eBULLETIN - July 2011
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Miscalculation of annual leave
The grievor contended that, because he was not responsible for the mistake made in the calculation of his annual leave, he should be reimbursed the amount equivalent to the leave days he had to repay.
The grievor contended that, while assigned to an internal task belonging to a different unit, he should still receive the Land Duty Allowance as his substantive unit is a field unit.
The grievor requested that his rank on release be restored with all associated benefits and pay entitlements, including severance pay, after his promotion was cancelled because he retired before reporting to his new unit.
Case summaries
Miscalculation of annual leave
Board Findings and Recommendations
As the grievor was transferred from the Reserve Force to the Regular Force, a miscalculation of his annual leave occurred, and, as a result, he received a number of five days to which he was not entitled. The Canadian Forces (CF) did not notice the error until two years later and asked the grievor to repay the equivalent of ten leave days. The grievor claimed that he had trusted the staff at the Canadian Forces Recruiting Centre and had subsequently used only the number of leave days to which he mistakenly believed he was entitled. He asked that he be reimbursed an amount equivalent to the ten leave days that he had to repay.
The initial authority (IA) denied the grievance. The IA found that the grievor should have realized that an error had been made. The IA also stated that the fact that the grievor did not attempt to have the error corrected was punishable, but decided to not take any administrative or disciplinary action against him. The IA ordered that the equivalent of ten annual leave days be deducted from the grievor's pay.
The Board noted that the entitlement to annual leave is calculated based on a member's prior qualifying service in accordance with specific conditions and formulas. The data required for the calculation belongs to the CF. It is available through People Soft and the member's personnel record. The Board also noted that the leave calculation is done by specialists and found that the fact that those specialists made an error was sufficient to prove the complexity of the calculation. Contrary to the IA's finding, the Board concluded that the CF was responsible for the calculation, not the grievor.
Last, the Board noted that article 208.315 of the Queen's Regulations and Orders for the Canadian Forces (QR&O)- Forfeitures in respect of leave gives the Chief of the Defence Staff (CDS) discretion to impose or not impose a forfeiture of pay in cases where too much leave has been granted.
The Board determined that the grievor's case was one of the cases where the CDS should exercise his discretion and, to remedy the situation, the Board recommended that the CDS grant the grievor ten days special leave.
The Board recommended that the CDS allow the grievance.
Decision of Final Authority
The CDS partially agreed with the Board's findings and recommendation to allow the grievance and exercise his discretion to grant the 10 days of excess annual leave received. The CDS maintained that, in order to establish whether it was reasonable to request a repayment, it must first be determined whether the member was treated in accordance with current regulations and, if not, did that member suffer any harm. It is not a matter of determining who committed the administrative errors. Nevertheless, the CDS granted the grievor four days of special leave to compensate for the inconvenience.
The CDS partially agreed with the Board's systemic recommendation. He supports the fact that for late grievance submissions that are included in the mandatory categories set out in article 7.12 of the QR&O, the Director General Canadian Forces Grievance Authority (DGCFGA) does not have the authority to determine whether it is in the interest of justice to consider them. However, the CDS did not support the part of the recommendation that all grievances refused by the DGCFGA based on time limits, but which should have been referred to the Board pursuant to article 7.12, be reconsidered.
Land Duty Allowance
Board Findings and Recommendations
Since 2003, the grievor, a Regular Force member, has been posted to a particular unit. However, between 2006 and 2009, the grievor was assigned to an internal task belonging to a different unit.
In 2008, the new policy related to the Land Duty Allowance (LDA) was adopted retroactive to 1 April 2007. On 1 October 2008, the list of field units was published, and the grievor's unit was on the list. However, the unit where the grievor had been performing an internal task was not on the list, and the complainant was informed that he could not receive the LDA because he had been temporarily assigned to a unit that was not eligible for the LDA. The complainant filed a grievance against this decision.
The initial authority (IA), the Director General Compensation and Benefits (DGCB), firstly indicated that because the Compensation and Benefits Instructions (CBI) 205.33 Land Duty Allowance was a Treasury Board (TB) policy, a Canadian Forces (CF) member could not object to it through a grievance. This is in accordance with 7.01(1)(c) of The Queen's Regulations and Orders for the Canadian Forces (QR&O) Right to Grieve which stipulates that there is no right to grieve in respect to a matter or case prescribed by the Governor in Council in regulations.
Secondly, the IA concluded that, in accordance with CBI 205.33(6)(f), the complainant could not receive the LDA because he had been temporarily posted, for a period of over six months, to a unit that was not recognized as a field unit.
The Board pointed out that TB regulations are not regulations made by the Governor in Council. The Board also explained that QR&O 7.01(1)(c) does not prevent members from filing grievances against matters governed by regulations made by the Governor in Council. Rather, it enables the Governor in Council to make regulations excluding specific matters or cases from the grievance process. The Board concluded that there is no regulation made by the Governor in Council that excludes, from the grievance process, matters or cases governed by the CBI.
