eBULLETIN - January 2011
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Entitlement to concurrent payment of the Sea Duty Allowance and the Hardship Allowance
The grievor contended that he was entitled to the Sea Duty Allowance (SDA) in addition to the Hardship Allowance (HA) for the period his ship was in the theatre of operations.
Reimbursement of Real Estate Commission upon purchase of a house
The grievor contended that the commission fees on the purchase of his new home should be paid by public funds.
Mortgage Loan Insurance and other relocation related benefits
The grievor, who was transferred from outside Canada, contests loss of mortgage loan insurance (MLI) benefit, misinterpretation of lodging fee, and miscalculation of distance and rate used to calculate his travel to new location (TNL).
Case summaries
Entitlement to concurrent payment of the Sea Duty Allowance and the Hardship Allowance
Board Findings and Recommendations
The grievor explained that during his deployment on Operation ALTAIR his Sea Duty Allowance (SDA) ceased while he was drawing the Hardship Allowance (HA), in accordance with a message issued by the Director General Compensation and Benefits (DGCB) on 2 September 2003. This message stated that there was an entitlement to both allowances but that the HA and SDA were not to be paid concurrently until a review directed by the Treasury Board (TB) had been carried out. The grievor contended that the DGCB messages clearly stated that both allowances would be paid once the overlap was identified and removed. The grievor took the position that the difference between the HA and SDA is that the SDA covers the regular hardship of daily life at sea whereas the HA covered the hardships of being on a major deployment, which are considerably different than normal sea going operations. He stated that, if there are overlaps between the two allowances, they need to be sorted out to allow for the payment of both SDA and HA. The grievor argued that, had the review taken place as directed by TB, he would have received the SDA in addition to the HA and Risk Allowance (RA), tax free.
As redress, the grievor requested that his SDA for the period of his time in the theatre of operations be reinstated along with the tax free status to which the allowance would have been subject at that time.
The initial authority denied redress because he considered that the policies in place did not permit the concurrent payment of the HA and SDA. The DGCB acknowledged that, until such time the two regulations are brought into line, there may be some confusion with one another; however, a deployed member could not receive both allowances within the current policy framework. The DGCB subject matter expert stated that the Departmental Hardship and Risk Committee (DHRC) had determined that a substantial portion of the criteria outlined on the HA assessment did in fact represent similar criteria on the SDA assessment, thereby representing compensation for similar or identical conditions.
The Board found that the HA and SDA are intended to serve different purposes and there is no bar to receiving both. Therefore, the Board found that the grievor was entitled to both HA and SDA for the period his ship was in the theatre of operations.
The Board recommended that the grievance be upheld and the grievor paid the SDA for the period his ship was in the theatre of operations.
The Board noted that the DGCB denial of the payment of both HA and SDA had been in effect since 2 September 2003 and, as a result, there were a considerable number of CF members who had been deployed on maritime operations who had also been denied the benefit of both allowances. Therefore, the Board recommended that the service of all members who have deployed on maritime operations be reviewed and the HA or SDA, as applicable, be paid to these members.
Decision of Final Authority
The Chief of the Defence Staff (CDS) did not agree with the Board's findings and its recommendation that the grievance be upheld. The CDS agreed that the SDA and HA serve different purposes, but he stated that concurrent payment of the SDA and the HA would amount to double compensation. The CDS was of the view that the grievor was already granted the HA during the operational deployment and the SDA factors were already included in the calculation of the HA level at the onset of his deployment. The CDS was satisfied that the grievor has been treated appropriately under the interim DGCB policy governing the payment of allowances during operational deployments.
Reimbursement of Real Estate Commission upon purchase of a house
Board Findings and Recommendations
The grievor purchased a house which was being privately sold with the help of a realtor. The grievor signed an agreement with the realtor that he would pay commission fees if the seller was not willing to do so. Therefore, the grievor was responsible for paying for the commission, which he did. However, the grievor submitted a grievance indicating that the commission should be paid by public funds, and the policy surrounding moves should be more specific with respect to this issue.
There was no initial authority decision on file as the time-extension request was denied by the grievor.
