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HighlightsActing While So Employed (AWSE)
The grievor, a Captain, contended that he was entitled to compensation for intermittent periods totalling 30 months during which he acted at the rank of Major.Class C Reserve Service - Pay and Benefits
The grievor contended that he was only paid for four days rather than the five he had worked on Class "C" Reserve Service.Pay and Benefits - Transfer from Reserve Force to Regular Force
The grievor, a non-commissioned member who effected a component transfer from the Reserve Force to the Regular Force, requested his file be reviewed to determine his eligibility for back pay.
Board Findings and Recommendations
The grievor, a Captain, submitted a grievance concerning the fact that he had acted in positions at the rank of Major (Maj) during intermittent periods totalling 30 months, and believed he was entitled to financial compensation.
The Director General Compensation and Benefits acted as the initial authority and denied the grievance based on the fact that the grievor did not satisfy all the requirements for an acting while so employed (AWSE) promotion, which he deemed was the only avenue to provide the requested financial compensation to the grievor.
The Board agreed that the only means of compensating the grievor was through the mechanism of acting rank and acknowledged that the grievor did not meet some of the criteria as set out in the applicable policy. The Board noted that, while all members at the rank of Lieutenant-Colonel and below receive compensation for acting at a higher rank as part of their pay package, it was not intended to cover lengthy periods of time, as was the case in this grievance. The Board noted that, as a result of another similar grievance, the Chief of the Defence Staff (CDS) requested, in 2003, that the acting rank policy be reviewed and a report provided to him. However, no apparent action had been taken.
The Board found that, for a portion of the time the grievor had acted in a Major position, and for which he requested compensation, he did not satisfy the requirement that a grievance must be submitted within a six-month timeframe from the date he knew, or ought reasonably to have known of being aggrieved in accordance with Queen's Regulations and Orders 7.02. The Board further found that, for a period totalling approximately seven and a half months, which fell within the six-month time limitation, the grievor should be retroactively promoted to Maj AWSE and compensated accordingly.
The Board also made a systemic recommendation that the CDS raise the issue of the acting rank policy again with the appropriate authorities with a view to providing a fair and coherent policy for all members.
Decision of Final Authority
The CDS agreed with the Board's findings and recommendation to partially upheld the grievance, by waiving the criteria for AWSE, which the grievor did not meet. The CDS was satisfied that the grievor's situation was unique and exceptional, given the time he was required to carry out the duties and responsibilities during a difficult period.
Board Findings and Recommendations
The grievor was employed on a period of Class "B" Reserve Service (Cl B svc) that had started on December 15, 2006. His duties required that he periodically conduct work-ups in ships and other operational units for which he was placed on Class "C" (Cl C) svc. He was placed on Cl C svc for the five-day period July 28 to August 1, 2008. The grievor noticed that he had been paid less than if he had been on Cl B svc for the same period. He stated that he had received the full daily rate for August 1, 2008 but that deductions from his daily rate of pay for the other four days amounted to a full day's pay; in effect he was only paid for four days rather than the five he had worked.
The grievor explained that the Revised Pay System for the Reserves (RPSR) uses a 30-day pay rate to calculate the daily rate of pay for short periods of Cl C svc and there is no pay entitlement for the 31st day of a 31-day month. The grievor suggested that, for periods of Cl C svc of less than a full month, the daily rate should be pro-rated over the number of days in that month.
As redress, the grievor requested that his pay for the period of Cl C svc July 28 to August 1, 2008 be adjusted to reflect the shortfall of one-day's pay and that his pay records be audited from December 15, 2006 and that the RPSR be modified to prevent similar occurrences in the future.
The initial authority (IA), the Director General Compensation and Benefits (DGCB), denied redress. The DGCB explained that, in accordance with Queen's Regulations and Orders (QR&O) 203.06, all months are deemed to have 30 days for the purpose of administering the entitlement to pay and allowances. He added that while it is accepted that anomalies will always exist when administering a pay system based on a monthly entitlement, the model treats members in a similar manner and minimizes these anomalies. In the case of a month with 31 days where the Cl C svc begins after the mid-month pay is disbursed, the member is paid for the next period to the 30th day and there is no payment for the 31st day. The IA mentioned that this principle has been confirmed by the Department of National Defence's legal review services on three separate occasions throughout the years and is consistently applied within government. He also added, however, that the regulation will be reviewed with the future introduction of modifications to the pay system.
The Board disagreed with the DGCB that all months are deemed to have 30 days for the purpose of administering the entitlement to pay and allowances. The Board opined that the pay authorities and the DGCB had confused the entitlement to pay with the computation of its value. The Board's plain reading of QR&O 203.06 was that the regulation formed only the basis for computing the value of the daily rate but did not establish the entitlement, which falls under Compensation and Benefits Instruction 203.01.
The Board found that the grievor was entitled to be paid the full daily Cl C rate for all five days service, including July 31, 2008.
The Board observed that, in a previous case before it, the Board had found that this particular unit was an operational unit and its mandate and positions fall under "routine naval operations" as per the Chief of the Defence Staff (CDS) directive approving Cl C operations. In that case, the Board found that the member's period of service with that unit should have been designated Cl C svc in accordance with CF regulations and the CDS directive. The Board also found in that case that the member was entitled to the Cl C rate of pay for his period of service in that unit.
