# 2009-076 - Annual Leave, Imposed Restriction (IR), Jurisdiction Concerning Time Limits for Submission, Leave...

Annual Leave, Imposed Restriction (IR), Jurisdiction Concerning Time Limits for Submission, Leave Entitlement

Case Summary

F&R Date: 2010–02–03

When the grievor was transferred from the Reserve Force to the Regular Force, his entitlement to annual leave was miscalculated, and, as a result, he received five more days than he was entitled to. The Canadian Forces (CF) did not notice the error until two years later and asked the grievor to repay the equivalent of ten leave days. The grievor claimed that he had trusted the staff at the Canadian Forces Recruiting Centre and had subsequently used only the number of leave days to which he mistakenly believed he was entitled. He asked that he be reimbursed an amount equivalent to the ten leave days that he had to repay.

The initial authority (IA) denied the grievance. The IA found that the grievor should have realized that an error had been made. The IA also stated that the fact that the grievor did not attempt to have the error corrected was punishable, but decided to not take any administrative or disciplinary action against him. The IA ordered that the equivalent of ten annual leave days be deducted from the grievor’s pay.

The Board noted that the entitlement to annual leave is calculated based on a member’s prior qualifying service in accordance with specific conditions and formulas. The data required for the calculation belongs to the CF. It is available through People Soft and the member’s personnel record. The Board also noted that the leave calculation is done by specialists and found that the fact that those specialists made an error was sufficient to prove the complexity of the calculation. Contrary to the IA’s finding, the Board concluded that the CF was responsible for the calculation, not the grievor.

Last, the Board noted that article 208.315 of the Queen's Regulations and Orders for the Canadian Forces - FORFEITURES IN RESPECT OF LEAVE – gives the Chief of the Defence Staff (CDS) discretion to impose or not impose a forfeiture of pay in cases where too much leave has been granted.

The Board determined that the grievor’s case was one of the cases where the CDS should exercise his discretion and, to remedy the situation, the Board recommended that the CDS grant the grievor ten days special leave.

The Board recommended that the CDS allow the grievance.

CDS Decision Summary

CDS Decision Date: 2011–03–31

The CDS partially agreed with the Board’s findings and recommendation to allow the grievance and exercise his discretion to grant the 10 days of excess annual leave received. The CDS maintained that in order to establish whether it was reasonable to request a repayment, it must first be determined whether the member was treated in accordance with current regulations and, if not, did that member suffer any harm. It is not a matter of determining who committed the administrative errors. Nevertheless, the CDS granted the grievor four days of special leave to compensate for the inconvenience. The CDS partially agreed with the Board’s systemic recommendation. He supports the fact that for late grievance submissions that are included in the mandatory categories set out in article 7.12 of the QR&O, the DGCFGA does not have the authority to determine whether it is in the interests of justice to consider them. However, the CDS did not support the part of the recommendation that all grievances refused by the DGCFGA based on time limits, but which should have been referred to the Board pursuant to article 7.12, be reconsidered.

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