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EMPLOYEES - Promotion - Procedural requirements

Tuesday, July 11, 2017 @ 10:01 AM  

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Appeal by Gladman from the dismissal of his application for judicial review of a decision of the Deputy Minister of National Defence, denying Gladman’s application for a promotion to a more senior classification level. Gladman worked as a Defence Scientist for the Department of National Defence (DND). He was classified at the DS-04 level, which was the working level classification for experienced DND scientists who demonstrated the ability to work independently under general supervision or direction. Gladman applied in January 2015 to be promoted to DS-05, the senior working level for scientists who established a reputation, mastery and leadership in a complex field of Defence Scientific Research Development and Analysis. To achieve DS-05 classification, a scientist was required, among other criteria, to demonstrate that his work had made superior impacts on client policy, equipment, engineering or operational issues, by exploiting the application of technology and/or defence scientific analyses. Gladman had a doctorate degree in military history and had worked as a researcher and analyst at the DND since 2003. He wrote a book in 2009 about World War II. He made a prior unsuccessful application for promotion to DS-05 in 2014.  The Minute Sheet refusing his promotion stated that he was progressing very well towards the SC-05 level and that he should continue his contributions to achieve a consistent multi-year history of creativity and superior impacts. Gladman’s 2015 application relied significantly on his 2009 book. The Career Progression Committee (Committee) determined there had only been incremental evidence provided relating to the prior year’s recommendations and that Gladman had not succeeded in establishing the sustained degree of creativity and impacts required for the promotion. Gladman sought review of the Committee’s decision. The Reviewer considered all of the information exchanged between Gladman and the Committee and found that the process was fully satisfactory and that the decision was sound. The Deputy Minister accepted the Reviewer’s report without further reasons. On judicial review, the Court found there had been no denial of procedural fairness and that the Reviewer had treated the merits of Gladman’s application reasonably.

HELD: Appeal dismissed. The Reviewer gave due consideration to Gladman’s arguments about the scope of the impact criterion at the DS-05 level and concluded that it was a reasonable elaboration of this competency to require that an incumbent demonstrate sustained multi-year impacts for promotion to the DS-05 level. Gladman was not denied procedural fairness because he was not informed by the Reviewer that a Committee member had changed his mind about Gladman’s entitlement to the promotion at some time during the process of considering his application. The process itself, requiring consensus among Committee members, contemplated members changing their positions.

Gladman v. Canada (Attorney General), [2017] F.C.J. No. 551, Federal Court of Appeal, E.R. Dawson, Y. de Montigny and M.J.L. Gleason JJ.A., May 25, 2017. Digest No. TLD-July102017005