The Board recommended that the grievance be upheld, the grievor be paid for July 31, 2008 and that his pay records for the period from December 15, 2006 be audited for similar underpayments.
The Board recommended that the CDS direct that steps be taken to identify those members who may have been underpaid in similar circumstances and that corrective pay action be taken.
The Board recommended that the Reserve positions in the unit in question be examined with a view to designating them to be operational.
Decision of Final Authority
The CDS agreed with the Board's findings and its recommendation to grant the grievance; the grievor has to be paid for each day of service rendered. For the period of Class B service directly preceding and following the Class C service in question, the grievor will be paid the prescribed daily rate in accordance with CBI Chapter 204. For the period of Class C service of five days, the grievor will be paid a daily rate for each day, calculated on 1/30th of the monthly rate of pay as prescribed by QR&O 203.06. The CDS also directed the Chief of Military Personnel, in cooperation with the Chief of the Maritime Staff, to address this potential systemic issue and take the necessary steps to identify those members in similar circumstances who may have been underpaid and to take corrective pay action as required, as well as to find a solution to prevent these situations from occurring.
Board Findings and Recommendations
The grievor effected a component transfer (CT) as a non-commissioned member (NCM) from the Reserve Force (Res F) to the Regular Force (Reg F) as an officer through an officer entry program in June 2000. In August 2008, the grievor requested his file be reviewed to determine his eligibility for back pay in view of an interim instruction issued in April 2001 granting pay protection for NCMs transferring from the Res F to the Reg F as officers. In January 2009, the Canadian Forces Recruiting Group Headquarters (CFRG HQ) informed the grievor that consideration could only be given to members who had transferred subsequent to April 1, 2001. The grievor submitted a grievance on February 20, 2009 contesting the CFRG HQ response, indicating that his pay should have remained that of a Private instead of having been reduced to that of an Officer Cadet (OCdt). He requested back pay for the period April 1, 2001 to May 1, 2003.
As a preliminary issue, the Board was of the opinion that through his administrative request of August 2008 the grievor was trying to establish a link to his transfer conditions of June 2000 thereby establishing a right to grieve in arrears. The Board noted that by asking the CFRG HQ to review his transfer conditions, the grievor expected a response which he used as a basis for his grievance submission. The Board cited a Federal Court decision to the effect that a response to a letter from an applicant making further enquiries after a decision is rendered does not extend the date of that decision and found that the grievor's condition of transfer could not be reviewed on the basis of the CFRG HQ letter of January 2009.
According to Queen's Regulations and Orders article 7.02, a grievance must be submitted within six months after the day that the member knew or ought reasonably to have known of the decision, act or omission in respect of which the grievance is submitted. The grievor indicated that he had only become aware of the injustice in April 2008 when he spoke to another individual in similar circumstances who had received back pay. Although it acknowledged that the interim policy of April 2001 could not be used to establish the starting date to calculate the delay, the Board noted that Canadian Forces Military Personnel Instruction 09/05 of March 29, 2005 used a former service recognition process similar to that of the April 2001 letter and found that the grievor should have been alerted by its content as of the date of its announcement in Canadian Forces General Message 156/05 on October 7, 2005. Consequently, the Board found that the grievor's right to grieve extinguished on April 6, 2006. However, the Board found that the grievance constituted an arguable case based on previous decisions by the former Chief of the Defence Staff (CDS), and recommended that the CDS consider the merits of the grievance in the interests of justice.
The Board noted several other grievances concerning transfer conditions from the Res F to the Reg F prior to the introduction of the April 2001 interim policy in which, as recommended by the Board, the former CDS directed that the members be transferred from the Res F to the Reg F as NCMs prior to entering an officer entry plan. Despite the fact that the use of the officer entry plans in 2000 to CT the Res F NCM to the Reg F as OCdt did not allow flexibility regarding the rate of pay as they are set by regulations, the decision to direct how transfers from one component to another would be performed is part of the CDS authority to control and administer the CF as per paragraph 18(1) of the National Defence Act.
The Board recommended that the CDS uphold the grievance and order that the grievor's transfer from the Res F to the Reg F be effected as an NCM prior to entering the Regular Officer Training Plan.
Decision of Final Authority
The CDS agreed with the Board's findings and recommendations to uphold the grievance. Acknowledging that previous CDS decisions recognized the unfairness of the situation and corrected it, the CDS, based on the fact that this case was undistinguishable from the previous ones, concluded that the grievor did not receive recognition of his previous service in the Res F and as a result, he was treated inequitably when he took a component transfer into a Reg F officer entry plan. Therefore, the CDS directed that the Chief of Military Personnel (CMP) ensure that the grievor's file is reviewed and that his pay level as an Officer Cadet is modified to reflect his previous Res F service in accordance with the interim policy issued by ADM (HR-Mil) on April 23, 2001.
Since the situation may happen again, the CDS was of the view that his decision will provide CMP with his interpretation of the issue, so that his organization can look at developing a solution that would ensure that future similar cases can be handled by the chain of command.
Category of grievances received since 2008
Data as of June 30, 2010
Findings and Recommendations (F&R) rendered in 2010
52 cases as of June 30, 2010
Decisions rendered by the CDS
72 received between January 1, 2010 and June 30, 2010