Case # 2010-022

Overpayment, Pay, Right to grieve, Right to grieve – Regulations made by the Governor in Council, Transfer from Reserve Force to Regular Force

Case Summary

F&R Date: 2010-06-10

Upon his transfer to the Regular Force (Reg F), the Canadian Forces Recruiting Centre informed the grievor that he would retain his rank.

A number of Enrolment Transfer Posting (ETP) instruction messages were promulgated but all contained errors as to the grievor’s rank and pay scale. A few years later, an audit revealed that the grievor had improperly been paid a pilot’s salary from his date of transfer up to his being actually qualified as a pilot.

It was also determined that the grievor was to reimburse the amount he had received in overpayment. At the time the grievance was submitted, the Canadian Forces (CF) was in the process of recovering this money through monthly pay deductions.

The grievor argued that the error was committed during his recruiting, that he sought clarification as he wasn’t sure that the pay scale indicated in the ETP message was applicable to him. Furthermore, he argued that the Canadian Forces Recruiting Group had confirmed that the information was accurate.

As a result, he requested to be exempted from having to reimburse the overpayment. In his opinion, the CF should be responsible for errors committed by their employees.

The initial authority (IA) determined that there was no right to grieve in respect of: a matter or case prescribed by the Governor in Council (GIC) in regulations; that the grievor did not show that he had been personally aggrieved; and that it was not within his authority to write off a debt.

With regards to the GIC regulations, the Board found that the phraseology used in section 29(1) of the National Defence Act, repeated in Queen’s Regulations and Orders (QR&O) paragraph 7.01(1), requires that “a matter or case” be specifically proscribed in regulation in order to disentitle a member from the use of the grievance process. This was not the case with the Compensation Benefits Instructions concerning pay, nor recovery of overpayment.

As for the argument that the grievor did not show that he had been personally aggrieved, the Board found that a grievor did not need to demonstrate that he or she was treated differently than other CF members in similar situations. In fact, the Chief of the Defence Staff agreed with the Board in another file and found that QR&O paragraph 7.01 (1) centers on a CF member's belief that he or she has been aggrieved, and not specifically on what a member may or may not have received in accordance with a policy in relation to others in the same or similar situations.

The Board agreed with the IA regarding his inability to write off debts. With regards to the grievor’s request to be exempted from having to reimburse the overpayment, the Board stated that he was not persuaded on a balance of probabilities that the grievor was induced to transfer to the Reg F by a promise of a specific pay scale. Presumably, the grievor would not have transferred had he been dissatisfied with the rank/pay authorized in his first ETP message.

In conclusion, the Board found that the pilot pay was authorized in error and, the grievor should reimburse the overpayment. He pointed out that “the policies and regulations relating to overpayments are clear: overpayments of salary and allowances made to serving members constitute a debt to the Crown and the CF is legally obligated to recover. In addition, the fact that some overpayments are a consequence of administrative errors does not affect the statutory obligation of the CF to recover and the regulations do not allow an exemption on these grounds.”

The Board recommended that the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2010-11-26

The CDS agreed with the Board's findings and its recommendation to deny the grievance. The CDS added that his decision will serve as guidance to the DGCB, with respect to the interpretation of QR&O article 7.01 in the handling of grievances and to the CFRG to exercice better diligence in the administration of transfers into the pilot occupation.