The Board reviewed the applicable policies and found that the grievor was not entitled to have the commission fees paid through public funds. The Board noted that the policy did not allow for the reimbursement of commission on the purchase of a sale, and there were no compelling reasons to use ministerial discretion to do so. However, the Board found that, although the policy previously included a Note of caution that commission fees would not be paid on the purchase of a home, that Note had since been removed from more current versions. Therefore, although the Board recommended that the Chief of the Defence Staff (CDS) deny the grievance, it also recommended that the Note be re-inserted into the policy to provide clear direction.
Decision of Final Authority
The CDS agreed with the Board's findings and its recommendation to deny the grievance. Treasury Board (TB) authorized exactly what fees can be reimbursed in the Canadian Forces Integrated Relocation Program (CF IRP) 2009 and the reimbursement of real estate commission (REC) upon purchase of a house it is not included. Therefore, the CDS was satisfied that, based on the applicable policy, the grievor was not entitled to reimbursement of the REC he incurred as a buyer. The grievor made a personal choice in signing the Buyer Representation Agreement which is not binding on the CF. Finally, the grievor's situation did not meet the conditions stated in Compensation and Benefits Instructions (CBI) 209.013 or that it is sufficiently unique or compelling in nature to warrant ministerial discretion.
The CDS agreed with the Board's systemic recommendation that a note regarding non admissible expenses be reinserted into future CF IRP manuals and in the It's Your Move manual, like it was in the CF IRP in Active Posting Season (APS) 2006 and 2007 manuals.
Mortgage Loan Insurance and other relocation related benefits
Board Findings and Recommendations
Upon being transferred from outside Canada, the grievor received his initial consult with Royal LePage Relocation Services regarding the level of funding he would be entitled to receive according to the Canadian Forces Integrated Relocation Program (CF IRP) policy in effect at the time of the briefing, rather than the one that became effective just before his posting.
Based on the new policy, the entitlement requirements for the mortgage loan insurance (MLI) on the purchase of a new home changed and the grievor no longer qualified for this benefit. Moreover, while the grievor had stayed on commercial campground with his travel trailer while moving his family to his new post, he was informed that he was only entitled to a non-commercial lodging allowance as opposed to the reimbursement of his commercial lodging fees. According to the Director Compensation and Benefits Administration (DCBA), under the CF IRP, travel trailers met the definition of non-commercial lodgings. Finally, the grievor also contested the distance and rate used to calculate his travel to new location (TNL).
The Acting Director General Compensation and Benefits (A/DGCB) partially upheld the grievance. The TNL related issues were resolved to the grievor's satisfaction. However, the A/DGCB maintained the DCBA's decision regarding the other issues (commercial/non-commercial lodgings and the MLI expenses) and denied redress.
With regards to the grievor's commercial campground fees, the Board acknowledged that a travel trailer was listed as an example for non-commercial lodging, but noted that the list was not meant to be exhaustive. The Board concluded that in order to determine the intended meaning of a term, one must look at the actual definition provided and see if other examples and circumstances could meet the definition. In the case at hand, while a travel trailer was used as opposed to a hotel room, the grievor was charged a “predetermined rate” for services, received a receipt and the establishments used to park his trailer were opened to the public in general. Accordingly, the grievor's use of his travel trailer met the definition of commercial lodgings. Therefore, the Board found that, in the circumstances, the grievor was entitled to be reimbusered his commercial campground fees.
As for the MLI, the Board noted that the new CF IRP required members to transfer all of the equity onto the purchase of a new residence to entitle them to MLI - a condition that did not exist at the time the grievor sold the principal residence he owned prior to his transfer outside of Canada. The Board found that the grievor's relocation could not be governed by the previous CF IRP and, therefore, he could not be reimbursed for his MLI expenses. The Board also found that the ministerial discretion could not be exercised to reimburse the grievor's MLI expenses, as doing so would provide him with a benefit that was expressly precluded by the CF IRP.
The Board recommended that the CDS partially grant the redress. More specifically, it recommended that the grievor's commercial campground fees be considered commercial lodgings and that he be reimbursed accordingly.
Decision of Final Authority
The CDS agreed with the Board's recommandation to partially uphold the grievance.
Statistics
Category of grievances received since 2008
December 31, 2010
[Long description of Category of grievances received since 2008 chart]
Findings and Recommendations (F&R) rendered in 2010
120 cases as of December 31, 2010
[Long description of Findings and Recommendations (F&R) rendered in 2010 chart]
Decisions rendered by the CDS
134 received between January 1, 2010 and December 31, 2010
[Long description of Decisions rendered by the CDS chart]
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