

To accommodate whom?  Since you use "civilian workers" as your example, remember that there are no civilians in the Canadian Armed Forces.  Civilian employees such as you mention are (I assume) employed by the Department of National Defence.  There is a legal difference.

Regardless, all are subject to the same human rights laws.

Duty to Accommodate: A General Process For Managers
Limits on the Duty to Accommodate

Accommodation requires a balance between the rights of an employee or candidate and the right of an employer to operate a productive workplace.

Duty to accommodate, however, is not limitless. As a manager, you are not required to do the following:
•Accommodate where undue hardship to the employer (health, safety and cost) would result.
•Create an unnecessary job.
•Retain an employee who is unable to meet his or her employment responsibilities despite accommodations. For example, you are not required to tolerate substandard performance or unpredictable attendance. Employees, once accommodated, are expected to meet bona fide occupational requirements and standards. It is important to ensure that all employees understand performance expectations. Accommodation aims to enable employees to achieve employment and performance standards.
•Hire a candidate who, after being accommodated during the selection process, does not meet the essential qualifications required for the position.
•Accommodate an employee's persistent absences if the absences are unrelated to a disability or any other prohibited ground. This situation is a management issue and must be resolved through proper mechanisms, such as the performance management or disciplinary process, depending on the circumstances.

How do you determine undue hardship?

Employers are required to provide accommodation up to the point of undue hardship. There is no set formula for deciding what constitutes undue hardship. To help determine undue hardship, consider health, safety, cost, collective agreements, the interchangeability of the workforce and facilities, and the legitimate operational requirements of the workplace. You should make serious, conscientious and genuine best efforts, document your efforts, and include input from the employee and the employee representative, where applicable, as well as from your organization's human resources/labour relations functional specialists

It is not enough to offer assumptions or impressions about what is or is not possible. For example, simply declaring that the cost is too high or that there is an unreasonable risk to health and safety does not constitute undue hardship. To prove undue hardship, you must provide substantial evidence and document it.

What is a bona fide occupational requirement?

The law recognizes that a limitation on individual rights may be reasonable and justifiable in employment situations.

For example, individuals employed as truck drivers must meet vision standards and have an appropriate driver's licence. If an employer can show that there are specific requirements that every individual performing a specific job must meet because they are essential to the effective and safe performance of the job, then no duty to accommodate arises because this does not constitute discrimination.

How do you establish a bona fide occupational requirement?

The Supreme Court of Canada established a three-step process (Meiorin and Grismer cases, both in 1999):
1.The rule or standard adopted must be connected to the functions of the position.
2.The rule or standard is adopted in good faith on the grounds that it is necessary.
3.The rule or standard is reasonably necessary to accomplish the purpose or goal, in the sense that the employer cannot accommodate individuals who possess the characteristics of a particular group without incurring undue hardship.

DAOD 5015-0, Workplace Accommodation

2. Definitions

duty to accommodate (obligation de prendre des mesures d'adaptation)
Duty to accommodate means the obligation of the DND to adopt measures to eliminate disadvantage to employees and prospective employees as a result of a rule, policy, practice or barrier that has or may have an adverse impact on individuals or designated groups protected under the Canadian Human Rights Act or Employment Equity Act.

undue hardship (contrainte excessive)
Undue hardship means the limit to which employers and service providers are expected to accommodate in a given situation, taking into consideration, but not limited to, the following factors:
•availability of options for accommodation;
•realistic ability to meet the costs associated with accommodation; and
•health and safety of the public, DND employees and CAF members.

. . .

3.4 Under the CHRA, the DND and the CAF have a duty to accommodate the employment-related needs of DND employees and prospective employees that arise from a prohibited ground of discrimination up to the point of undue hardship.

. . .

Requirements

3.7 The DND and the CAF shall:
a.establish and maintain an effective system for accommodating the employment-related needs of DND employees, including members of designated groups;
b.provide and maintain a workplace environment that is accessible, non-discriminatory and inclusive;
c.ensure that all employment systems, policies, practices, work arrangements and DND facilities are free of discriminatory barriers;
d.respond in a timely, confidential, sensitive and effective manner to all employment-related requests for accommodation;
e.provide training on diversity to managers and supervisors, including CAF members who act as supervisors or managers of DND employees; and
f.develop, communicate and implement the Workplace Accommodation - Guidelines.

