eBULLETIN - April 2012
Contents
See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.
Highlights
Post Living Differential and Transitional Post Living Differential Policies
The grievor contended that it was unfair to deny him the Transitional Post Living Differential (TPLD) benefit based solely on the fact that he had been posted to the National Capital Region (NCR) after 1 April 2008, while other CF members, posted to the NCR before this date, continued to receive TPLD.
Acting while so Employed Promotion
The grievor, a newly promoted Sergeant, was posted into a Warrant Officer’s (WO) position for a three-year tour. He contended that his request for a promotion to acting while so employed WO, prior to his change of strength date, should have been granted.
Isolated Post Related Benefits
The grievor argued that he should have received the same benefits and compensation as other CF members, attached-posted to the same isolated post.
Case summaries
Post Living Differential and Transitional Post Living Differential Policies
Board Findings and Recommendations
As a result of a number of changes to the Post Living Differential (PLD) and Transitional PLD (TPLD) policies, CF members posted to the National Capital Region (NCR) before 1 April 2008 continue to receive TPLD, while those members posted after that date do not receive this benefit. This was due, in part, to a delay in implementing the phase-out of the PLD benefit altogether, as initially contemplated, and the subsequent freeze of TPLD rates.
The grievor was posted to the NCR after 1 April 2008 and therefore did not receive TPLD. Once it became clear that the discrepancy between his situation and that of members posted before 1 April 2008 would be extended, he submitted a grievance. He contended that it was unfair to continue to deny him TPLD based on a posting date, stating that the cost of living in the NCR was the same for everyone.
The initial authority (IA) stated that the Department of National Defence (DND) did not have the authority to change the TPLD effective date because it was fixed by Treasury Board (TB) regulations. Consequently, the IA denied the grievance.
The Board confirmed that, in a decision letter sent by TB to DND, TB had authorized the freeze of TPLD rates, which the CF communicated through a series of annual CANFORGENs. However, the applicable Compensation and Benefits Instruction (CBI) was not fully amended to reflect the freeze of TPLD rates. The Board concluded that the CF is obliged to respect the regulatory rules for announcing changes to a regulation. The Board found that when policy changes such as those made to the PLD/TPLD entitlement are approved by TB, the CBI should be amended to reflect those changes.
The Board found that, according to policy, the grievor was not entitled to receive TPLD. However, the Board also noted the inherent unfairness that some members continue to receive the benefit and others do not. The Board also pointed out that this unfairness is not limited to the NCR; other TPLD areas are affected in the same way.
The Board recommended the Chief of the Defence Staff (CDS) deny the grievance. The Board also made a systemic recommendation that the CDS direct a review of the TPLD concept to determine whether it will be fully implemented or not so as to restore fairness by providing equal benefits to all CF members posted to the same areas.
Final Authority Decision
The CDS agreed with the Board's findings and its recommendation to deny the grievance. The CDS agreed with the Board's systemic recommendation that he direct a review of the TPLD concept. The CDS was satisfied that the Director General Compensation and Benefits was currently reviewing this issue with TB. Nonetheless, in an attempt to expedite this process, the CDS directed that the Chief Military Personnel liaise with them to verify the current status of TPLD, with a view to determining its future and to restore equality among those affected.
Acting while so Employed Promotion
Board Findings and Recommendations
The grievor, a newly promoted Sergeant (Sgt), was posted into a Warrant Officer’s (WO) position for a three-year tour. Prior to his change of strength date he asked about the possibility of a promotion to acting while so employed (AWSE) WO. The grievor’s career manager (CM) did not support the request, indicating that holding the rank of WO was not essential to the position, that the grievor lacked sufficient time in rank for entry into the promotion zone (EPZ) and, finally, that a promotion would exceed the WO preferred manning level (PML).
There was no initial authority decision because the grievor refused to grant a further extension of time.
The Board examined the file, taking into account the requirements of the applicable policy, CANFORGEN 060/00 – Acting Pay/Rank effective June 2000, as well as previous grievance decisions regarding similar issues, and found that:
- the rank of WO was required for the position;
- an AWSE promotion would not cause the PML to be exceeded;
- the grievor met the requirement to be posted for a normal tour of duty and the position was empty, therefore, he lacked only two criteria to be eligible for an AWSE promotion: the EPZ date and the Intermediate Leadership Qualification (ILQ); and
- the awarding of an AWSE promotion to WO would be an appropriate use of the Chief of the Defence Staff's (CDS) discretion in this case because the CDS has granted waivers to the EPZ date and the ILQ in previous cases where the exercise of his discretion was merited.
The Board recommended that the CDS uphold the grievance and that he:
- waive the EPZ date and ILQ criteria;
- grant the member an AWSE promotion to the rank of WO for the three-year period he occupied the WO position;
- direct that the personnel evaluation reports affected by the AWSE promotion be amended to reflect the AWSE promotion; and
- direct that a review be performed to determine if a supplementary selection board is required.
The Board observed that the grievor appeared to not be the only Sgt posted into this WO position underranked and suggested that it would be appropriate and within the CDS’s authority to direct that the files of the grievor’s predecessor and successor, both Sgts, be reviewed.
Final Authority Decision
The final authority (FA) agreed with the Board's findings and recommendation to grant the grievance by waiving the AWSE promotion requirements.
The FA found that this WO position continues to be manned with members who hold the rank of Sgt and, therefore, this issue was brought to the attention of the Chief Military Personnel such that the proper rank and manning requirements for the position be reviewed.
Isolated Post Related Benefits
Board Findings and Recommendations
The grievor agreed to serve at an isolated post on temporary duty (TD), and signed a letter of understanding to the effect that he would have no claim or entitlement to benefits outside of those related to his employment on TD while awaiting training. As a result, the grievor did not receive the same benefits and compensation that other members received who were attached-posted (att-posted) to the same isolated post. The grievor argued that he should have been compensated in the same manner as others serving in the same operational environment.
There was no initial authority decision on file as the Director General Compensation and Benefits was unable to respond within the time limit and the grievor did not agree to grant a second extension.
The Board found that entitlement to the additional benefits sought by the grievor required that he be att-posted. Therefore, the Board had to determine whether the grievor ought to have been att-posted to the isolated post. The Board reviewed the applicable policy and the intent of the Compensation and Benefits Instructions with regard to isolated posts, in addition to seeking the opinion of several subject matter experts.
The Board found that the grievor should have been att-posted to the isolated post, as the benefits in question were meant to compensate for harsh environmental conditions which applied to the grievor regardless of the means by which he was sent to the isolated post. The Board found that it would be unfair for the grievor to serve at the isolated post without comparable compensation.
Regarding the letter signed by the grievor, the Board found that the grievor was given no choice but to sign it. Further, as he was a new military member, the Board found that he could not have been expected to fully understand the impact of waiving his entitlements to certain benefits, and that it was unreasonable to have asked the grievor to sign the letter.
The Board recommended that the Chief of the Defence Staff uphold the grievance, that the grievor be retroactively att-posted to the isolated post for the applicable time, and that the grievor receive all the benefits that flow from being att-posted to the isolated post.
Final Authority Decision
The grievance was resolved informally.
Statistics
Category of grievances received since 2010
Data as of March 29, 2012
[Long description of Category of grievances received since 2010 chart]
Findings and Recommendations (F&R) rendered in 2012
28 cases as of March 29, 2012
[Long description of Findings and Recommendations (F&R) rendered in 2012 chart]
Decisions rendered by the CDS
25 received between January 1, 2012 and March 29, 2012
[Long description of Decisions rendered by the CDS chart]
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