HRC Challenge: Medical discharges thinning ranks & forcing unemployment

[284_226]

I'll forward this message as I received it.  I've been in contact with the writer since she wrote an opinion article in the Halifax Chronicle Herald newspaper, and I'd call on anyone that feels that they could contribute useful information to Brenda to do so as soon as possible.  She intends to send her rebuttal to the Human Rights Tribunal on Monday (October 16).  Her e-mail address is listed at the bottom of her message.

I believe Brenda has raised some serious questions, and the issue is one that could affect any CF member who is injured or disabled and faces a medical release - including those that are wounded while deployed.

Please pass on any information/thoughts/opinions directly to Brenda.

(Mods/Admins - any chance this could get a link from the front page for the next few days?)



Dear Soldiers, Veterans, and all interested Canadians,

I am currently advocating for and assisting a Veteran in a Human Rights Commission case. The veteran (a soldier released after 17 years of exemplary service following a knee injury) is asking the Department of National Defence (DND) to step up and offer him job security.

The arguments for the case:
1) That DND must employ CF soldiers that can no longer meet the physical standards required in the CF. 
2) That DND must step up to guarantee job security and employment opportunities for injured CF soldiers for at least the duration of the employment contract that the soldier signed with that organization.

You might be asking why is there a requirement for DND to guarantee job security and employment opportunities to those members of the CF who are injured and no longer able to remain in the CF.  The Canadian Human Rights Act (CHRA) guarantees that Canadians are not discriminated against on the basis of disability.  An employer has an obligation under the CHRA to accommodate a disabled employee to the limits of undue financial hardship or safety concerns to the employee or co-workers.  This means that an employer cannot dismiss an employee if the employee’s needs can be reasonably accommodated.  The CHRA permits the CF to release members who no longer meet the minimum medical requirements for service in the CF due to disability, using the bona fide operational requirement provisions of the CHRA.  However, one question remains – Who is the employer of a CF member?

The investigation phase of this case has been completed and, in a letter recently received by the veteran, the respondent (DND) states, "there is no room for argument; a Canadian Forces member is not an employee of DND.  Therefore, DND cannot be construed as the organization to discharge the obligations of an employer with respect to (soldier’s name)”.

This letter was sent despite the fact that the veteran provided, as proof of an employment link to DND, his employment contracts (on DND letterhead and forms) and the Record of Employment that he received upon release listing the Department of National Defence as his employer for the last seventeen years.

The Commission has given us until the 20th of October to respond to DND's letter and offer arguments in this case.

Unable to afford legal counsel, we are in this fight alone.  We are asking soldiers, veterans, and the public for help.

Please look in your records, find your contracts and Records of Employment and any other documentation you can find that might help to make DND acknowledge it has a responsibility towards soldiers.

Also important are your thoughts on the above quotation taken from the letter sent to this veteran.
Part of our fight will be to address the misleading information and legalese that DND is currently hiding behind. 

Do CF soldiers work for DND?

If you are currently a soldier or veteran, does it bother you to know that DND denies any employment relationship with you? 

Were you, upon recruitment, ever informed of the CF's employment status?  Did you know that you are considered employees of the crown but have no employment link to DND?  The Minister of National Defence is your ultimate boss, but DND is separate and distinct from the CF?

DND is hiding behind archaic legislation and confusing bureaucratese. 

We want, at the very least, to show them that their legal victory is in no way a moral or ethical one.

In our rebuttal, we would like to offer as many letters in support of our fight as we can. 
We ask your help to do this.

Throughout this letter, I have said "we" many times.  I speak in this way because the veteran in question is my husband - and we are definitely in this together. 

Some of you may have heard of me before - I am a former military nurse fighting hard to influence change in current DND/CF employment equity policy - with a focus on ensuring our injured soldiers are never out searching for jobs.

I will accept any and all help and information that you can provide at soldieradvocacy@eastlink.ca.

Please remember our deadline:  Friday, October 20, 2006.

Thank you,

Brenda MacDonald

 

[Daidalous]

Wow this is a really touchy one, but heck I will answer it. 

I agree and disagree with this.

