eBULLETIN - January 2012
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Land Force Command Physical Fitness Standard
Despite failing the test, the grievor contended that he should receive a pass mark on the Land Force Command Physical Fitness Standard evaluation, be promoted retroactively to warrant officer, and transferred as previously planned.
Relinquishment of Rank for Military Training Plan Candidates
The grievor contested the retroactive reversion in rank effective the date he started his Military Plan training and the recovery of the overpayment, arguing that he had reached an agreement that he would retain his higher rank during his training and revert to the lower rank on transfer, without a reduction in pay.
After being informed that she was no longer entitled to family care assistance because her oldest daughter had turned 18 years old, the grievor argued that her 18-year-old daughter was still attending school on a full-time basis, held a part-time job, and that caring for her younger sister would be placing her schooling and job in jeopardy.
Case summaries
Land Force Command Physical Fitness Standard
Board Findings and Recommendations
The grievor failed the Land Force Command Physical Fitness Standard (LFCPFS) evaluation. As a result, he received initial counselling (IC) and his promotion to the rank of warrant officer (WO), as well as his assignment to a position requiring that rank, which were scheduled for a few months later, were cancelled.
The grievor submitted a grievance challenging the test result, stating that he had gone to considerable effort to succeed and that his failure was due to numerous departures from the instructions on the day of the test. He asked that the result be changed to a pass, that he be promoted to WO retroactively and transferred as previously planned.
The initial authority (IA) rejected the grievance. The IA concluded that the conditions in place at the time of the test were on the whole reasonable, appropriate and in keeping with the spirit of the standard. According to the IA, the limiting factors described by the grievor had only a marginal impact and were not enough to justify the failure.
In its review, the Board found that many of the mandatory and essential conditions of the LFCPFS evaluation set out in the regulations in effect at the time had not been met. The Board also noted that Defence Administrative Order and Directive (DAOD) 5023-2 - Physical Fitness Program – requires that the commanding officer (CO) examine the circumstances in the case of a failure to determine the reasons and to determine whether remedial measures are necessary. This directive stipulates that the CO must take remedial measures unless he concludes that the CF member failed for reasons beyond his control.
The Board was of the opinion that the grievor could not be given a pass mark for a test he had failed; however, the Board was also of the opinion that the failure to meet the LFCPFS’s procedural conditions cast doubt on the integrity of the evaluation. Under the circumstances, the Board concluded that the failure was due to reasons beyond the grievor’s control and that the CO’s decision to administer an IC was not reasonable.
The Board noted that, three months after he failed the LFCPFS, the grievor had also failed the EXPRES test, which he finally passed after a second attempt. Therefore, he had then been promoted to WO and transferred at that time. The Board was of the opinion that the failure on the EXPRES test in June 2010 was due solely to the grievor and that, as a result, he deserved an IC, as required by DAOD 5023-2.
The Board recommended that the Chief of Defence Staff (CDS) reject the grievance.
The Board recommended that the CDS order that the IC the grievor initially received be cancelled and replaced with another IC dated three months later because of the failure on the EXPRES test.
Decision of Final Authority
Pending.
Relinquishment of Rank for Military Training Plan Candidates
Board Findings and Recommendations
The grievor, a Major (Maj) was accepted for subsidized education in a Military Training Plan (M Plan) under Canadian Forces Administrative Order 9-62 which required senior officers to voluntarily revert to the rank of Captain (Capt) before training began. The grievor would retain his Military Occupation Specification Identification (MOSID) until qualified to serve in the new MOSID. Some 26 months after commencing training, it was realized by Canadian Forces (CF) authorities that the grievor had not been reverted in rank. Consequently, he was retroactively reverted in rank to Capt effective the date he started his M Plan training and subjected to recovery of the overpayment.
The grievor contested the reversion, arguing that he had reached an agreement with the new MOSID advisor and the M Plan administrators that he would retain his Maj rank during his training and revert to Capt on transfer to the new MOSID, without a reduction in pay.
There was no initial authority decision.
The Board found that the relinquishment of rank, as required by the M Plan policy, is not a Treasury Board requirement, and that, in accordance with Queen’s Regulations and Orders article 11.12, relinquishment can only occur when a CF member requests it and permission is granted by an appropriate authority: the Minister of National Defence, the Chief of the Defence Staff (CDS) or a designated Assistant Deputy Minister.
