eBULLETIN - October 2010
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Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Situational Assessment of Harassment Complaint
Grievor contested preliminary assessment and subsequent decision that her complaint did not meet the definition of harassment.
Reserve Relocation Allowance (RRA)
The grievor, a reservist, contested decision with regard to his entitlement to the Reserve Relocation Allowance.
Grievor contests a reduction of his Foreign Service premium based on a memo rather than the Compensation and Benefits Instructions.
Case summaries
Situational Assessment of Harassment Complaint
Board Findings and Recommendations
The grievor contested the determination of the harassment complaint she had submitted against her supervisor and colleagues. The Responsible Officer (RO) determined that the alleged incidents were within the proper exercise of authority, and did not meet the definition of harassment.
The grievor contended that the harassment advisor's preliminary assessment of the situation was flawed and that the RO ought to have concluded that the alleged incidents did meet the definition of harassment. She also claimed that she had been issued an unfair personnel evaluation report (PER) due to the harassment she experienced. There was no initial authority decision in this matter.
The Board found that the situational assessment (SA), performed by the RO, was inadequate, and was not conducted according to the Harassment Prevention and Resolution Guidelines (Guidelines). The RO sought representations from the respondents of the complaint, despite the fact that the Guidelines do not contemplate an investigation during the SA process. Further, the RO did not address each of the grievor's allegations separately, making it difficult to conclude that each allegation was given proper attention. Upon reviewing each of the grievor's allegations, the Board found that some of the allegations would meet the definition of harassment, if proven to be true. As such, the Board found that some of the grievor's allegations ought to have been investigated.
With regard to the grievor's PER, the Board compared the scores given to the grievor with the narratives for each performance assessment factor (PAF), and potential factor (PF) in dispute. The Board found that some of the PAF and PF ought to be increased. In addition, the Board found that the grievor's scores supported a promotion recommendation of "Ready", as opposed to one of "Developing" as she received.
The Board recommended that the grievance be partially upheld and that the Chief of the Defence Staff (CDS) direct that the harassment allegations that met the threshold test of the SA be investigated.
The Board recommended that the CDS order that certain of the grievor's PAF and PF be increased. Further, due to the substantial increase in the rating scores, the Board recommended that the grievor's promotion recommendation be changed from Developing to Ready, and that the CDS convene supplementary selection boards for promotions, if necessary.
Decision of Final Authority
The CDS partially disagreed with the Board's findings and its recommendation. The CDS agreed with the Board's finding that the SA was inadequate. The Guidelines do not contemplate the use of respondent's comments, but is solely a review of the harassment complaint itself in order to determine whether or not it complies with the elements of a complaint and whether the allegations meet the definition of harassment. The CDS was also of the view that the SA was not completed within a reasonable timeframe, since it took almost four months for the RO to respond to the grievor. The CDS asked the comd Canadian Expeditionary Force Command to review this issue and to make any adjustments to harassment investigations done within a theatre of operations as he deems necessary.
Although the CDS agreed with the Board's finding that some of the allegations would meet the definition of harassment, if proven to be true, he was not prepared to order an investigation as recommended by the Board, since the grievor had already accepted an apology from one of the respondents. The CDS partially agreed with the Board's recommendation with regard to its evaluation of PAF and PF ratings. Finally, following his consultation with the DGMC staff and the grievor's career manager, the CDS found that there was no requirement for a supplementary merit board for promotion year 2010.
Reserve Relocation Allowance (RRA)
Board Findings and Recommendations
The grievor, a Reservist, was married to a Regular Force (Reg F) member. On March 7, 2006, the grievor's spouse received a posting message effective June 2006. On March 23, 2006, the grievor received an attach posting message to the same geographical area as the spouse, effective August 2006.
The Director Compensation and Benefits Administration (DCBA) issued various messages concerning the grievor's entitlements. The first message indicated the grievor was entitled to the Reserve Relocation Allowance (RRA). The second message cancelled the grievor's entitlement to RRA explaining that the grievor would be relocated under his Reg F spouse's relocation entitlements. The third message specified that the grievor was authorized relocation benefits for a "no cost move" as a dependant of his Reg F spouse. The DCBA explained that because the grievor's spouse was entitled to the posting allowance (PA), the grievor had no entitlement to the RRA; otherwise, it would amount to a duplication of benefits because the spouse had received both the Basic Allowance Element (BAE) and the Dependant Allowance Element (DAE) of the PA.
