# 2010-010 - Accuracy of Information by Recruiters, CDS' Authority to Award Financial Compensation, Overpayment, Pay

Accuracy of Information by Recruiters, CDS' Authority to Award Financial Compensation, Overpayment, Pay

Case Summary

F&R Date: 2010–06–29

The grievor was completing a component transfer (CT) from the Reserve force to the Regular force simultaneously with an occupational transfer from a standard pay group occupation to a specialist pay group occupation. His initial CT offer stated that he would be paid as a Corporal (Cpl). The grievor did not fully accept this offer as he believed he was entitled to pay protection at his Reserve rank. The National Defence Headquarters (NDHQ) authority agreed and sent him a new offer which included the requested pay protection. The grievor accepted the new offer and completed his CT.

A few months later, the NDHQ authority discovered that the grievor was not entitled to pay protection. After initially amending the grievor's enrolment transfer posting instruction (ETP) to remove the pay protection, the NDHQ authority amended it a second time to grant the grievor specialist pay, which in essence achieved the same ends; the grievor's pay rate was consistent with what it was prior to the CT. However, a few months after that, it was determined that the grievor was not entitled to specialist pay because he did not have the required qualifications. His pay was therefore reduced to that of a Cpl and he now faced recovery of several months of overpayments.

The grievor argued that he had only accepted the CT offer once the pay protection was confirmed and that he expected the Canadian Forces (CF) to honour the agreement they had made with him. As redress he requested that the CT offer he had agreed to be honoured.

The Initial Authority found that although the CF was responsible for the errors, there was nothing she could do to remedy the situation as she was bound by the existing regulations that defined the grievor's pay entitlements.

The Board found that, notwithstanding that the CF does not enter into "contracts" with its members, the CF did have an obligation to enforce agreements made with applicants and transferees to the greatest extent possible. The Board also found that the CF was guilty of negligent misrepresentation in this case.

The Board recommended that the grievance be upheld and that the Chief of the Defence Staff (CDS) waive promotion requirements or other conditions within his authority to find a way to respect the agreement the CF made with the grievor.

If this was not possible, the Board recommended that the CDS refer the file to the Director Claims and Civil Litigation (DCCL) with a request that the DCCL negotiate a fair financial settlement with the grievor.

CDS Decision Summary

CDS Decision Date: 2010–10–27

The CDS partially agreed with the Board's findings and its recommendation to uphold the grievance. Although the CDS agreed with the Board's finding that errors were made for which the grievor was not responsible, he was not prepared to exercice his discretionary authority in the manner recommended by the Board, ie by waiving promotion requirements or other conditions. The CDS found that the only fair remedy that falls within his powers was to require the grievor's unit to expedite his attainment of QL5 in order to receive the specialist pay rate as soon as possible. The CDS acknowledged that the grievor suffered damages due to errors made upon his enrolment and he encouraged him to pursue the matter with DCCL. The CDS did not accept the Board's recommendation that he request the CF Ombudsman to investigate the misleading information issue and make recommendations. The CDS was satisfied that the measures instituted by CFRG HQ were appropriate. Since CT recruitment was reassigned and now resides with D Mil C, the conditional offers are provided in writing, and, therefore, there is much-reduced chance for misunderstanding. Finally, regarding his authority to award financial compensation, the CDS stated that a working group, chaired by the DGCFGA, is currently in place and is working with the assistance of DCCL to find a way to resolve this issue.

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