eBULLETIN - October 2011
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Based on a promise made by his chain of command, the grievor contended that the Civilian Dress Assistance Allowance should be paid to him retroactively, for the period of time when he was posted to the Deployment Support Group.
Entitlement to Posting Allowance
The grievor contested the fact that he did not receive the posting allowance after having completed a component transfer from the Reserve Force to the Regular Force.
Loss of operational allowances
The grievor, who was deployed to Afghanistan, became ill while he was in Canada on leave. He was medically repatriated and the Task Force Commander determined that he was ineligible for the allowance for loss of operational allowances. The grievor contended that, as he was in good health when he left for Afghanistan, it was likely that he contacted the bacterium responsible for his illness over there, and he should, therefore, be eligible for the said allowance.
Case summaries
Civilian Dress Assistance
Board Findings and Recommendations
From 2001 to 2008, the grievor was posted to the Deployment Support Group (DSG) where the chain of command required personnel to wear civilian dress. Upon arrival, his superior informed him that the chain of command had submitted a request for DSG personnel to receive the Civilian Dress Assistance Allowance (CDAA), which was known as the Civilian Clothing Allowance (CCA). At the time, the grievor's superiors assured him that the CDAA would be paid to him retroactively. The unit Commanding Officer sent a request to this effect to the Director General Land Staff in 2005. In 2008, the Chief of the Land Staff (CLS) refused the request, on the grounds that the policies issued in 2007 did not allow positions within DSG to be designated for payment of the CDAA. Furthermore, the CLS ordered that all personnel of DSG wear uniform dress. The grievor contested this decision and asked for retroactive payment of the CDAA as promised by his chain of command.
After reviewing Article 205.57 of the Compensation and Benefits Instructions (CBI), including Table A and related information, the acting Director General Compensation and Benefits (DGCB) refused the grievor's request. The acting DGCB endorsed the CLS's decision, explaining that the CBIs published in 2007 did not allow for payment of the CDAA to the grievor.
Although it agreed with the acting DGCB's interpretation of the 2007 CBIs, the Board reviewed the policies that applied from 2001 to 2008. It found that the 2001 and 2004 CBIs gave the Minister of National Defence discretion to designate positions eligible for payment of the CDAA. Since the chain of command had clearly ordered DSG personnel to wear civilian dress, the Board recommended that the Chief of the Defence Staff (CDS) take the appropriate action vis-à-vis the Minister to have the latter designate the grievor's position for the purpose of the CDAA at the published rates from 2001 to 2007.
Should the Minister refuse to designate the grievor's position for service from 2001 to 2007, the Board recommended that the grievor's file be sent to the Director Claims and Civil Litigation (DCCL) in order to study the possibility of awarding compensation to the grievor, including the period from 2007 to 2008 for which the Minister does not have authority to designate positions for purposes of the CDAA.
The Board also made a systemic recommendation because the evidence in the case revealed that the grievor's situation was not unique. In fact, the majority of DSG personnel wore civilian dress. Consequently, the Board recommended that the CDS review the overall situation within DSG.
Decision of Final Authority
The CDS disagreed with the Board's recommendation. The CDS was of the opinion that the grievor's DSG unit did not meet the criteria for obtaining the CDAA. Given that the grievor had no option but to obey a legitimate order to wear civilian attire, the grievor thereby suffered an injury, as he incurred expenses in purchasing the clothing, but the only recourse available to the grievor is to appeal to the DCCL. Indeed, the CDS did not support the corrective measure advocated by the Board, that is, to request that the Minister retroactively designate the grievor's position so as to grant the CDAA, as the requirements of the policies in force were not met. The CDS did not agree with the Board's systemic recommendation that the situation of the DSG, as regards the CDAA, be examined.
Entitlement to Posting Allowance
Board Findings and Recommendations
The grievor contested the fact that he did not receive the posting allowance (PA) after having completed a component transfer (CT) from the Reserve Force to the Regular Force (Reg F). The grievor was immediately posted to a new place of duty following his CT and was granted all the benefits and allowances associated with his move with the exception of the PA.