1.  You have to be fit, if you are not, you are not deployable thus you can not do your job. Which is spoken about in the CHRA about being able to do your job without  causing undo financial hardships or
a safety issue.    We are crown employees, we should have the same protection under government passed laws and rules.  Unless the CF has a exemption, along the lines of point 1.

2.  If DND does not own me who does.  I know my wife will say she does, but approves for my money in my bank then???

I think I will stop there.  The flamers are waiting to go.

I really feel for this family, I have seen this happen to many good people.

 

[orange.paint]

Im in the same boat.i totally disagree with a member after 17 years getting the boot no pension nothing.But where do you draw the line?Pte fall's out of PT first day BMQ?Now you have to find him a job?

agree and disagree.

 

[284_226]

Wow this is a really touchy one, but heck I will answer it. 

I agree and disagree with this.
(snip)
I think I will stop there.  The flamers are waiting to go.

I really feel for this family, I have seen this happen to many good people.

You've pretty much nailed the issues right on the head.  And, as much as everyone likes a good flamefest, the post was more about generating responses to Brenda that can help her with her arguments.  All I'd ask is that if you care enough to post an opinion or information here, that everyone takes the time to send her the information as well...

 

[Cloud Cover]

Have you contacted the legal counsel at ARCH?

By the way, is the relief you are seeking within the order making authority of the CHRC?

 

[284_226]

But where do you draw the line?Pte fall's out of PT first day BMQ?Now you have to find him a job?

I've thought about the same thing.  I'd like to think that if the Pte on first day BMQ does bust him/herself up, that the person's qualifications would be considered in DND being able to find them appropriate employment.  I don't have the answer to that particular question - would DND be obligated to train the individual to fill a position in DND?  Could there be a limit imposed on DND's liability to finding employment for the individual, if the individual is basically unemployable even in any civilian DND job?

It's not likely anyone here has the answers.  But, winning this challenge would mean that DND would be compelled by the Tribunal to spend time and effort considering the issue.  If the challenge loses, then DND still has no obligation whatsoever to even look at the issue.

 

[284_226]

Have you contacted the legal counsel at ARCH?

Sorry, I'm not familiar with that acronym.  And please remember I'm not the one making the challenge, so I don't know if Brenda has approached any given organization for assistance or not.  It'd be a good question to ask her.

By the way, is the relief you are seeking within the order making authority of the CHRC?

As I understand it, yes.  If it had been outside the authority of the CHRC, the proceedings would not have reached the point they're at now.

 

[George Wallace]

I have a question, that seems not to have been asked.  Have the 'parties' involved tried looking into employment with DND or what options may be open to former CF members in applying for Public Civil Service jobs, which would include DND?  As I understand it CF members are given preference in some cases, more so if they have been released with Medical Categories.  It would be terribly embarrassing, if what they were 'fighting for' was already in place and operating.

 

[Cloud Cover]

ARCH: http://www.archdisabilitylaw.ca/index.asp


The proceedings will move on in order to make a determination that there has been discrimination [or not], but the relief you are seeking may not be the remedy they order.  

It is an interesting argument - if you are succesful in your claim it could also (in theory) work both ways. A civilian person employed by DND could also claim they were employed by the Canadian Forces, which makes no sense at all. I don't think the CHRC will open up that can of worms!!  They have other powers to fashion a remedy, including some financial compensation.    

 

[284_226]

I have a question, that seems not to have been asked.  Have the 'parties' involved tried looking into employment with DND or what options may be open to former CF members in applying for Public Civil Service jobs, which would include DND?  As I understand it CF members are given preference in some cases, more so if they have been released with Medical Categories.  It would be terribly embarrassing, if what they were 'fighting for' was already in place and operating.

CF members who are medically released are the only members who enjoy (?) "priority hire" with the Public Service - see http://www.psc-cfp.gc.ca/priority-priorite/guide/partII_ch7_e.htm.  This is far from the near-guarantee of accommodation that every other Canadian citizen enjoys.  Legal standards in the civilian sector are that employers must find employment ("accommodate") disabled employees, unless the employer would incur grossly unreasonable expense doing so, or the employee would pose a hazard to themselves or co-workers.  And, as anyone that has worked closely with the Public Service knows, "priority hire" is just a catch phrase - there's no teeth to the legislation.  They'll hire who they want to hire.

