eBULLETIN - April 2011
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Reimbursement of childcare expenses
The grievor contended that she was entitled to reimbursement of additional childcare expenses she paid to her ex-spouse while she was on an international posting.
Approval of sick leave during retirement leave
The grievor contended that, while on retirement leave, she was also entitled to sick leave.
Specialist environmental allowance
The grievor maintained that, while on a career-related course, he should receive the Diving Allowance for the duration of his training because he held a designated position at his home unit and the training was a requirement for his occupation.
Case summaries
Reimbursement of childcare expenses
Board Findings and Recommendations
The grievor and her ex-spouse shared custody of their two children in accordance with a Quebec Court Order; the grievor was also required to pay child support. Prior to an international posting, the grievor negotiated an arrangement with her ex-spouse, under which he would take full-time care of the children in her absence, rather than the 50–50 sharing arrangement in effect while she was not away. Legal custody of the children would continue to be shared. They also agreed that the grievor would pay the husband a monthly amount over and above the child support payment she was already required to make. The ex-spouse submitted this agreement for the official approval of the Superior Court (Family Division) of Quebec, which he received. Consequently, for the period of her duty outside Canada, the grievor made the greater payments as agreed, and the ex-spouse took full-time care of the children. When she returned, the grievor requested reimbursement under the Family Care Assistance (FCA) benefit, in accordance with article 209.335 of Compensation and Benefits Instructions (CBI), the approved Treasury Board regulation. Her request was denied. She submitted a grievance requesting reimbursement in the amount of the total additional payments she made to her former husband while on deployment.
The initial authority (IA), the Acting Director General Compensation and Benefits, denied redress finding that there was a difference between child support as ordered in a Family Court order and childcare expenses as provided for in the CBI. He concluded that an amount paid in response to a Court Order for child support could not qualify as childcare expenses.
The Board disagreed with the proposition adopted by the IA that, just because an amount is paid pursuant to a Court Order, it cannot be considered as childcare expenses under the CBI.
The Board was satisfied that during her deployment, the grievor needed to make childcare arrangements, and that those arrangements had to be paid for. The Board also acknowledged that, given the circumstances, it was reasonable for the grievor to approach her ex-spouse with whom she shared custody, to see whether he might take the children full-time in her absence. In consideration of his agreement to do so, she reasonably agreed to pay him a substantial extra amount each month. In the Board's opinion, on her evidence, and clearly on the face of the matter, the arrangement for the extra payment agreed to by both parties was exactly the purpose contemplated in the CBI and amounted to childcare expenses. This conclusion by the Board was further validated by the immediate reversion to a lower payment level once the grievor returned from overseas.
The Board found that the grievor's situation met the parameters of the CBI in all respects, and that she was entitled to the FCA as claimed.
The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance.
Decision of Final Authority
Pending.
Approval of sick leave during retirement leave
Board Findings and Recommendations
While the grievor was on retirement leave and in the process of being medically released, a civilian physician assessed her as being unable to work for four weeks due to a stressful situation. Accordingly, the grievor submitted a Notification of Hospitalization and/or Application for Sick Leave During Retirement Leave form requesting 30 days sick leave. At the request of the Director Military Careers Administration (DMCA), the Director Medical Policy (D Med Pol) reviewed the request and decided that the sick leave could not be accommodated because the grievor was already on leave and was not actually working.
The grievor argued that the request for sick leave was unique and exclusive of her medical release and should, therefore, be honoured. The grievor also argued that her civilian physician was the proper competent authority to confirm the need for sick leave and that the DMCA should have approved it without referring it to the D Med Pol.
As redress, the grievor asked that she be granted the requested 30 days of sick leave and that her release date be adjusted accordingly.
The initial authority (IA), the Director General Military Careers (DGMC), denied redress explaining that the D Med Pol is the sole Canadian Forces (CF) medical authority and their recommendation must be obtained prior to any approval of sick leave during retirement leave. The DGMC further explained that this position was clarified in the Canadian Forces Leave Policy Manual (CFLPM) and in the former Canadian Forces Administrative Order 16-1 - Leave, and was contrary to the grievor's argument. The DGMC stated that the CF was aware that a member on a medical release is ill and has been awarded an appropriate period of time to transition to civilian care. Therefore, sick leave is not normally approved for the ongoing treatment of the illness or condition that resulted in the medical release.