3.8 DND employees shall:
a.identify and communicate their employment-related needs;
b.work cooperatively to find optimal solutions to accommodate their needs; and
c.demonstrate flexibility throughout the process.

But it is the principle of "universality of service" that distinguishes CAF members from DND employees.

DAOD 5023-0, Universality of Service

2.2 To execute this mission the CAF must be given broad authority and latitude in utilizing CAF members and their skills. The statutory basis for this authority is section 33 of the National Defence Act. The fundamental importance of this authority to the functioning and effectiveness of the CAF is recognized in subsection 15(9) of the Canadian Human Rights Act which provides that the duty to accommodate under subsection 15(2) of that Act is subject to the principle of universality of service. Under this principle, CAF members must at all times and under any circumstances perform any functions that they may be required to perform.

. . .

2.4 The principle of universality of service or "soldier first" principle holds that CAF members are liable to perform general military duties and common defence and security duties, not just the duties of their military occupation or occupational specification. This may include, but is not limited to, the requirement to be physically fit, employable and deployable for general operational duties.

The requirements needed to meet universality of service are set out in medical, fitness and performance (and other) standards.  In most cases when these standards have been legally challenged, the CAF has been able to defend them as bona fide occupational requirements (BFOR), or when unable to defend then existing practises the result has been a change to policies that could meet a BFOR.

 

[stellarpanther]

To accommodate whom?  Since you use "civilian workers" as your example, remember that there are no civilians in the Canadian Armed Forces.  Civilian employees such as you mention are (I assume) employed by the Department of National Defence.  There is a legal difference.

Regardless, all are subject to the same human rights laws.

Duty to Accommodate: A General Process For Managers
Limits on the Duty to Accommodate
DAOD 5015-0, Workplace Accommodation
But it is the principle of "universality of service" that distinguishes CAF members from DND employees.

DAOD 5023-0, Universality of Service
The requirements needed to meet universality of service are set out in medical, fitness and performance (and other) standards.  In most cases when these standards have been legally challenged, the CAF has been able to defend them as bona fide occupational requirements (BFOR), or when unable to defend then existing practises the result has been a change to policies that could meet a BFOR.

Sorry I wasn't clear.  I was referring to accommodating CAF mbr's. I know we already do these things for the civilians working for DND.  I heard a CO not that long ago say we now have a duty to accommodate mbr's much more than we used to such as allowing mbr's time off for family appointments or to work different hours as long as it doesn't negatively affect the unit etc.  Apparently though this is something that is with CMP because of the push back from several unit's especially the Svc Bn's and combat units were they have a more traditional attitude.

 

[Pusser]

Sorry I wasn't clear.  I was referring to accommodating CAF mbr's. I know we already do these things for the civilians working for DND.  I heard a CO not that long ago say we now have a duty to accommodate mbr's much more than we used to such as allowing mbr's time off for family appointments or to work different hours as long as it doesn't negatively affect the unit etc. Apparently though this is something that is with CMP because of the push back from several unit's especially the Svc Bn's and combat units were they have a more traditional attitude.

I'm not sure those things really fit under the definition of "accommodation."  However, some folks need to be reminded of one of the principal tenets of leadership:  Know your people and promote their welfare.  The two examples given above are simple things that show people that the organization cares about them and their families (we talk a lot about the importance of families in the military, so we really should show that we mean it).  This creates loyalty and loyalty is essential to success in operations.  No one should ever assume they have a "right" to take time off or work different hours for family situations to the detriment of a unit's operations, but if there is no compelling reason to hold members to a rigid time schedule, where it is the need to force it?  The world does not only turn between 0800 and 1600.  In fact, flexible working hours can actually make your unit more flexible because you can have the workplace occupied for longer (e.g. 0600-1800 if people come and go at different times).

 

[brihard]

I believe the term “duty to accommodate” is being used here in a casual, conversational sense, when that same wording also has a very specific legal meaning that uniquely does not apply to the CAF. I can see where the confusion is coming from.