Case # 2012-167

Environmental Allowances

Case Summary

F&R Date: 2013–03–15

The grievor complained that he was unfairly denied the Diving Allowance while on a course of over six months. He sought the allowance for the full period on the basis that he continued to occupy a designated diving position throughout the time he was on course.

The Initial Authority, the Director General Compensation and Benefits (DGCB), denied the grievance, finding that the grievor was not subject to the type of continuous and substantial environmental exposure for which the allowance was intended to compensate. In her decision, the DGCB relied upon Canadian Forces Administrative Order 205-25 (Environmental Allowances) as well as the comments of a DGCB subject matter expert who quoted from a 1976 Treasury Board (TB) study that provided for cessation of the Diving Allowance if the grievor was not subject to the continuous and substantial exposure for which the allowance was paid.

While the Board acknowledged the role of CFAOs in amplifying regulations such as Compensation and Benefits Instructions (CBI), it noted that it is not open to the Canadian Forces to divine the intent of TB approved policies in a manner that either expands or restricts their scope. The Board pointed out that the Chief of the Defence Staff (CDS) had agreed with this principle in a number of grievance decisions and held that the failure to exercise discretion to grant the benefit when all criteria are met defeats the TB approved regulatory scheme. Consequently, the Board concluded that CBI 205.34 – Diving Allowance, was the TB approved policy to be applied in this case.

The Board found that CBI 205.34 - Diving Allowance, contained no stipulation that would cease the grievor's entitlement to the diving allowance solely on the basis that he was on a course longer than six months in duration.

The Board further observed that, had TB wished to include such a stipulation, it could easily have done so within the CBI. Finally, the Board noted that CFAO 205-25 permits a ship's diver to retain the allowance for the first six months that a ship is in refit, notwithstanding that the diver is not facing any continuous and substantial environmental exposure during this time. The Board concluded that CFAO 205-25 had been misapplied in this case by the Initial Authority who, at a minimum, should have granted the allowance for the first six months of the course.

The Board found that the grievor met the criteria set out in CBI 205.34 and that he should be paid the Diving Allowance for the full duration of his course.

The Board recommended that the CDS uphold the grievance.

The Board also made a systemic recommendation on an issue in this case.

CDS Decision Summary

CDS Decision Pending