eBULLETIN - May 2010

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Contents

Highlights

Case Summaries

Statistics

Mailing List

See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.

Highlights

Terms of employment for Reservists

The grievor contended that the designation of his position should be changed from Class B to Class C Reserve Service given the nature of his duties and the particular role of his unit.

Interim Lodging, Meals and Incidentals

The grievor claimed that he should be reimbursed the full meal rate, without receipts, for the entire time he and his family were required to spend living in a hotel on interim lodgings and meals.

Conduct vs Medical Release

The grievor contended that his changed behaviour, caused by deteriorating mental health, should have led to a medical release from the Canadian Forces rather than a release under item 5(f) of the table to Queen's Regulations and Orders 15.01.

Case summaries

Terms of employment for Reservists

Board Findings and Recommendations

In March 2002, the Canadian Forces approved a new Reserve Employment Framework under which it was decided to limit Class C Reserve Service and the accompanying Regular Force rates of pay to reservists on operations. Later in 2002, the positions at the grievor's unit were designated as Class C, as its members were involved in operations approved by the Chief of the Defence Staff (CDS). A year later, however, following the directives issued by the Vice Chief of the Defence Staff, the Chief of the Maritime Staff directed that the Reserve Personnel at the grievor's unit be authorized Class B Reserve Service employment in place of Class C.

According to the Statement of Understanding (SOU) signed by the grievor, he agreed to serve on Class B Reserve Service. However, the grievor was authorized Class C Reserve Service whenever he was deployed at sea. The grievor asked that the designation of his position be changed from Class B to Class C given the nature of his duties and the particular role of his unit.

While there was no initial authority decision, the grievor received the support of his chain of command. The Board considered that the grievor's unit was an operational unit and that he spent a substantial amount of time at sea, reflected by the fact that he received full-time sea duty allowance. The Board determined that the duties of his position met the definition of "routine operations" as prescribed in the CDS directive on Class C Reserve Service. As such, the Board found that the grievor's position should have been designated as Class C Reserve Service and that the grievor was entitled to the accompanying pay.

The Board recommended to the CDS that the grievance be upheld and that a review be ordered to determine whether other members in a situation similar to the grievor were entitled to Class C service.

Decision of Final Authority

The CDS did not agree with the Board's findings and recommendation to uphold the grievance. The CDS disagreed with the Board's interpretation of the regulations that if a unit is considered as an operational one, then by extension, the activities performed by the unit, both at sea and when ashore are "routine naval operations".

Although the CDS acknowledged the unique nature of the grievor's employment, he found that there was a fundamental difference between being a separate entity ensuring that preparations and training within the unit are complete and that the unit is operationally ready for an operation, and being an integral part of the unit engaged, or preparing to engage in the operation. Consequently, when the grievor is not embarked in a MCDV, he does no longer meet the requirements for a Class C service designation and, as is the case for other shore based staff, he reverts to Class B service. The CDS reminded that in the Federal Court decision Armstrong v. Attorney General of Canada, the Court agreed that the Queen's Regulations and Orders for the Canadian Forces gives the CDS full discretion to choose between classes of service for any given position.

However, the CDS directed that the Chief of the Maritime Staff examine the problems associated with the administration of reserve pay Sea Training Atlantic, with a view to improving, what appears to be, a system that is failing to provide CF members with what he considers to be an acceptable level of support.

Interim Lodging, Meals and Incidentals

Board Findings and Recommendations

The grievor was posted to a foreign country. Due to delays in the delivery of his household goods and effects (HG&E), the grievor and his family were required to spend 77 days living in a hotel on interim lodgings and meals (IL&M).

The relevant relocation policies provided for members to receive the full meal rate for the first 30 days, and 65% of the meal rate for days 31–45, or 100% if receipts were provided. The grievor was reimbursed in accordance with the policy.

