# 2012-014 Careers, Delegation of Authority, Relinquishment of Rank, Reserve Force, Terms of Employment for Reservists

Case Summary

F&R Date: 2012–05–31

In October 2007, the grievor signed a Statement of Understanding (SOU) for a two-year Class “B” period of Reserve service with the possibility of a two-year extension, conditional on his transfer from the Regular Force to the Primary Reserve List (PRL), given that the grievor, a Chief Warrant Officer (CWO), was the only qualified applicant for the Captain/Master Warrant Officer (Capt/MWO) ranked Reserve Force (Res F) position. The unit requested and received authority to over-rank the position to CWO.

In January 2009, the Commanding Officer (CO) National Defence Headquarters (NDHQ) PRL [also holding the position of Special Assistant to the Chief Military Personnel (CMP)] informed her subordinates that in order to comply with the CMP Instruction 20/04, and with existing direction to reduce the over-ranking of positions, all requests for over-ranking a position would have to be submitted to the NDHQ PRL for approval.

In June 2009, the grievor’s unit was informed that the position was being extended an additional two years and that they were to prepare and submit the necessary paperwork for the grievor’s two-year extension to the NDHQ PRL prior to the commencement of the extension period. However, the paperwork ended up being delayed until two weeks after the beginning of the grievor’s extended period of service. When presented the new SOU for signature, the grievor realized for the first time that the over-ranking was not included and that he would have to agree to relinquish his rank of CWO to MWO in order to continue serving.

The grievor objected to being forced without notice to relinquish his rank and asked that his CWO rank and pay be restored, effective the beginning of his extension period.

The CMP, as the initial authority (IA) in this matter, denied the grievance, explaining that the grievor’s extension was processed properly in accordance with the existing policy. The IA acknowledged that delays in processing the grievor’s extension contributed to the lack of notice to the grievor and indicated that he would consider the possibility of amending the guidelines regarding notification.

The Board first observed that there had not been a proper delegation of Approving Authority from the CMP to the CO NDHQ PRL. As a result, the Board found that the decision denying the over-ranking of the grievor was not valid.

The Board re-evaluated the grievor’s case and found that, in accordance with CMP Instruction 20/04, the grievor’s service should not have been extended without a competition given that he was over-ranked for the position.

The Board found that the Canadian Forces (CF) erred by extending the grievor without competition and that the CF’s error was detrimental to the grievor. Because the CF failed to hold the necessary competition, the Board found that the grievor should be given the benefit of the doubt in regard to whether there would have been another qualified candidate available. Accordingly, in the absence of another qualified candidate, the Board found that the grievor would have been eligible for over-ranking pursuant to paragraph 4.8 of the CMP Instruction 20/04. Based upon the CF’s mishandling of the grievor’s extension, the Board found that some form of redress was justified and recommended that the grievor’s over-ranking would be appropriate.

Finally, the Board observed that, according to the Queen’s Regulations and Orders for the Canadian Forces (QR&O), article 11.12(4) - RELINQUISHMENT OF RANK, only the Chief of the Defence Staff (CDS) or his delegate can approve relinquishment in a situation such as that of the grievor. The Board found no evidence that the CDS had designated an officer to approve relinquishment in the case of the grievor or that he himself had approved such a relinquishment request.

Therefore, the Board recommended that the CDS remedy the consequences of the CF’s error in staffing the grievor’s position by not granting the grievor permission to relinquish his rank in accordance with (QR&O), article 11.12(4).

The Board recommended that the CDS uphold the grievance.

CDS Decision Summary

CDS Decision Date: 2012–11–06

The FA agreed with the Board's findings and its recommendation to uphold the grievance. The FA agreed with the Board that the over-ranking disposition in CMP instr 20/04 led to confusion. In light of the circumstances and the errors that occurred in the handling of the his employment extension, the grievor should have continued as a CWO for the identified period. Consequently, the FA directed CMP to amend the grievor's SOU. The FA agreed with the Board's observation that the delegation of the authority to approve over-ranking and relinquishment of rank for Cl B res service under CMP Instr 20/04 needs to be clarified: he referred the matter to CMP for his review and action.

The FA did not agree with the Board's observation that the IA decision is invalid because it was signed on his behalf by the assistant CMP. There was a letter that appoints this individual as acting CMP for a period, assuming all roles and responsibilities. A copy of that letter should have been included with the IA decision, but the FA found that the decision is valid.