Case # 2012-117

30-Day Entitlement to Annual Leave and Past Reserve Force Service, Leave entitlement

Case Summary

F&R Date: 2012–11–30

In 1983, the grievor enrolled in the Canadian Forces (CF) as a Reserve Force (Res F) member under the Youth Training Employment Program (YTEP), a program designed to assist in the relief of Canadian youth unemployment. Through a one-year Class C Reserve Service employment agreement, participants were provided with basic and trades training, followed by on-job assignment in the CF. Many, like the grievor, enrolled under the YTEP program and then transferred to the Regular Force (Reg F) and continued to serve in the CF.

In May 2011, after completing 28 years of continuous service in the CF, the grievor was denied entitlement to 30 days of Annual Leave because the year spent in the Res F under the YTEP could not be credited towards the calculation of 28 years of consecutive service for leave purposes. Accordingly, the Board had to determine whether the grievor should have been entitled to count her Res F service as part of the continuous 28 years of CF service required for the entitlement to 30 days of Annual Leave.

The grievor argued that the CF policies on leave were discriminatory towards Res F members as they do not credit time served in the Res F towards the calculation for 30 days Annual Leave. She also pointed out that prior Res F service is counted towards obtaining up to 25 days of Annual Leave so why is it not considered for earning 30 days of Annual Leave.

The grievor asserted that she had served loyally and with as much dedication as any other

Reg F member during her service with the CF and she should be recognised for it. The grievor suggested that due to the nature of the YTEP, her service in the Res F should be considered equivalent to Reg F service.

The Initial Authority (IA), the Director General Compensation and Benefits (DGCB), decided not to adjudicate the grievance, finding that the redress sought required expanding the boundary of the current policy and, since that was outside the authority of any CF officer to grant, the grievance could not be considered and determined.

The Board noted that the Jurisdiction Officer of the Director General Canadian Forces Grievance Authority questioned the IA’s decision, arguing that subsection 29 of the National Defence Act does not require that an officer in the CF be able to grant a grievance as a precondition for the right to grieve. Accordingly, the Jurisdiction officer recommended that the Final Authority (FA) accept the grievance. The Board concurred with this recommendation.

The Board then examined the Queen’s Regulations and Orders for the Canadian Forces (QR&O) 16.14 and the CF Leave Policy Manual. The Board found that in the grievor’s case, the QR&O was explicit: for the purpose of calculating 28 years of service, only the present continuous Reg F service and the last previous period of Reg F service can be taken into account. Any other type of military service is excluded from the calculation. Accordingly, the Board found that, in the absence of any discretion in article 16.14 of the QR&O, the YTEP service could not be considered for the purpose of calculating entitlement to 30 days of Annual Leave.

The Board also considered the grievor’s claim that the regulation was discriminatory and found that the CF policies on leave were not discriminatory since the difference in treatment between Reg F and Res F members did not equate to discrimination under the prohibited grounds of the Canadian Human Rights Act. Notwithstanding that the CF policies on leave were found not to be discriminatory, the Board did find that the different treatment of former Res F service was unfair. The Board therefore issued a systemic recommendation suggesting that the Chief of the Defence Staff (CDS) direct the revision of the CF Leave Policy such that Res F time is taken into account for the calculation of the 30 day Annual Leave entitlement. The Board also recommended that the CDS set a fixed delivery date for that revision to be implemented that would be retroactive to 2008. The systemic recommendation may be reviewed in greater detail at the Board’s website.

The Board recommended that the CDS deny the grievance.

CDS Decision Summary

CDS Decision Pending