Case # 2012-119

Component Transfer, Component Transfer (CT), Pay protection

Case Summary

F&R Date: 2012–11–29

The grievor, then a non-commissioned member (NCM) of the Primary Reserve (P Res), transferred to the Regular Force (Reg F) under an officer entry program in 1973 at which time P Res NCM service was not considered in determining the appropriate Reg F officer rate of pay. The grievor sought the recalculation of his rate of pay on Component Transfer (CT), taking into account his P Res NCM service.

The issues to be determined by the Board were whether the grievor’s release from the P Res and enrolment in the Reg F was actually a CT and, if so, whether that prior P Res service should be retroactively considered in determining the appropriate initial Reg F rate of pay.

The grievor pointed out that the Chief of the Defence Staff (CDS) had recently upheld grievances involving situations similar to his dating as far back as 1997. The grievor argued that those recent CDS decisions effectively removed any retroactive limitation to the application of the Chief of Military Personnel’s (CMP) 23 April 2001 Interim Policy, which grants pay protection on CT but not retroactively.

The Initial Authority (IA), the Commander Canadian Forces Recruiting Group, denied the grievance, explaining that, notwithstanding the related CDS grievance decisions, the CMP 2001 Interim Policy remained the legal policy on which he had to rely. The IA found that neither the CMP 2001 Interim Policy nor the latitude permitted by the CDS decisions were applicable to the grievor’s case; there being no clear authority for pay protection extending back 39 years, some 24 years prior to the cases previously decided by the CDS.

The Board first examined the grievor’s release from the P Res and subsequent enrolment in the Reg F which appeared to be a break in service. The board determined that the release and re-enrolment several weeks later was simply the expedient administrative process of the day, and found that the grievor was, in effect, transferred from the P Res to the Reg F in 1973.

The Board searched for but was unable to discover any policy that provided pay protection for P Res NCMs transferring to the Reg F as officers prior to the CMP 2001 Interim Policy.

The Board then considered a number of cases granted by the CDS where the CT had occurred prior to the introduction of the CMP 2001 Interim Policy. These included CTs occurring as far back as 1997. The Board noted that although the CDS had directed the CMP to review the Interim Policy as a result of these grievance decisions, he had not specified to CMP how far back he was prepared to retroactively apply the pay protection policy. As a consequence, the CMP 2001 Interim Policy has not yet been revised in this respect.

The Board observed that it has previously recommended 27 March 1996 to the CDS as the specific date beyond which the CMP 2001 Interim Policy should not be retroactively applied. This date was recommended because it matched the CMP’s 27 March 1996 amendment to the Time Credit for Promotion(TCP) policy for Res F members transferring to the Reg F and because the CDS had indicated in a prior grievance decision that he was not prepared to apply the TCP policy amendment retroactively. However, the grievance in which the Board made that recommendation was resolved informally and so the CDS did not have an opportunity to consider the Board’s suggestion.

Given the Board’s recommendation to the CDS that 27 March 1996 is the appropriate date to limit retroactive application of the CMP 2001 Interim Policy, the Board found that the pay protection afforded by the policy should not apply to the grievor’s 1973 CT.

The Board recommended that the CDS deny the grievance.

The Board also made two systemic recommendations regarding pay protection on CT – P Res NCM to Reg F officer [see Systemic Recommendations for file 2012-119 on the Board’s web site].

CDS Decision Summary

CDS Decision Pending