# 2014-170 - Recovery of Overpayment , Temporary Duty Benefits

Case Summary

F&R Date: 2015–01–13

The grievor, based in Halifax, was assigned to work on Temporary Duty (TD) for a ship refitting project in Ontario due to last over 215 days. The grievor was placed by his Chain of Command (CoC) on a new TD every month, entitling him to 100% per diem coverage for up to 31 days and full reimbursement for travelling back and forth between the project and his normal place of duty. The grievor was directed to stay at a specific hotel as his CoC had determined that there was no cost effective lodging in the area with facilities to prepare one's own meals.

Auditors who performed a review of the benefits found that the grievor was not entitled to his full meal allowances and reimbursement of travel expenses to go to Halifax and come back as he travelled during weekends.

The grievor submitted that the interpretation of TD regulations by the auditors was erroneous and the recovered benefits for meals and weekend travel should not have been deemed as overpayments.

The Initial Authority found that the interpretation of audit staff was correct and recovery from the grievor was appropriate. The IA found that TD is the performance of a duty for a period of six months or less at a location other than the member's permanent place of duty. Nonetheless, the IA determined that a TD period greater than 180 days was approved, contrary to policy and concluded that the grievor was on a period of “extended” TD while working on the project. In accordance with Canadian Forces Administrative Order (CFAO) 20-5, articles 7.16 and 7.18, the grievor was subject to the reduction of incidental and meal allowances to 75% after the 31st cumulative day on TD. In accordance with Compensation and Benefits Instructions (CBI) 209.31, the IA found that weekend travel can be authorized by a member's Commanding Officer (CO) when on TD away from the member's normal place of duty, however, reimbursement for weekend travel should not have exceeded the cost of maintaining the grievor at the TD location over the weekend.

The Committee found that it was the grievor's CoC who made all decisions relating to the living accommodations for members while they worked on the TD project. The grievor did not have the option of staying in a corporate residence or apartment or to make different travel arrangements. Thus, the Committee found that in accordance with the National Joint Council Travel Directive, Appendix C- Allowances, the second condition necessary to reduce the meal/incidental allowance to 75% was not met. He should have been reimbursed 100% for his meals and incidentals as he was unable to prepare them himself.

The Committee also found that although the grievor returned to his normal place of duty monthly on weekends, this did not automatically mean that it was “Weekend Travel” as prescribed in CBI 209.31. The Committee found that the grievor was directed to travel on weekends by his CoC in order to complete work. The Committee determined that this constituted duty travel, not weekend travel, in each instance and was therefore, not subject to CBI 209.31.

The Committee recommended that all funds recovered from the grievor, as a result of the audit of his TD benefits, be returned to him as he should not have been subjected to recovery in accordance with the TD policies.

In the alternative, the Committee recommended the debt be remitted or that the Chief of the Defence Staff (CDS) forward the file to the Director Civil Claims and Litigation in order that consideration be given to compensating the grievor in accordance with the Treasury Board Directive on Claims and ex gratia payments.

CDS Decision Summary

The Final Authority (FA), the Director Canadian Forces Grievance Authority, agreed with the Committee's recommendation that appropriate measures be taken to return the funds recovered from the grievor following an audit on claims associated with the refit. The FA did not agree with the Committee's finding that the NJC Travel Directive is applicable; he found that only Treasury Board may determine and regulate payments made to Canadian Armed Forces members. The FA found that while the Canadian Forces Temporary Duty Travel Instruction (CFTDTI) does incorporate by reference portions of the NJC Travel Directive, such as for allowance rates, it clearly does not incorporate those provisions that deal with the absence of long term accommodations. The FA added that there is no language of the CFTDTI to support the conclusion that the Treasury Board Secretary, when approving the Instruction, intended those provisions to be incorporated.