eBULLETIN - April 2015

Contents

Highlights

Case Summaries

Statistics

Mailing List

See our Case Summaries List or Systemic Recommendations for further information about recent and past MGERC cases.

Highlights

Entitlement to the Compassionate Travel Assistance (case no. 2014-041)

The grievor, a Reservist serving on uninterrupted periods of Class C service, was denied Compassionate Travel Assistance based on the interpretation of the policy that only Reservists entitled to a move at public expense and serving on their original period of service were eligible for the allowance. As redress, the grievor sought the reimbursement of the eligible travel expenses he incurred to attend the funeral of an immediate family member.

Harassment Complaint (case no. 2014-076)

The grievor, the respondent in a harassment complaint, filed a grievance challenging the findings of the Responsible Officer and the corrective measure imposed following those findings.

Poor Documentation (case no. 2014-090)

The grievor submitted a Compassionate Travel Assistance (CTA) claim for travel costs related to tending to his parents' affairs after they were involved in a car accident. The claim was originally misplaced and the travel costs related to his mother's funeral were subsequently denied. The grievor provided documentation that showed he was travelling during that period and a copy of his mother's death certificate, which also demonstrated that he was away for compassionate reasons and, as such, entitled to CTA in accordance with the applicable policy.

Case Summaries

Entitlement to the Compassionate Travel Assistance

Committee Findings and Recommendations

The grievor, a Reservist serving on uninterrupted periods of Class C service, was denied Compassionate Travel Assistance (CTA). The grievor was deemed ineligible to receive CTA based on the interpretation of the policy that only those Reservists entitled to a move at public expense and serving on their original period of service were eligible for the allowance. As redress, the grievor sought the reimbursement of the eligible travel expenses he incurred to attend the funeral of an immediate family member.

The initial authority (IA) found that the interpretation of the policy was overly restrictive. As well, he found that there is a conflict between the Canadian Forces Military Personnel Instruction 20/04 and the Compensation and Benefit Instructions (CBI) 209.51 and that neither has the authority to override the other. Although supportive of the grievance, the IA determined that he did not have the authority to grant the redress sought and stated that he would ask the Director General Compensation and Benefits to review the grievor's request.

The Committee had to determine whether the decision to deny the grievor's CTA claim was in accordance with applicable policies and regulations.

The Committee agreed with the IA on the narrow interpretation of the policy and noted from previous final authority decisions that the application of a benefit ought not to be so restrictive as to deviate from the intent of the policy.

The Committee could not imagine or accept that the Treasury Board intended to limit the CTA only to those Reservists who were moved at public expense and have lost a loved one during their original period of service, but not to those Canadian Armed Forces members who have agreed to stay and serve for additional and uninterrupted periods of service. The Committee considered that such an interpretation would be contrary to the purpose of the CTA.

The Committee noted that the Queen's Regulations and Orders for the Canadian Forces 9.08 and the CBI 209.51(3) did not limit or tie the qualifying Class C Reserve Service to the initial period of service or to the original position for which a move at public expense was granted. Therefore, in the context of this case and for the purpose of the CTA, the Committee found that CBI 209.51 could be applied to multiple consecutive Statements of Understanding, as long as the Class B or Class C Reserve Service remains uninterrupted.

The Committee found that the grievor was entitled to the CTA and recommended that the Chief of Defence Staff (CDS) uphold the grievance.

Final Authority Decision

The CDS agreed with the Committee's findings and recommendation that the grievance be upheld.

Harassment Complaint

Committee Findings and Recommendations

The grievor, the respondent in a harassment complaint, filed a grievance challenging the findings of the Responsible Officer (RO) and the corrective measure imposed following those findings. The Committee was therefore called upon to review the findings of the RO and to determine whether the corrective measure imposed on the grievor was justified in the circumstances.

A decision by the initial authority (IA) was not rendered in this case, as the grievor did not provide the IA with an extension of time.

In reviewing the complaint, the RO determined that only one of the six allegations met the definition of harassment and, based solely on one testimony which was obtained outside the investigation process, that the allegation was founded. The Committee noted that the person who made the allegation did not witness the event, reporting instead the account of a witness, and that it was that same witness' account that the RO obtained and used as evidence to support the allegation. The Committee concluded that it was insufficient to rely solely on said testimony to establish, even on a balance of probabilities, that it constitutes sufficient evidence, given that several other individuals may potentially have been direct and important witnesses to the event and that they were not called to testify. The Committee was of the view that the RO erred in limiting the nature and scope of his actions in investigating this complaint.

Given the circumstances surrounding the harassment complaint, and considering that the two parties involved have since been released from the Canadian Armed Forces, the Committee was of the view that an intervention or a new administrative investigation, normally required to restore the workplace, was no longer necessary.

The Committee recommended that the Chief of the Defence Staff (CDS) invalidate the findings and the decision of the RO. It also recommended that the administrative measure taken against the grievor be overturned and withdrawn from his files.

Final Authority Decision

The CDS agreed with the Committee's findings and recommendation to change the Closure Letter-Harassment Complaint in order to remove the conclusions with regard to the allegation no. 6 and to retrieve the initial counselling imposed on the grievor.

Poor Documentation

Committee Findings and Recommendations

The grievor submitted a Compassionate Travel Assistance (CTA) claim for travel costs related to tending to his parents' affairs after they were involved in a car accident. The claim was originally misplaced for several years and the travel costs related to his mother's funeral were subsequently denied on the basis that his leave record did not show that he had been granted Compassionate Leave for the period in question. The grievor provided documentation that clearly showed he was travelling during that period and a copy of his mother's death certificate, which also demonstrated that he was away from his post for compassionate reasons.

The initial authority denied the grievance on the basis of the absence of authorized leave in the grievor's leave record. The Committee had to determine if the grievor was entitled to CTA for travel costs associated to his mother's funeral in accordance with the applicable policy.

The Committee reviewed article 209.51(3) - Compassionate Travel Assistance, of the Compensation and Benefits Instructions, and determined that the grievor was eligible for the benefit but that the missing documentation on whether he was granted compassionate leave impeded the processing of his claim. The Committee found that there was sufficient evidence to support the grievor's claim. His Commanding Officer (CO) of the day indicated that, given the unique circumstances of this tragic event, he remembers clearly that the grievor had been granted Compassionate Leave for the entire period in which he tended to his parents' affairs. Given his former CO's statement, the Committee found that the grievor was travelling under authorized leave for compassionate reasons. Therefore, whether the omission in properly documenting the leave was attributable to his Orderly Room or was an oversight of his Chain of Command, the grievor should not be penalized for the error or omissions of others.

The Committee recommended that the CTA claim be appouved.

Final Authority Decision

The Chief of the Defence Staff agreed with the Committee's findings and recommendation that the grievance be upheld.

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