The grievor argued that the purpose of the PA was to compensate members for the turbulence associated with relocating and his move was just as turbulent as that of any other Reg F member and perhaps even more turbulent since he was deployed during the preparation for his move.
An analyst from the Director General Canadian Forces Grievance Authority (DGCFGA) provided a synopsis on the file which concluded that the grievor was not entitled to the PA. The analyst relied on an exclusion found in Compensation and Benefits Instruction (CBI) 205.42 that limited the payment of a PA when the posting is to the first place of duty where the member will be employed after re-enrolment or transfer to the Reg F. The same provision is found in the Canadian Forces Integrated Relocation Program (CF IRP).
There was no initial authority decision on this file.
The Board found that the CBI applied directly to the grievor's situation and that he was not entitled to a PA on his first Reg F posting after his CT. However, the Board agreed with the grievor that the turbulence associated with his move was no different than that experienced by any other Canadian Forces (CF) member. As such, the Board found that it would be appropriate for the CF to make representations to ensure that members in the grievor's situation are considered in the next policy review.
The Board recommended that the Chief of the Defence Staff (CDS) deny the grievance. The Board also provided a systemic recommendation that the CDS direct the Director General Compensation and Benefits (DGCB) to conduct a review of the CBI and CF IRP provisions as they pertain to PA on CT or re-enrolment.
Decision of Final Authority
The CDS agreed with the Board's findings and recommendation that the grievance be denied. Since the grievor's move was indistinguishable from any member of the Reg F who is moved from one location to another without a break in full-time service, and that the turbulence associated with such moves would be identical, the CDS agreed with the Board's systemic recommendation that the DGCB conduct a review of the CBI and CF IRP provisions as they pertain to PA on CT or re-enrollment.
Loss of operational allowances
Board Findings and Recommendations
The grievor, who was deployed to Afghanistan, became ill while he was in Canada on leave. He was ultimately diagnosed with a bacterial infection and was deemed unfit to return to Afghanistan. As a result, he was medically repatriated and the Task Force Commander (TF Comd) determined that he was ineligible for the allowance for loss of operational allowances (ALOA).
The grievor submitted a grievance arguing that, as he was fit when he left for Afghanistan, it was likely that he contacted the bacterium over there and he should therefore be eligible for ALOA.
The Head, Medical Policy and Standards (Med Pol & Stds) agreed that it was likely that the grievor contacted the bacterium in Afghanistan, but then concluded that his illness could not be reasonably linked to the conditions of the deployment and the grievor therefore did not meet the definition of "military casualty" to be eligible for ALOA. The initial authority relied on the opinion of the Head, Med Pol & Stds to deny the grievance.
In reviewing the specifics of the particular bacterium, along with the specific living conditions the grievor was under during his time in Afghanistan, the nature of his work, and the acknowledgement by Head, Med Pol & Stds, the Board concluded that it was likely the grievor contacted the bacterium in Afghanistan. As to it being reasonably linked to the conditions of deployment, the Board relied on the "Proximity Test" in Frye v. Canada to make a determination that the member became ill as a direct result of the conditions of his deployment.
The Board found that the grievor met the definition of military casualty and should therefore have been entitled to ALOA. The Board recommended that the grievance be upheld.
Decision of Final Authority
The Chief of the Defence Staff (CDS) agreed with the Board's findings and recommendation to uplhold the grievance. According to the clarification received from Treasury Board (TB), the definition of ''military casuality'' is broader than what could be depicted from CBI 205.536. Consequently, the CDS agreed with the Board's systemic recommendation that the process for administering ALOA be reviewed, and he instructed the Director General Compensation and Benefits (DGCB) to conduct the review.
Statistics
Category of grievances received since 2009
Data as of September 30, 2011
[Long description of Category of grievances received since 2009 chart]
Findings and Recommendations (F&R) rendered in 2011
100 cases as of September 30, 2011
[Long description of Findings and Recommendations (F&R) rendered in 2011 chart]
Decisions rendered by the CDS
99 received between January 1, 2011 and September 30, 2011
[Long description of Decisions rendered by the CDS chart]
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