# 2012-026 Pay and Benefits, Breach of Contract/Promise, Director Claims and Civil Litigation (DCCL), Pay, Re-Enrollment

Case Summary

F&R Date: 2012–05–31

The grievor served in the Canadian Forces (CF) from 1991 to 1999; some 10 years later, he was offered and accepted re-enrolment at the rank of Private (Pte), with a pay increment (PI) level 3 and a time credit towards promotion (TCP) of three years and 364 days. This offer was reflected in his enrolment transfer posting (ETP) instruction message. The ETP message was later modified to indicate that the grievor would not receive credit for his previous service; this resulted in the grievor's PI to be reduced to level 1 with no TCP.

The grievor stated he accepted the original offer of enrolment in good faith on the understanding that his pay woud be at PI level 3. The grievor maintained he was notified of the reduction in pay level only two days prior to the commencement of his training, having already terminated his civilian employment, given up his residence and placed his furniture in storage. He requested that the original ETP instruction message be honoured.

The initial authority (IA) indicated that no contract is signed upon enrolment in the CF. As well, the IA confirmed that previous CF service is not recognized as qualifying service when there is a break in service of more than five consecutive years. The IA stated that previous experience can be of benefit to a member in his chosen career without being considered to be of "military value" if the acquired skills and/or experience do not translate into a reduction in training time in the member's new occupation. The IA denied redress.

In the circumstances, the Board determined that the grievor should have been re-enrolled as a Pte PI level 1 as per the modified ETP instruction. Notwithstanding, the Board acknowledged that the relationship between the CF and its members is not contractual in nature and that once enrolled, a member has entered into a unilateral commitment to serve in return for which the Crown assumes no obligation. However, in the case at hand, when the grievor accepted and relied on the offer, he was still a civilian - not a serving member. It was the Board's view that the CF has, if not a legal obligation, a moral obligation to provide redress to the grievor and that financial compensation should be available as redress.

The Board observed that whether in recruiting allowance cases or in situations where the rank or the PI level of a candidate on enrolment is wrongly established, in most instances these errors are discovered once the candidates have become CF members and, at this point, they are left with few options since they are required to serve under the new conditions until lawfully released. On this issue, the Board was of the view that CF members in such circumstances should be allowed to choose between accepting to serve under the new conditions of service and obtain financial compensation for damages that have resulted from the error or taking a release without penalty in addition to financial compensation to cover all expenses necessary to put them back where they were prior to enrolment.

The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance.

The Board recommended the CDS acknowledge the error that led to a breach of the grievor's offer of enrolment.

The Board recommended the CDS refer the file to the Director Claims and Civil Litigation for review as a potential claim of breach of contract.

CDS Decision Summary

CDS Decision Date: 2013–09–26

The CDS did not agree with the Board's recommendations. Like the Board, the CDS found that the grievor should not have been re-enrolled in the first place with a PI 3 and a TCP of 3 years. However, the CDS did not agree with the Board's analysis that the CF has a moral obligation to provide redress based on a breach of contract. Although the CDS recognized that the initial ETP instruction from CFRG was made in error, he stated that the CF has an obligation to correct the error, even if it produces an adverse effect on a CF member. Since, he has no authority under the National Defence Act to afford the grievor's redress, no authority over DCCL and no authority to accept liability on behalf the Crown or settle potential claims against the Crown, the CDS denied the grievance.