 

[McG]

If DND does not own me who does???

You belong to the Canadian Forces.  DND employs civilians.

 

[284_226]

ARCH: http://www.archdisabilitylaw.ca/index.asp

Thanks for the link - I'll forward it to Brenda.  I'm not sure if she's been in contact with them or not, or if there's time left to do so.

The proceedings will move on in order to make a determination that there has been discrimination [or not], but the relief you are seeking may not be the remedy they order.

Entirely possible.  Losing the challenge means no order whatsoever, though...and something is usually better than nothing.

It is an interesting argument - if you are succesful in your claim it could also (in theory) work both ways. A civilian person employed by DND could also claim they were employed by the Canadian Forces, which makes no sense at all. I don't think the CHRC will open up that can of worms!!  They have other powers to fashion a remedy, including some financial compensation.   

I don't believe the claim could work both ways.  The NDA section 15(1) states: "There shall be a component of the Canadian Forces, called the regular force, that consists of officers and non-commissioned members who are enrolled for continuing, full-time military service".  A civilian DND employee would have an extremely hard time convincing anyone that they were "enrolled", or they're engaged in "full-time military service".

 

[284_226]

You belong to the Canadian Forces.  DND employs civilians.

Could you find me a reference in the NDA that states DND only employs civilians?

You can find the NDA at http://laws.justice.gc.ca/en/N-5/text.html

 

[Cloud Cover]

I don't believe the claim could work both ways.  The NDA section 15(1) states: "There shall be a component of the Canadian Forces, called the regular force, that consists of officers and non-commissioned members who are enrolled for continuing, full-time military service".  A civilian DND employee would have an extremely hard time convincing anyone that they were "enrolled", or they're engaged in "full-time military service".

Right, but that is only supplementary which would go towards proving there is a regular force and a special force. it doesn't go anywhere near towards proving the existence of an employment relationship between DND and the CF member. Arguably, it could weaken it.

As I am sure you are aware, there are some common law legal tests [with variations] which go towards establishing an employment relationship with a particular employer, however they usually deal with employee vs. independent contractor status. Clearly in this case DND does not want to find itself on the hook for the costs accomodating members of the CF who have only an indirect nexus with the civilian branch of the department. Depending on the tribunal, the common law tests could produce different results but my suspicion is those cases will produce a satisfactory result for this person.

Maybe try and also argue that after the point in time they were injured, and were permanently not capable of performing military service duties while still continuing to recieve pay, they ceased being members of the regular force CF and by default under the Act became employees of DND for the period of time they continued to recieve pay. Even that short instant of time would have been enough to activate a duty to accomodate.  Worth a shot, and see if they can talk their way out of that. IMO.   

 

[McG]

The NDA defines two seperate organizations.  The Department of National Defense and the Canadian Forces (and you will note that there are places in the text where it refers to "the department and the Canadian Forces).  Employment of service personel is described under Part II: The Canadian Forces
http://laws.justice.gc.ca/en/n-5/

Public servants (including civilains in DND) are hired through this:  http://laws.justice.gc.ca/en/P-33.01/255947.html#rid-255990

 

[284_226]

The NDA defines two seperate organizations.  The Department of National Defense and the Canadian Forces (and you will note that there are places in the text where it refers to "the department and the Canadian Forces).  Employment of service personel is described under Part II: The Canadian Forces

Agreed, there are indeed separate parts describing both the "Department" and the "Canadian Forces".  However, in Part I - The Department of National Defence, it states: "The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for..."

Does management include employment?  :-\

Public servants (including civilains in DND) are hired through this:  http://laws.justice.gc.ca/en/P-33.01/255947.html#rid-255990

Yup, no disagreement there - but it is rather moot because nobody is claiming that a CF member is a member of the Public Service.  One can be an employee of the Federal Government and not be a member of the public service.  Case in point - DRDC, CSE, Defence Construction Canada, Canada Revenue Agency...

 

[armyvern]

An interesting take on this by you.

