# 2013-078 - Class C Reserve Service, Ex gratia, Waiver

Case Summary

F&R Date: 2013–11–28

The grievor complained of the cancellation of her operational deployment just four days prior to deploying. As redress, she sought an alternate employment opportunity and compensation for deployment related expenses she incurred.

The Initial Authority, the Commander Naval Reserve (Comd Nav Res), found that the initial decision to allow the grievor to deploy again within 12 months of her previous deployment was flawed; however, he denied the grievance noting that granting a waiver would not have been in the best interests of the grievor or the Nav Res.

The Committee noted that the grievor had recently completed an operational tour, had passed the screening for another deployment within 12 months, had been authorized Class C Reserve Service (Cl C Svc), and had successfully completed pre-deployment training. She had also contracted for the custodial care of her residence and purchased the required and recommended kit for the deployment.

Although the Nav Res HQ N1 had found that the grievor met all administrative requirements, the Director General Naval Personnel (DGNP) questioned why the grievor was being considered for another operational tour when other members could benefit from the experience. As a result, the Deputy Comd Nav Res cancelled the grievor's Cl C Svc four days before departure.

The Committee agreed with the grievor that it was disingenuous for the Comd and Deputy Comd Nav Res to suggest that the deployment was cancelled out of concern over the possible adverse effects of operational stress on the grievor when the evidence on file indicated that it was as a result of the DGNP suggestion that someone else should get the opportunity.

The Committee observed that the grievor was, in all respects, ready for the deployment and that, given the very late notice, the most appropriate decision may have been to waive the required 12-month break between deployments as was requested. However, noting that it was within the discretion of the Royal Canadian Navy to approve or deny the waiver, the Committee was unable to find that the cancellation was contrary to policy.

Regarding the requested remedy, the Committee noted that the grievor had rejected a compensatory offer of Class B Reserve Service and considered that issue to be closed. With respect to reimbursement of her expenses, the Committee consulted the Director Compensation and Benefits Administration who advised that the grievor was not entitled to reimbursement under the Compensation and Benefits Instructions but that the grievor's case appeared to merit consideration for an ex-gratia payment. The Committee agreed and recommended that the Chief of the Defence Staff grant partial redress by using his authority to make an ex-gratia payment as compensation for the contracted custodial care and for those items purchased specifically for the deployment in accordance with advice received pre-deployment.

CDS Decision Summary

CDS Decision Date: 2015–07–16

The FA did not agree with the Committee's recommendation that partial redress be granted by using the authority to make an ex gratia payment. The FA found that as unfortunate as the grievor's circumstances are, such payment would constitute policy's gap-filling.