Case # 2009-011

Administration of Imposed Restriction and Separation Expense, Allowances and Benefits, Exceptional circumstance, Grievance Submitted to the IA Outside the Time Limit (QR&O 7.02), Integrated Relocation Program (CF IRP), Relocation, Special Commuting Assistance (SCA)

Case Summary

F&R Date: 2009–07–24

The grievor transferred from the Regular Force (Reg F) to the Reserve Force in 1996 and moved to his intended place of residence. He re-enrolled in the Reg F in 2002 in order to accept an overseas accompanied posting. Shortly before his posting, the grievor’s family suffered the tragic loss of a son but did not have much time to mourn their loss before moving overseas. The grievor sold his residence, had his household goods and effects (HG&E) placed in long term storage (LTS), and moved to his overseas location. In 2005, he purchased a new residence in the same location as his former residence and his family returned.

Subsequently, the grievor was posted back to Canada in 2006 to a Reserve unit some 130 kilometres from his new residence. The grievor’s career manager authorized an imposed restriction (IR) and the resulting separation expense (SE). He also received his commanding officer’s permission to live outside the geographical boundaries of his new unit. However, the Director Compensation and Benefits Administration (DCBA) decided that the grievor’s new residence was not outside the geographical boundaries but was in fact a third location because he could not reasonably commute on a daily basis. He also determined that the grievor was not eligible for an IR or the SE and cancelled the IR. In order to get his HG&E released from LTS, the grievor rented an apartment near his new unit but ultimately gave that up to commute three days per week and stay over in the unit lines on the training evening. When the unit was not in its training period he commuted daily.

In his grievance, the grievor requested that his IR be reinstated.

The initial authority (IA) offered an informal resolution to reimburse the grievor’s real estate and legal fees and to consider the new residence he had purchased in 2005 to be his principal residence for any future move. When the grievor rejected the informal resolution, the IA denied redress for the same reasons as the DCBA.

The Board found that the Compensation and Benefits Instructions made no provision for the payment of SE when the member’s family does not remain at the former place of duty and, therefore, the grievor did not meet the IR or SE eligibility criteria.

The Board found that, although the DCBA third location decision was not necessarily unreasonable, the DCBA guidelines used to make that decision were just guidelines. Therefore, the Board found the grievor’s CO to be in the best position to determine whether it was in the best interests of his unit for the grievor to live where he did and whether he could reasonably commute given the local conditions such as road and weather.

The Board recommended to the Chief of the Defence Staff (CDS) that the grievor’s new residence be considered to be outside the geographical boundaries of his unit and not a third location with the related benefits of an outside the area move in accordance with the Canadian Forces Integrated Relocation Program for 2006.

Systemic Recommendation

The Board commented on the fact that the SE and IR policies are not reconcilable since the SE benefit is governed by a Treasury Board (TB)regulation, while IR requirements are provided under a CANFORGEN. In terms of approval authorities, the IR policy gives the career manager the authority to approve IR status, while the DCBA controls the payment of the SE, the benefit which flows from the IR designation. The Board has expressed the view that since both the IR status and SE benefits are so interrelated, there should only be one authority to approve them both.

In a number of cases reviewed by the Board so far, the career manager has authorized an IR only to have the DCBA revoke the SE in arrears. In some cases, this caused significant amounts of money to be recovered. As well, CF members have been left with extra living and/or transportation expenses that they might not have incurred had the IR been properly authorized or denied in the first place.

The Board recommended that the CDS direct an IR policy review and representations be made to the TB if necessary in order to clearly address IR status and SE entitlements or ineligibilities through proper regulations. The Board further recommended that, in the interim, clear direction be issued to the IR approval authority regarding the circumstances under which IR may be approved so as to avoid the regrettable situation of having one authority approve a benefit while another cancels it.

CDS Decision Summary

CDS Decision Date: 2010–03–15

The CDS agreed with the Board finding's and its recommendation that the grievor’s new residence be considered to be outside the geographical boundaries of his unit and not a third location with the related benefits of an outside-the-area move in accordance with the CF IRP 2006.