# 2011-128 - Overpayment, Pay, Pay Protection, Pilot's Backdated Promotions to Captain, Promotion, Retroactive Pay

Overpayment, Pay, Pay Protection, Pilot's Backdated Promotions to Captain, Promotion, Retroactive Pay

Case Summary

F&R Date: 2012–05–25

The grievor enrolled in the Regular Force as an untrained pilot. Upon completion of his Basic Officer Training, he was commissioned as Second Lieutenant (2Lt) effective his date of enrolment. Upon attaining Wings Standard and becoming a qualified pilot, he was given a backdated promotion to Lieutenant (Lt), General Service Officer (GSO), effective his enter promotion zone (EPZ) date for Lt and was promoted to Captain (Capt) pilot effective the same date that he attained Wings Standard. Following the backdated promotion to Lt GSO, his 2Lt/Lt pay was re-calculated using table "C", pay level "C", of the pay rates for Direct Entry Officer (DEO) Lt Officers. This recalculation resulted in the grievor being required to repay an overpayment.

The grievor complained that his promotion to Capt should have occurred sooner but did not due to delays in attaining his Wings Standard that were the fault of the Canadian Forces (CF) and outside of his control. As redress, he asked to be promoted to Capt GSO, backdated to his EPZ date for Capt, and to have his incentive pay category (IPC) level increased accordingly.

The Board noted that from the mid-1990s through to late 2009, the CF had adopted a practice of promoting pilots to Capt GSO, backdated effective their EPZ date, once they had qualified to Wings Standard. This was done in order to mitigate the detrimental impact that ongoing training delays were having on pilots. However, the CF ceased this practice in October 2009 just prior to the grievor attaining his Wings, thus prompting his grievance.

The Director General Military Careers (DGMC) indicated to the Board that there was no authority for the CF to promote a pilot to Capt GSO, backdated prior to the date that Wings Standard was achieved, notwithstanding the CF’s prior practice in this regard. The DGMC also stated that even the Chief of the Defence Staff (CDS) “did not have this authority although previous holders of that office have been advised or acted differently in the past.”

The Board agreed with the DGMC to the extent that the current policy on promotion, Canadian Forces Administrative Order (CFAO) 11-6, Annex A, does not permit the backdating of promotions to Capt prior to military occupational classification qualification.

However, the Board noted that the direction in the CFAO is subject to the exception set out in paragraph 11.02(2) of the Queen's Regulations and Orders for the Canadian Forces (QR&O) which stipulates that in any particular instance or in any given circumstances, the CDS may direct that the requirement to meet any promotion standard be waived. Given that the provisions of the QR&O take precedence over those of the CFAO, the Board found that it was, and remains, open to the CDS to direct the backdated promotion of any pilot to Capt rank prior to the date the pilot qualified at Wings Standard.

The Board also noted that, in April 2011, the CDS rendered a decision in which he supported the previous CF practice of backdating the promotions of pilots to Capt GSO in case where pilots were delayed in attaining Wings Standard because of “military reasons”. In that decision, the CDS also explained that “military reasons” were meant to denote occurrences within the control of the CF.

The Board found that it would be reasonable for the CF to accept responsibility for delays in respect of which the pilot was in no way responsible, given that the pilot recruit is powerless to make, or even influence, decisions affecting his or her Wings training. In the case at hand, evidence showed that the grievor was not responsible for the delays and that it had taken the CF almost five years to progress him through to Wings Standard.

The Board also found that it would be reasonable and equitable for the CDS to exercise his authority under paragraph 11.02(2) of the QR&O and, therefore, recommended that the CDS partially grant the grievance by directing the grievor’s promotion to Capt GSO, backdated to his EPZ date for Capt, by waiving the grievor’s requirement to obtain Wings Standard prior to promotion to Capt.

In addition, the Board made two related systemic recommendations to the CDS; one suggesting that the files of all pilots having achieved Wings Standard since October 2009 be reviewed for possible backdated promotion to Capt GSO effective their EPZ date, and the second recommending the current promotion policy be amended to clarify and embody the option of backdating promotions to Capt GSO where required due to delays in the provision of pilot training, provided the pilots are not personally responsible for the delay.

Regarding the 2Lt/Lt overpayment issue, the Board found that there was an anomaly in the two pay tables ["B" and "C"] that guide the pay for 2Lt and Lt DEO in accordance with paragraph 204.211(9) of the Compensation and Benefits Instructions (CBI). Certain annual pay increments for DEO 2Lt officers are significantly larger than the same increments for DEO Lt Officers. Effectively, because he had been granted additional IPC increases in the rank of 2Lt during the delays in his training, the grievor was paid less after receiving his backdated promotion to Lt. The Board found that such a result was unintentional on the part of the CF but, that the current CBI on pay did not provide pay protection against such a possibility.

The Board noted that the issue would be resolved should the CDS grant the backdated promotion to Capt GSO. However, should the CDS not support the recommendation for promotion, the Board recommended that the CDS reduce the length of the grievor’s backdated promotion to Lt GSO from three years and eight months to just two years prior to Wings Standard, as this would serve to greatly reduce or possibly extinguish the overpayment. The Board observed that this action would also require the concurrence of the grievor.

The Board made a systemic recommendation to the CDS suggesting that a submission be made to Treasury Board in order to amend CBI 204.04(3) so as to explicitly protect the pay of CF members who are granted retroactive promotions.

Regarding the Capt pilot IPC calculation, the Board found that, in accordance with subparagraph 204.03(5) c) of the CBI, the grievor’s IPC anniversary date was the date that he achieved Wings Standard.

The Board recommended that the CDS partially grant the grievance.

CDS Decision Summary

CDS Decision Date: 2013–04–19

The CDS partially agreed with the Board's recommendations. He did not agree with the recommendation to promote the grievor Capt; however, he agreed that the date of the grievor's promotion to Lt be reviewed. Although the CDS recognized that this was the practice for many years, he did not agreed that promoting members to Capt without being qualified remains the best nor the only solution available to address the systemic issues associated with delays in individual training.

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