The Board found that:
- the grievor, being on retirement leave, was not entitled to a return of annual leave when sick, in the same manner as an actively serving CF member;
- the D Med Pol is the appropriate authority for granting sick leave while on retirement leave;
- the Director General Health Services (DGHS) Guidelines contemplate the granting of sick leave while on terminal leave and make it clear that a medical judgement is required based on "the circumstances and the prognosis of the member's condition";
- the D Med Pol should have sought additional justification from the grievor before denying her request;
- in the absence of a specific test or definition in the DGHS Guidelines, it would be reasonable to grant non-elective procedure related sick leave when, while on retirement leave, a member is incapacitated to such a degree as to be unable to attend to the daily activities that would otherwise have been conducted while on leave;
- the evidence provided by the grievor established, on a balance of probabilities, that she was as incapacitated at that time; and
- the Chief of the Defence Staff (CDS) was not authorized to grant sick leave but was authorized to grant up to 30 calendar days of special leave.
The Board recommended that the grievance be upheld by granting 30 days of special leave to the grievor with her release date amended accordingly.
Decision of Final Authority
The CDS partially agreed with the Board's findings and recommendation to uphold the grievance. Based on article 16.20 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), he authorized 28 days of special leave, instead of the requested 30 days, to compensate for the four weeks of sick leave.
Specialist environmental allowance
Board Findings and Recommendations
The grievor, a qualified specialist non-commissioned member, was posted to a designated position and entitled to the applicable specialist monthly environmental allowance, more precisely the Diving Allowance (DIVGA). The grievor attended a seven-month career-related course on temporary duty, which was subsequently changed to an attached posting. As a result of this change, the grievor was advised that the specialist allowance would be ceased in accordance with Canadian Forces Administrative Order (CFAO) 205-25 - Environmental Allowances. The CFAO provided that an "attached posting" had the same meaning as a "posting" and required that the specialist allowance be ceased at the end of the day on which a member was posted.
The grievor's position was that he should receive the allowance for the duration of his training because he held a designated position at his home unit, and the training was a requirement for his occupation. As redress, the grievor requested that his specialist environmental allowance be reinstated for the duration of his course.
The Board noted that eligibility for the allowance under the applicable Compensation and Benefits Instructions (CBI) is based on a member being properly qualified and filling a designated position. The CBI contained no provision for ceasing the allowance during temporary absences. In the grievor's case, he was posted into the designated position and was properly qualified to receive the allowance.
The Board observed that, in ceasing the allowance, the administrative authority relied on the definition in CFAO 205-25 that (for the purposes of that Order only) "attached posted" had the same meaning as "posted" and "employed in" and that the allowance ceases at the end of the day when attached posted, as if the grievor had been posted out of the position.
The Board did not agree with the administrative authority's reasoning, finding that it was not open to the Canadian Forces (CF) through the use of a deeming provision in a CFAO to disentitle a member from a benefit to which he would otherwise be entitled pursuant to a regulation such as a CBI.
The Board found that the grievor was eligible for the allowance because he was filling a duly authorized designated position at his home unit whilst he was temporarily away on training.
The Board recommended that the grievance be upheld and the grievor be paid the allowance for the duration of his training.
The Board recommended that the Chief of the Defence Staff (CDS) direct a review of the files of all CF members who attended the same course as the grievor or a similar one offered by the CF and who were denied the DIVGA, in order to ensure that all who were qualified and who were posted into a position authorized by the Minister receive the applicable specialist environmental allowance.
The Board also recommended that the CDS direct a review of the DIVGA and other environmental allowances to ensure that the related administrative directions do not serve to limit benefits authorized by the applicable CBI.
Decision of Final Authority
Pending.
Statistics
Category of grievances received since 2008
Data as of March 31, 2011
[Long description of Category of grievances received since 2008 chart]
Findings and Recommendations (F&R) rendered in 2011
33 cases as of March 31, 2011
[Long description of Findings and Recommendations (F&R) rendered in 2011 chart]
Decisions rendered by the CDS
57 received between January 1, 2011 and June 30, 2011
[Long description of Decisions rendered by the CDS chart]
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