CFGB February 2010 eBulletin

Ranking of Task Force Afghanistan Rotation

Board Findings and Recommendations

The grievor, a Sergeant (Sgt) on a five-year leave of absence from the Public Service (PS), was on a period of Class B Reserve Service (Cl B svc) due to end on 31 March 2008. In late 2007 he applied for an operational position on Task Force Afghanistan Rotation 1 of 2008 (TFA 1-08); this position would be Class C (Cl C) svc. The position was advertised as a high/low rank of Sgt/Master Corporal (MCpl). The grievor was the only applicant and was accepted at the rank of Sgt. As a result of this acceptance, the grievor did not reapply for the full-time Cl B svc position he was then occupying nor did he attempt to return to the PS.

Four days before he was due to depart for pre-deployment training, the grievor was advised that the rank for the TFA 1-08 position had been reduced to a high/low of MCpl/MCpl. At this point his PS position had been filled as had the Cl B position he had occupied. The grievor explained that he only agreed to the terms of the down-ranked position because not to do so would have led to foreclosure of his home due to a lack of income to pay the mortgage. As the grievor's Cl C svc had not yet been formally authorized, he proceeded on pre-deployment training on Cl B svc at his substantive rank of Sgt. Some 38 days later his Cl C was authorized at the rank of MCpl, retroactive to his day of departure from his home unit.

As redress, the grievor requested that his TFA 1-08 position be amended to the rank of Sgt or that he be given priority to fill another TFA 1-08 Sgt position.

The initial authority (IA) disagreed with the grievor's conclusion that he had been demoted with a loss of salary and privileges and denied redress. The IA added that the grievor could have declined the position at any time during the 42 days between notification of the rank change and the Cl C svc authorization.

Prior to being referred to the Board, the grievance was reviewed by the Director General Canadian Forces Grievance Authority (DGCFGA). In a synopsis prepared by a member of the DGCFGA staff, the recommendation was to deny the grievance because the grievor had 42 days between notification and the Cl C authorization to seek another position and, ultimately, chose to accept the MCpl position.

The Board did not dispute the facts or timeline involved or the technical correctness of the IA and DGCFGA staff positions. However, the Board took the view that this case was not about a legal or policy question; rather it was a case of doing the right thing for this grievor under his particular circumstances.

The Board found that the notice of the position/rank change provided to the grievor was neither reasonable nor sufficient in the circumstances to allow the member to reconsider his employment with TFA 1-08; nor was it compatible with CF values.

The Board found that the grievor's circumstances met the requirements of Cl C svc employment policy to be over-ranked as a Sgt in the position he held on TFA 1-08 and that the Chief of the Defence Staff (CDS) also had the discretion to unilaterally direct that the grievor's TFA 1-08 position be over-ranked based on the findings in this case.

On another issue, the Board noted that Queen's Regulations and Orders 9.08 provides that Cl C svc on an operation includes travel to and the actual pre-deployment training. Further, Chief of Military Personnel Instruction 20/04 (Administration of Cl A, B and C svc) requires that Cl C svc not be commenced until after it is formally agreed to by the member and an authority message issued. It also provides that Cl C svc is not to be authorized retroactively unless there has been an error. Yet, in this case, the grievor proceeded to the pre-deployment training on Cl B svc and the Cl C svc was authorized retroactively by 38 days.

The compensation and benefit package differs for reservists on Cl B and Cl C svc. The largest differential is in the case of death where the reservist on Cl C svc participates in the Supplementary Death Benefit of 24 month's pay, non-taxable whereas the reservist on Cl B is covered by the Death Gratuity – Reserve Force at 20 month's pay, taxable. Although not quantified in this case, the Board considered that with the existing marginal tax rates, the spouse of a Cl B reservist would receive significantly less than their Cl C member counterpart.

Although this is a single case, the Board considered the issue serious enough to bring to the attention of the CDS in order that he could ensure that future Cl C svc for operations is properly administered and authorized in accordance with regulations and policy.

The Board recommended that the grievance be upheld and the CDS direct that the grievor be over-ranked in the TFA 1-08 position at his substantive rank of Sgt effective the date he traveled to the location of his pre-deployment training for the duration of his Cl C svc.

Decision of Final Authority

The FA agreed with the Board's finding and recommendation to uphold the grievance. He directed that the grievor's rank be changed for his Cl C employment for TFA 1-08 from MCpl to Sgt, including the pre-deployment period, that the MPRR be amended, as well as his pay and benefits as a result of these changes. Following the grievor's amended redress, the FA directed that the grievor be re-awarded his General Campaign Star to reflect the rank of Sgt.