# 2012-111 - Annual Leave, Lack of criteria governing the exercise of the recovery authority , Promissory Estoppel,...
F&R Date: 2012–11–30
The grievor was advised upon transfer from the Reserve Force (Res F) to the Regular Force (Reg F) in 2009 that he was entitled to 30 days of annual leave based on his service record cumulating over 28 years of service – the grievor having served in the a Reg F from 1982 to 2002 and the Res F from 2002 to 2009. During the subsequent release process in 2012, the grievor was informed that an error had been made regarding his yearly leave entitlement upon transfer, resulting in 16 days of annual being credited in excess to his entitlement over his latest period of service. The Canadian Forces (CF) withdrew the four remaining days of leave in the grievor’s leave docket, and the grievor reimbursed the 12 days of leave used, which totalled $2,092.26.
The grievor pointed out that he had trusted the experts in this area, who had told him they had obtained confirmation from higher headquarters that he was entitled to 30 days of annual leave. Since this was not an error on his part, the grievor asked for reimbursement of the amount in question.
The case was referred to the Board without a decision by the Initial Authority.
The Board began by determining whether the policies governing the granting of annual leave had been properly applied. Article 16.14 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O) stipulates that a member who has completed at least 28 years of service in the Reg F is entitled to 30 days of annual leave; the grievor’s years of service, however, were completed within the Reg F and the Res F. Paragraph 16.14(4.1)(b) specifies that years of service must be calculated from the "day following the day on which the total of the member’s present record of continuous service and last period of previous service equal 28 years". At the time of his transfer to the Reg F in 2009, the grievor’s period of continuous service in the Reg F was 20 years; the Board therefore determined that the grievor was entitled to 25 days of annual leave rather than 30 days.
As regards the recovery of leave, the Board was of the view that the CF bases its current practice on article 208.315 of the QR&O, which states that any officer designated by the Chief of the Defence Staff (CDS) for this task may order that an officer or NCM be deprived of pay and benefits. According to the Board, this is a discretionary power that may or may not be exercised in a given set of circumstances. As explained by the Board in another earlier case, in order to ensure the fair and just application of a discretionary power, that power must be exercised within predetermined parameters; according to the Board, it is not sufficient for a competent authority to assert that it applied the policies and exercised its discretion: the authority must also enumerate the reasons that led to its conclusion. The Board noted that this had not been done in this case.
On reading article 208.315 of the QR&Os, the Board concluded that the CDS was permitted, according to the legislator, to anticipate situations where it would be fair and reasonable not to recover overpaid leave. The Board pointed to the apparent lack of pre-determined parameters within which the competent authorities could equitably identify cases where the exercise of this power would or would not be appropriate. In the Board's view, the concerned authorities would benefit greatly from the development and publication of such criteria.
The Board also pointed out that situations of this nature had also arisen within the Federal Public Service and that the Public Service Labour Relations Board (PSLRB), was mandated to review this issue in the light of the principle of promissory estoppel, which, as explained by the PSLRB, prescribes two criteria for determining whether or not an amount owing should be recovered. Firstly, evidence must be adduced showing that the employer made a clear and unquivocal presentation that the employee used to make a reasonable decision and, secondly, the employee must demonstrate that in trusting this information he or she suffered prejudice.
In the present case, the Board was of the opinion that the grievor’s situation met both criteria of the promissory estoppel. In fact, the leave credits were calculated by subject matter experts. This error was maintained over three consecutive years, during which time the grievor sought and received the appropriate authorizations to make use of all his leave credits. For these reasons, the Board concluded that it was unreasonable for the CF to require reimbursement of the 16 days of excess annual leave granted to the grievor. According to the principle of promissory estoppel, the CF was not justified in claiming the cash amount and leave credits from the grievor.
The Board recommended that the CDS grant the grievance.
The Board recommended that the CDS credit the grievor with 16 days of annual leave in reimbursement.
The Board also recommended that the CDS order the development and publication of parameters governing the application of article 208.315 of the QR&Os and order the publication of a CANFORGEN for the authorities invested with discretionary powers to remind them of their obligations in exercising this authority.
CDS Decision Summary
CDS Decision Date: 2014–01–17
The CDS is in partial agreement with the Board's recommendation that the grievance be upheld, as he does not agree with the systematic reimbursement of the 16 days of overdrawn leave. The CDS cites the two promissory estoppel criteria as described by the Board: that the CAF gave a clear and unequivocal presentation on which the grievor reasonably relied and that this information was prejudicial to him, since he acted on the basis of this information and took leave to which he was not entitled. The CDS relied on the Board's analysis and concluded that article 208.315 of the QR&Os in fact provides for situations where it is fair and reasonable not to recover overdrawn leave. Consequently, the CDS determined that it would not be fair to seek reimbursement of 12 days of excess leave resulting from an error that the grievor did not commit. The CDS determined, however, that it was reasonable to have deducted the four days of annual leave remaining on his account when the leave was audited at the time of release. The CDS concluded that since there was no recurrent problem he would not support the Board's systemic recommendation to order the development and publication of criteria governing the exercise of the recovery authority provided for at article 208.315 of the QR&Os.
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