The Board also found that the CDS had not delegated his approval authority and that the grievor’s reversion in rank could not stand because:
- the grievor did not actually request to relinquish his rank; and
- neither the Chief of Military Personnel nor his staff had the necessary authority to approve such a request to relinquish rank, even if there had been one in this case.
Given that the retroactive reversion could not stand, the Board recommended that the CDS uphold the grievance, declare the grievor’s reversion to Capt to be null and void, and direct that his pay as a Maj be restored for the M Plan training period.
The Board also recommended that the CDS direct that a formal process be put in place for senior officer M Plan candidates to request permission to relinquish their rank and for the CDS to approve or deny it, in order to conform to regulations.
The Board considered that it would be appropriate for the CDS to direct a review of former senior officer M Plan candidates and, where relinquishment is found not to have occurred in accordance with regulations, direct that they be paid according to their substantive rank.
Decision of Final Authority
Pending.
Family Care Assistance
Board Findings and Recommendations
A few days into a tasking away from her home unit, the grievor, a single parent with two dependent children, was informed she was no longer entitled to family care assistance (FCA) because her oldest daughter had turned 18 years old. In the circumstances, the grievor's chain of command ceased her tasking and authorized her early return home.
In her grievance, the grievor argued her 18-year-old daughter was still attending school on a full-time basis, held a part-time job, and that caring for her younger sister would be placing her schooling and job in jeopardy. The grievor stated she was financially responsible for both her daughters regardless of their age since both were attending school on a full-time basis. She added that as the result of the denial of FCA, she had incurred childcare expenses in the amount of $300.00. As redress, she requested she be reimbursed that amount. The grievor also requested that Compensation Benefits and Instructions (CBI) article 209.335 be amended to allow FCA for dependent children if an 18-year-old sibling who resides with the member is attending school full-time.
The file was referred to the Board without the benefit of an initial authority (IA) decision as the grievor did not grant the IA an extension to the 60-day time limit allowed for a decision.
The Board reviewed CBI 209.335 - Family Care Assistance - and noted that it applies to an officer or non-commissioned member of the Regular Force who has a dependant who is less than 18 years of age; the Board also noted that paragraph 7 of CBI 209.335 adds a limitation in that a member is not entitled to be reimbursed for childcare expenses if a person who is 18 years of age or older is normally resident with the member, unless that person suffers from a physical or mental disability and is incapable of providing childcare or attendant care.
In the circumstances, the Board found that the applicable policy was followed and that the grievor was not entitled to FCA for her younger child because of her oldest daughter's age.
The Board also reviewed the travel directives of the National Joint Council (NJC) of the Public Service of Canada and of the Royal Canadian Mounted Police (RCMP) and found that both included an individual 18 years or older who is in attendance full-time at an educational institution in their definition of dependant while the Canadian Forces (CF) policy does not consider this as part of its criteria. Furthermore, the Board noted that individuals who fall under the NJC and RCMP policies who found themselves in the same circumstances as the grievor would have been reimbursed for dependant care for the younger child.
The Board found that it is unreasonable to expect an 18-year-old full-time student, who is also employed, to care for younger siblings for an extended period of time, as well as unfair and unreasonable for the CF not to reimburse a CF member for his childcare or attendant care services for younger children, because an 18-year-old resides with him or her.
The Board recommended that the Chief of the Defence Staff (CDS) deny the grievance.
While unfortunate that any future policy changes will not affect the case at hand, the Board recommended to the CDS that the CF prepare a submission for Treasury Board regarding the CBI dispositions in order to reflect than an 18-year-old attending an educational institution full-time be included in the definition of “dependant.” The Board also recommended to the CDS that the submission include changes to the regulation in order to reflect CF members' entitlement to childcare services reimbursement, despite an 18-year-old residing with them.
Decision of Final Authority
Pending.
Statistics
Category of grievances received since 2009
Data as of December 31, 2011
[Long description of Category of grievances received since 2009 chart]
Findings and Recommendations (F&R) rendered in 2011
134 cases as of December 31, 2011
[Long description of Findings and Recommendations (F&R) rendered in 2011 chart]
Decisions rendered by the CDS
123 received between January 1, 2011 and December 31, 2011
[Long description of Decisions rendered by the CDS chart]
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