# 2010-089 - Allowances and Benefits, Diving Allowance, Environmental Allowances

Case Summary

F&R Date: 2011–01–24

The grievor, a qualified specialist non-commissioned member, was posted to a designated position and entitled to the applicable specialist monthly environmental allowance. The grievor attended a seven-month career-related course on temporary duty, which was subsequently changed to an attached posting. As a result of this change, the grievor was advised that the specialist allowance would be ceased in accordance with Canadian Forces Administrative Order (CFAO) 205-25 - Environmental Allowances. The CFAO provided that an "Attached Posting" had the same meaning as a "Posting" and went on at the applicable annex to require that the specialist allowance be ceased at the end of the day on which a member was posted.

The grievor's position was that he should receive the allowance for the duration of his training because he held a designated position at his home unit, and the training was a requirement for his occupation.

As redress, the grievor requested that his specialist environmental allowance be reinstated for the duration of his course.

The Board noted that eligibility for the allowance under the applicable Compensation and Benefits Instructions (CBI) is based on a member being properly qualified and filling a designated position. The CBI contained no provision for ceasing the allowance during temporary absences. In the grievor's case, he was posted into the designated position and was properly qualified to receive the allowance.

The Board observed that, in ceasing the allowance, the administrative authority relied on the definition in CFAO 205-25 that, for the purposes of that Order only, deemed that "attached posted" had the same meaning as “posted” and “employed in” and that the allowance ceases at the end of the day when attached posted as if the grievor had been posted out of the position.

The Board did not agree with the administrative authority's reasoning, finding that it was not open to the Canadian Forces (CF) through the use of a deeming provision in a CFAO to disentitle a member from a benefit to which he would otherwise be entitled pursuant to a regulation such as a CBI.

The Board found that the grievor was eligible for the allowance because he was filling a duly authorized designated position at his home unit whilst he was temporarily away on training.

The Board recommended that the grievance be upheld and the grievor be paid the allowance for the duration of his training.

Systemic Recommendations

The Board recommended that the Chief of the Defence Staff (CDS) direct a review of the files of all CF members who attended the same course as the grievor or another EOD course at Eglin AFB and who were denied the DIVGA, in order to ensure that all attendees who were appropriately qualified and who were posted into a position authorized by the Minister receive the DIVGA.

The Board also recommended that the CDS direct a review of the DIVGA and other similarly affected environmental allowances and their administrative directions to ensure that the administrative directions do not serve to limit benefits authorized by the applicable CBI.

CDS Decision Summary

CDS Decision Date: 2011–07–14

The CDS did not agree with the Board's recommendation that the grievance be upheld. Based on a 1976 Environmental Allowances Study approved by TB, the CDS found that the grievor's exposure to the diving and water environment was interrupted by a course that exceeded six months in duration. Therefore, he was satisfied that the grievor was not entitled to DIVGA.

Although the Board was of the view that CBI 205.34 does not restrict the entitlement to the allowance when the member is attached posted on a career-related course for over six months, the CDS did not agree with the Board's systemic recommendation that a review be conducted to ensure that the administrative directions do not limit benefits authorized by the applicable CBI.