# 2012-033 Pay and Benefits, Imposed Restriction (IR), Overpayment, Post Living Differential (PLD), Separation Expense (SE)

Case Summary

F&R Date: 2012–06–08

The grievor submitted a grievance after he was informed he would have to reimburse $63,000 representing separation expense (SE) and post living differential (PLD) benefits he had received between 2007 and 2011. The grievor stated that his personal circumstances were known to his chain of command (CoC) when his imposed restriction was approved and he should not have to reimburse any monies paid to him in error because he relied on his CoC to provide proper guidance. The grievor stated that this debt has caused him significant financial hardship, a fact which was confirmed by the grievor's unit which informed the Board that emergency funding was being sought to assist this grievor.

The Board noted that the Director Compensation and Benefits Administration concluded that the grievor was not entitled to SE benefits because the grievor's wife had lost her status as a dependant when she moved from her original location. In the Board's opinion, the grievor met the conditions set out in Compensation and Benefits Instructions (CBI) 209.997(2), which was in effect for the period in question, since he was posted to a new place of duty, his wife was a dependant normally residing with him and she did not accompany him to his new place of duty. The Board was of the view that the fact the spouse moved residences afterwards did not disentitle the grievor to the benefit; the Board pointed out that the Chief of the Defence Staff (CDS) agreed with this line of reasoning as he stated in a previous file that he found nothing within that CBI that prohibits a member's dependants from subsequently relocating, causing a loss to the member's entitlement to SE as a result. The Board concluded that the grievor was entitled to SE benefits for the entire period of his first posting (April 2007 to June 2011). However, with respect to the grievor's subsequent posting in June 2011, the Board found he was not entitled to SE benefits since he did not have a dependant residing with him at his place of duty.

In the matter of PLD, the Board noted CBI 205.45(8) stipulates that when a PLD rate exists at the location of the principal residence, the member is entitled to the lower of the PLD rate for that post living differential area or the PLD rate established for the member's place of duty. In the grievor's circumstances, the Board found that the grievor was entitled to the lower PLD rate for his place of duty which was effectively zero.

In a number of similar grievances, the Board stated that the Canadian Forces (CF) must take steps to mitigate the serious debt load imposed on its members by its own errors. In the Board's view, in cases like this, where members in good faith rely on a representation and guidance to their detriment, the CF should be accountable and responsible. The Board found that the CF, given its actions, bore full responsibility for the overpayment in this case and remission of the debt in accordance with section 23 of the Financial Administration Act (FAA) was appropriate.

The Board recommended that the CDS uphold the grievance.

The Board recommended the CDS direct that recovery from the grievor's pay be ceased immediately.

The Board recommended the CDS direct that the grievor's debt to the Crown be re-calculated on the basis that he was entitled to SE benefits during the entire period of his first posting (April 2007 to June 2011).

The Board recommended the CDS direct departmental authorities to prepare a Treasury Board submission requesting support for the remission of the debt, pursuant to section 23 of the FAA.

CDS Decision Summary

CDS Decision Date: 2013–06–24

The CDS partially agreed with the Board's findings and recommendations. The CDS was prepared to partially grant redress stating that for the period in question, the grievor was entitled to Separation Expense and any recoveries from his pay be reduced accordingly. The CDS agreed with the Board that the grievor was not entitled to Post Living Differential, but did not agree to submit a request to TB for remission of the grievor's debt. The CDS did not see that a unique DND policy on debt remission was warranted for pay errors; he rather found that remission is neither practical nor feasible for overpayments made to CF members. Nonetheless, the CDS called upon the services of ADM (Fin CS) through separate correspondence to validate the department's interpretation. In any event, the CDS found nothing in the grievor's file that would suggest the repayment of the PLD paid in error meet the definition of unreasonable.