Case # 2009-067

Discrimination, Grievance Submitted to CDS Outside the Time Limit (QR&O 7.10), Grievance Submitted to the IA Outside the Time Limit (QR&O 7.02), Occupational transfer (OT), Pay and Benefits, Remuster, Right to grieve, Specialist Pay, Wage parity

Case Summary

F&R Date: 2010-01-20

The grievor contested the fact that, following changes in Canadian Forces (CF) policies, he was not receiving military police specialist pay after his reclassification in this military occupation (MOC) even though some of his colleagues with the same qualification level (QL3) were. Following the implementation of a new specialist pay structure, conditions were added for some MOCs to receive the specialist pay. From then on, military police officers had to obtain qualification level 5 (QL5). Military police officers who were already receiving this specialist pay retained their right to receive it, even if they did not have QL5. The grievor alleged that this policy was discriminatory. He also said that he performed the same tasks as his colleagues who had QL5.

The Director General Compensation and Benefits (DGCB), acting as Initial Authority (IA), rejected the grievor’s request on the grounds that the grievance was not valid. The IA said that the grievor had not been discriminated against by the CF since he “had been treated the same as anyone else in the same situation.” The IA suggested that the grievor send his comments concerning the requirements for this MOC to his chain of command.

After determining that it was in the interest of justice to examine the grievance despite its late submission, the Board examined the grievance from two perspectives. First, the Board found that the fact that the policy gave differential treatment to equal skills was not discriminatory since it was legitimate for military police officers who were receiving the specialist pay before the new structure came into effect to preserve that entitlement.

Second, the Board examined the qualification levels and identified a number of tasks that the grievor could not perform without obtaining the QL5. The Board indicated that it was possible and even normal that some military police officers with their QL5 be assigned the same tasks as the grievor. The Board noted that these military police officers could be assigned to more tasks that require less supervision. As a result, the Board concluded that the decision to grant the specialist pay to military police officers when they attain QL5 is justified and does not constitute discrimination.

The Board concluded by saying that it did not agree with the IA’s opinion that the grievance was not valid. Indeed, the Board indicated that, under the National Defence Act (NDA), the fact that a CF member objects to the validity of a policy does not render the grievance invalid. In the Board's opinion, the fact that the grievor had been personally affected by this policy was sufficient reason to conclude that his grievance was valid. The Board therefore recommended that the Chief of the Defence Staff (CDS) insure that DGCB harmonize its interpretation of paragraph 29(1) of the NDA with that accepted and used by the Final Authority.

The Board recommended that the CDS deny the grievance.

CDS Decision Summary

CDS Decision Date: 2010-07-12

The CDS is in agreement with the Board’s findings and its recommendation to deny the grievance. Although he agrees with the Board on the erroneous interpretation of Subsection 29(1) of the NDA by DGCB, the CDS is satisfied that by being part of the distribution list of the decision, DGCB will have the information required to bring its interpretation of this provision into line with that adopted by the final authority. Therefore, he did not support the Board’s recommendation in this regard.