This is far from the near-guarantee of accommodation that every other Canadian citizen enjoys.  Legal standards in the civilian sector are that employers must find employment ("accommodate") disabled employees, unless the employer would incur grossly unreasonable expense doing so, or the employee would pose a hazard to themselves or co-workers. 

The same is applicable to the public service.

And, as anyone that has worked closely with the Public Service knows, "priority hire" is just a catch phrase - there's no teeth to the legislation.  They'll hire who they want to hire.

I am employed by the Canadian Forces NOT DND and I have known this for years...it's not a secret that there is a great distinction between the two entities and in the contracts we sign with our respective employers. After all We soldiers, sailors and airmen who signed contracts with the Canadian Forces are indeed employed by a different entity with our own unique requirements/roles and responsibilities. Ours involves paying the ultimate price if required....24/7 with no overtime....duties...PT and the whole ball game, frequent deployment and extended periods away from family, annual fitness tests etc ad naseum. I'm sure you see the difference now between civilian employees of the DND and their roles/responsibilities and contracts with their employer.

I am currently posted to "Little Ottawa" a small city where the vast majority of employed persons are working for the Federal Government as public service employees in Revenue Canada, Canada Post, Veterans Affairs, Agriculture Canada amongst the largest...let me tell you that the very large volume of ex-CF personnel now employed here within these public service departments (as priority hires no less) due to medical release from the CF would be surprised by your comments that this legislation has no teeth.

 

[284_226]

Some very interesting points you've got, Whiskey601.  Very interesting....

I wonder if DND is using a uniform-wearing CF legal officer to submit their arguments to the Tribunal?  It would look awfully bad on DND to try and claim that CF members are not employed by DND, while the Department is using a CF member to present its arguments to that effect.  Anyone know if DND has any lawyers that aren't military officers?

 

[Cloud Cover]

The NDA defines two seperate organizations.  The Department of National Defense and the Canadian Forces (and you will note that there are places in the text where it refers to "the department and the Canadian Forces).  Employment of service personel is described under Part II: The Canadian Forces
http://laws.justice.gc.ca/en/n-5/

Public servants (including civilains in DND) are hired through this:  http://laws.justice.gc.ca/en/P-33.01/255947.html#rid-255990

This is clearly an unsettled issue in the law. It's still worth a shot but I think only if the followig rare facts are in play. I think the only way out if this is if a person was somehow "deemed" no longer to be a member of the CF [section 25] by virtue of the fact they no longer serve under enrolment or re-enagement in the regular force [section15] and for some reason continued to recieve employment benefits like a wage, must be employed by somebody for that period of time, however short that period may be.

One argument would be mounted that employment in the CF continues to the date of release, while another line of argument posits that one is a member of the regular CF no longer than the period of being "deemed" a member. If there was any continuation in employment past the "no-longer deemed" point, then the default employer is who? DND or the crown, it doesn't really matter.  

There needs to be something added to Part II along the lines of:

"There shall be a component of the Canadian Armed Forces consisting of those officers and non-commisioned officers who have enrolled or re-engaged as medically fit for duty in the Canadian Armed Forces and have subsequently been deemed no longer medically fit duty in the Canadian Armed Forces in the Regular Force, Reserve Force or the Special Force. Such medically unfit members shall be deemed to be classified as enrolled or re-engaged members of the Canadian Armed Forces until the date of medical release."  

edit: I would add that since the above provision is not in the act, one must go and construct and arguments supporting or arguing against these circumstances. It will be a tough sell.

 

[armyvern]

Agreed, there are indeed separate parts describing both the "Department" and the "Canadian Forces".  However, in Part I - The Department of National Defence, it states: "The Minister holds office during pleasure, has the management and direction of the Canadian Forces and of all matters relating to national defence and is responsible for..."

Does management include employment?   :-\

Two totally separate entities....but both fall under the "Defense Portfolio" and thus the heads of both DND and the CF report to the same boss...the Minister of National Defense.

Let's just say some guy on civvy street owns two pro hockey teams....all the players on both teams are obviously ultimately paid by the same owner...no one would argue that the players play on both ball teams. Both teams have seperate managers and their own heiracrchy/chain of command. That would make for an interesting Stanley cup play-offs now wouldn't it?