The grievor claimed that the delays in the delivery of his HG&E were beyond his control and he should therefore be reimbursed the full meal rate for the entire 77 days without receipts because there was no short-term self-catering accommodation available. He also contended that the cost of meals was more than the full meal rate and that it was virtually impossible to obtain receipts at most locations in that country. He added that he had not received foreign language training and was therefore unable to communicate the requirement for a receipt at restaurants, and that he was not aware of the requirement for receipts until half way through his period of IL&M. He provided no receipts for any meals consumed over the 77-day period.

The Board accepted the grievor's contentions that the delay in the delivery of his HG&E was beyond his control and that there was no accommodation with self-catering facilities. The Board did not accept, however, that it was impossible to obtain receipts for all meals, given that the city in question is a large city with most modern conveniences including restaurants at which credit cards are widely accepted.

The Board found that the grievor received the reimbursement to which he was entitled. Furthermore, in the absence of any receipts over a 47-day period, as well as a lack of any substantive evidence concerning the impossibility to obtain receipts, the Board found that this is not a case where it would be appropriate to recommend a further exercise of Ministerial discretion.

The Board recommended that the Chief of the Defence Staff deny the grievance.

Decision of Final Authority

The CDS agreed with the Board's findings and recommendation to deny the grievance.

Conduct vs Medical Release

Board Findings and Recommendations

After having served in the Canadian Forces (CF) for more than 10 years, including tours in Croatia and Kosovo, as well as deployments during the Winnipeg Floods, the Quebec Ice Storm and the earthquake in Turkey, the grievor was deployed to Afghanistan. After returning from Afghanistan, he was promoted and posted to the Navy environment after having spent his entire career with the Army.

Within six months the grievor was diagnosed with depression and identified as a "high risk" for developing post traumatic stress disorder (PTSD). The grievor began therapy at that point but his mental health seemed to continue to deteriorate causing behavioural changes. Two years later, the grievor stole expired medication from the Medical Provisioning Point to self-medicate. This incident of illicit drug use ultimately resulted in his being released from the CF under item 5(f) of the table to Queen's Regulations and Orders for the Canadian Forces 15.01.

In his grievance, the grievor contended that his changed behaviour, and the theft of the expired medication, was caused by his deteriorated mental health condition. As such, he contended that he should have been medically released. The grievor's counsel suggested that if the grievor had been charged for the theft, his medical condition would likely have played a significant part as a mitigating factor when it came to sentencing and it would probably have resulted in only a fine. The grievor would then likely have been placed on counseling and probation, and possibly been required to occupationally transfer, but he would have been retained in the CF. Counsel argued that the grievor was being released because he could not continue as a fully functioning member of the CF because of his mental health condition, and not because of the theft. Therefore he concluded the appropriate release item should be 3(b).

The Board considered the grievor's specific circumstances in view of guidelines issued by the Chief of Military Personnel for considering 3(b) versus 5(f) release items. In doing so, the Board determined that:

• The grievor's mental health injury manifested itself after his return from Afghanistan and may have been related to his service in Afghanistan, his promotion, his posting, or a combination thereof;
• The evidence confirmed an absence of atypical behaviour prior to his tour in Afghanistan;
• The attending medical authorities agreed that PTSD was quite possibly a contributor to his mental health problems;

On a balance of probabilities, there was a plausible causal link between the grievor's mental health condition and his atypical behaviour.

The Board recommended the Chief of the Defence Staff uphold the grievance and that the grievor's release item be amended to 3(b).

Decision of Final Authority

The CDS agreed with the Board's recommendation to uphold the grievance, and that the grievor's release item be changed from 5(f) to 3(b), but for different reasons. Unlike the Board, the CDS was not convinced that there was a causal link between the grievor's mental state and his behavior, since it was not possible to confirm whether or not the grievor was in control of his actions when he stole the expired medication. While his medical condition may have exacerbated his atypical behavior, it did not excuse his actions. In light of the grievor's permanent medical category and associated medical employment limitations, had the grievor not been released under 5(f), the CDS was confident that the grievor would have been given a medical release in due course.

Statistics

Category of grievances received since 2008

Data as of April 30, 2010

Findings and Recommendations (F&R) rendered in 2010

25 cases as of April 30, 2010

Decisions rendered by the CDS

54 received between January 1, 2010 and April 30, 2010