The grievor submitted a grievance requesting to be granted the full RRA.
The Director General Compensation and Benefits, the initial authority in the matter, denied redress on the basis that the grievor qualified as a Service Spouse and as such, was relocated as a dependant of his Reg F spouse. He added that since the grievor obtained employment in the same geographical area subsequent to his spouse's posting, he was considered a "local hire" for the purposes of relocation benefits and therefore, he was not eligible for RRA.
The grievor's employment was confirmed in writing on March 23, 2006. Since the grievor's family moved on June 5, 2006, the Board found that the grievor obtained his employment prior to the relocation of his family. Additionally, information obtained during the review of the grievance indicated that the grievor's attach posting was a result of a command appointment and therefore, in the circumstances, the Board found that the grievor could have been entitled to a move at public expense.
The Board noted that the policy related to RRA has been amended to clearly state that the members of Reserve service couples are both entitled to RRA, but in the case of a Reservist married to a Reg F spouse, he or she is not entitled to RRA "unless there are other dependants". In the Board's opinion, this amendment confirms that the administration of the RRA is consistent with the PA for Reg F members. While these clarifications were only made in 2009, the Board found that its intended purpose existed in 2006.
The Board found that the grievor was entitled to RRA and recommended that the Chief of the Defence Staff (CDS) grant the grievance. The Board recommended that the CDS order the payment of a RRA to the grievor.
Decision of Final Authority
The CDS agreed with the Board's findings and recommendation to grant the grievance. As a Reserve/Regular service spouse with additional dependants, the grievor was entitled to the Reserve Relocation Allowance as per the CF IRP APS 2009 version.
Foreign Service premium (FSP)
Board Findings and Recommendations
In July 2007, the grievor was posted to an outside Canada location, and was accompanied by his dependants. He was entitled to, and received, the Foreign Service premium (FSP) pursuant to the Compensation and Benefits Instructions (CBI). During May to September of 2008, the grievor was attached posted to Southwest Asia on an operational deployment, creating an entitlement to the operations (OPS) FSP, also pursuant to the CBI.
During his operational deployment, the amount of the grievor's FSP was reduced pursuant to a 2005 memo issued by the Director Compensation and Benefits - Administration (DCBA). The grievor argued that his FSP ought to have been calculated pursuant to the CBI, and not the DCBA memo, and that the amount of his FSP should not have been reduced.
There was no initial authority decision in this matter, as the grievor did not grant the extension requested by the Director General Compensation and Benefits (DGCB). However, the DGCB did provide comments as a subject matter expert, and explained that the DCBA memo was being used to complement the provisions of the CBI. Further, the DGCB confirmed that although the most recent version of the CBI is effective 1 April 2008, specific provisions of the FSP and OPS FSP have not been amended, and that the DCBA is in the process of re-writing the applicable provisions of the CBI.
The Board found that the provisions of the CBI override those found in the DCBA memo, and that the grievor's FSP ought to have been calculated pursuant to the CBI. As such, the grievor's FSP should not have been reduced during his operational deployment.
The Board recommended that the grievance be upheld, and that the Chief of the Defence Staff (CDS) direct that the grievor's FSP be calculated pursuant to the CBI. Further, the Board recommended that the CDS direct a review of the files of other members with circumstances similar to the grievor, to ensure that their FSP was calculated pursuant to the CBI.
Decision of Final Authority
The CDS agreed with the Board's findings and its recommendation to uphold the grievance concerning the calculation of the grievor's Foreign Service Premium (FSP). The CDS agreed that the DCBA letter reduces the FSP amount by the member's share, restricting what is contained in the CBI relating to FSP and operations (OPS) FSP. The CDS also agreed with the Board's systemic recommendations that a review of all files of members in similar circumstances be conducted, and that revisions being proposed to the FSP and OPS FSP policies based on the DCBA letter be reviewed to determine if they are actually necessary.
Statistics
Category of grievances received since 2008
Data as of September 30, 2010
Findings and Recommendations (F&R) rendered in 2010
89 cases as of September 30, 2010
Decisions rendered by the CDS
113 received between January 1, 2010 and September 30, 2010
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