# 2012-054 Pay and Benefits, Overpayment, Pay, Recovery of Overpayment/Debt Write-Off, Recruitment

Case Summary

F&R Date: 2012–11–02

The grievor enrolled in the Regular Force (Reg F) under the Regular Officer Training Plan (ROTP) in 2006 and was authorized, and paid, a rate of pay applicable to an Officer Cadet (OCdt) with former service. It was later determined that the grievor was not entitled to this rate of pay. Some 30 months later, his pay was reduced and the overpayment was recovered in a precipitous manner. The grievor asked for the reinstatement of the original rate of pay that he had been promised and that the recovered funds be returned.

The Board therefore had to examine whether the grievor received the appropriate rate of pay during his ROTP training period, whether he was promised a higher rate of pay at enrolment and, whether the recovery of approximately $33,000 from his pay was justified and administered appropriately.

The grievor’s initial rate of pay was verified as being correct in 2006 and again in May 2008. However, the rate of pay error was eventually discovered later in 2008, at which time his Enrolment, Transfer, Promotion Instruction (ETP Instr) was amended to reflect a lower rate of pay as an OCdt with no former service. The revised ETP Instr specified that no recovery action was to take place pending further direction from the Director General Compensation and Benefits. Nevertheless, the pay deductions were processed shortly thereafter without consulting or alerting the grievor.

The Initial Authority (IA), the Chief of Military Personnel, denied the grievance, stating that he considered that the grievor had been treated according to policy and that the original rate of pay offered was in clear violation of the recruiting directives.

The Board agreed with the IA that the grievor was not entitled to a rate of pay based on former service as he had none and, therefore, that the revised rate of pay was correct.

However, the Board then reviewed the grievor’s case as a possible breach of contract, noting that there was no reason to disbelieve the grievor when he stated that he would not have joined the Reg F had he initially been offered the lower rate of pay. Having fulfilled his promise by joining the Canadian Forces (CF), the grievor submitted that the CF should do the same and honour the pay rate it offered him to join.

In reviewing recent and relevant jurisprudence, the Board was of the view that commitments made by the CF prior to a person entering into service with the CF may form a separate contract with the Crown, and that respecting such pre-employment agreements was not inconsistent with Court decisions. The Board noted that this commitment was not made to a serving CF member but rather it was a pre-enrolment promise made to the grievor while he was still a civilian.

The Board found that the grievor would have an excellent case in breach of contract before the courts and that the CF has a legal and moral obligation to provide redress.

The Board recommended that the Chief of the Defence Staff uphold the grievance and forward the file to the Director Claims and Civil Litigation, with support and explanation, as a potential claim against the Crown.

CDS Decision Summary

CDS Decision Date: 2014–09–29

The CDS agreed with the Committee's recommendation that the grievance be upheld but he disagreed with the recommended remedy. Although the CDS agreed to forward the file to DCCL for consideration, he did not agree with the Committee that the grievor's circumstances were subject to contract law. The CDS was of the view that the Canadian law is clear that a CAF member does not have an employment contract with the Crown: it is a unique relationship in which a prospective member makes a unilateral commitment to serve at the pleasure of the Crown and in which the Crown assumes no obligations. The CDS forwarded the grievor's file to DCCL where it was apparently settled in accordance with the Treasury Board Directive on Claims and Ex Gratia Payments.