After examining the difference between attached posting and assignment to an internal task, the Board concluded that they do not have the same meaning and that CBI 205.33(6) only applies to attached postings; it does not eliminate eligibility for the LDA for members who are simply assigned to internal tasks from one unit to another, as long as the member is posted to a field unit. The Board therefore concluded that the complainant was entitled to the LDA for the entire period of his assignment.
Recommendation
The Board recommended that the Chief of the Defence Staff (CDS) allow the grievance.
Systemic recommendations
Right to grieve Regulations made by the Governor in Council
The Board recommended that the CDS inform the DGCB of his misinterpretation of QR&O 7.01(1)(c) in order to improve the effectiveness of the grievance process and standardize the interpretation of subsections 29(1) and (2) of the National Defence Act (NDA).
Eligibility to the LDA for members assigned to an internal task
The Board also recommended that the CDS order that eligibility for the LDA for members from the grievor's base, who belong to a field unit and who worked on an internal task for more than six months in another unit, be reviewed from 1 April 2007 onward in order to restore their entitlement to the LDA.
Decision of Final Authority
The CDS partially agreed with the Board's recommendations. The CDS agreed with the Board when it found that CBI 205.33(6) only applies to attached postings; it does not eliminate eligibility for the LDA for members who are simply assigned to internal tasks from one unit to another, as long as the member is posted to a field unit. The grievor is therefore entitled to the LDA for the entire period of his assignment. Lastly, the CDS agreed with the Board's systemic recommendation to order that eligibility for the LDA for members from the Valcartier base who belong to a field unit, who worked on an internal task for more than six months in another unit, be reviewed from 1 April 2007 onward in order to restore their entitlement to the LDA.
However, the CDS did not follow the systemic recommendation to inform the DGCB of his misinterpretation of QR&O 7.01(1)(c) on the ground that since the IA was included in the distribution list for the decision, he was automatically informed.
Promotion cancellation
Board Findings and Recommendations
Two weeks prior to the change of strength date, messages were issued that posted the grievor to a new geographic location and authorized a promotion to the rank of Sergeant (Sgt). The promotion was stated to be subject to the condition that the grievor actually carry out the responsibilities of the new rank. Four days prior to the authorized effective date, the grievor's Commanding Officer formally approved the promotion and presented the grievor with his new rank. As a result of the grievor requesting his release, also prior to the authorized promotion date, messages were issued cancelling the posting and the promotion. The grievor was required to take down the new rank. Subsequently, a new message was issued "cancelling the cancellation" of the promotion and stating that the cancellation of the promotion was on hold pending an administrative review (AR). The grievor's unit interpreted this to mean that the promotion was back on, subject to cancellation following the AR, and so again presented the grievor with his new rank.
Subsequently, and after the original authorized promotion date, the AR was completed and a message was issued again cancelling the grievor's promotion. The reason given in this second cancellation message was that the grievor failed to meet the condition imposed on the promotion in that he failed to actually carry out the responsibilities of the new rank.
The grievor contended that he did carry out the duties of a Sgt given that he replaced the Section Sgt at his old location for a period of 10 days. The grievor further contended that the failure to disclose to him the AR documentation and allow him to make representation to the decision maker constituted a breach of procedural fairness as set out in the AR policy.
As redress, the grievor requested that his rank on release be restored to Sgt with all associated benefits and pay entitlements, including severance pay.
The initial authority (IA), the Director General Military Careers (DGMC) denied redress. In his decision, the IA indicated, among other things, that "by asking to be released before [the grievor] undertook the new duties, [he] eliminated any reason to post and promote [him]" and that "[his] reversion to Master Corporal was in accordance with policy and completely justified".
A Director General Canadian Forces Grievance Authority (DGCFGA) analyst took a different position. The DGCFGA analyst concluded that the "cancellation of the cancellation" was misinterpreted by the grievor's unit and that "the promotion cancellation was merely on hold while the situation was being evaluated". The Board inferred that the DGCFGA analyst found that the grievor had never, in fact, been promoted.
The Board found that the grievor's promotion presentation four days prior to the authorized promotion date could not stand because the promotion was properly cancelled prior to the effective date. However, the Board considered that the "cancellation of the cancellation" message did set aside the cancellation of the promotion and found that the grievor was, in fact, on the second presentation, promoted to Sgt, effective on the original authorized promotion date.
The Board found that the failure to disclose the AR documentation to permit the grievor to make representation constituted a serious breach of procedural fairness which resulted in the rank cancellation, reversion, of no force or effect.
The Board recommended that the grievance be upheld and the grievor's promotion be reinstated with effect on the original authorized promotion date.
Decision of Final Authority
The Chief of the Defence Staff (CDS) agreed with the Board's findings and recommendation to grant the grievance.
Statistics
Category of grievances received since 2008
Data as of June 30, 2011
[Long description of Category of grievances received since 2008 chart]
Findings and Recommendations (F&R) rendered in 2011
64 cases as of June 30, 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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