# 2016-011 Pay and Benefits, Enrollment Transfer Posting instruction

Case summary

F&R Date: 2019-11-27

The grievor contested the Canadian Armed Forces' (CAF) decision to demote him to the rank of second lieutenant (2Lt) and to demand that he repay the overpayment. He stated that he would not have agreed to leave his civilian employment if the CAF had not agreed to grant him the rank of lieutenant (Lt) upon re-enrolment. The grievor requested, among other things, a retroactive promotion to the rank of Lt on the date of his re-enrolment, financial compensation, as well as restitution of the amounts he had to repay.

The Initial Authority (IA) denied the grievance, explaining that the grievor had been treated reasonably, justifiably and in accordance with policy. In addition, the IA stated that contract law did not apply to members of the CAF. 

The Committee held a hearing and interviewed several witnesses regarding the re-enrolment process within the CAF. The Committee found that, eighteen months after his re-enrolment, the grievor had qualified for promotion to the rank of Lt and would have been promoted to the rank of Captain (Capt) two years after his promotion to the rank of Lt.

The Committee found that a contractual relationship did exist between the grievor and the CAF. According to this pre-employment contract, the grievor undertook to leave his civilian employment and re-enrol, and the CAF undertook to re-enrol him at the rank of Lt.  Consequently, it was unfair that the CAF retroactively modified an offer that had been accepted in good faith by both parties.

That being said, the Committee found that the error committed by the CAF had caused the grievor financial and emotional harm.  

The Committee therefore recommended that the Chief of the Defence Staff (CDS) grant the grievor a retroactive promotion to the rank of Lt and Capt. It also recommended that the CDS order the grievor to be reimbursed for any amounts recovered as a result of the error made by the CAF regarding his rank.    

Failing that, the Committee recommended that the CDS offer the grievor an ex gratia payment or acknowledge that he had suffered prejudice and refer the file, with his support, to the Director Claims and Civil Litigation.

FA decision summary

The Chief of the Defence Staff (CDS) endorsed the Committee's recommendation to grant the grievor a retroactive promotion to Lt and Capt in accordance with the initial offer made to the grievor. The CDS criticized the Canadian Forces Recruiting Group's (CFRG) and the IA's decisions due to a lack of procedural fairness and that they were in violation of paragraph 8.13 of Defence Administrative Order and Directive 2017-1, as they provided insufficient reasons for the grievor's demotion to 2Lt, and the grievor was not able to contest the decision. 

The CDS is of the view that the grievor's prior service, skills, education (Master's) and work experience in the public service were not properly considered. Even if his re-enrolment occurred more than five years later, the grievor maintained and acquired skills useful to the Canadian Armed Forces (CAF) in accordance with Compensation and Benefits Instructions paragraph 204.015. The CDS considered Canadian Forces Administrative Order (CFAO) 11-6 and determined that a CAF member could hold the rank of Lt even if they did not meet the occupational requirements: paragraph 24 in particular applied to the grievor in terms of the rank of Lt. With respect to the rank of Capt, the CDS concluded that even though the grievor's situation was not described in Annex A to the CFAO, his situation was unusual, and the grievor's case should therefore have been reviewed. However, the CDS did not discuss the relationship between an applicant and the CAF when the applicant is not yet a CAF member and an official offer is made. The CDS ordered the CFRG to revoke the demotion message to the rank of 2Lt and reactivate the initial message offering the rank of Lt. He ordered the Director General Military Careers to take the necessary measures to determine the grievor's merit board ranking in view of a retroactive promotion to the rank of Capt. Finally, the CDS ordered the Chief of Military Personnel to review the enrolment process to ensure that re-enrolment procedures are fair and equitable, and easy for personnel to understand.