# 2012-115 Pay and Benefits, Incentive Pay Category (IPC), Overpayment, Pilot, Pilot's Backdated Promotions to Captain, Recovery of Overpayment/Debt Write-Off

Case Summary

F&R Date: 2012–12–27

The grievor enrolled in the Regular Force (Reg F) as an untrained pilot in 1992 and, in 1999, following three years in the ranks of Second Lieutenant and Lieutenant, he was promoted to Captain (Capt) General Service Officer (GSO). One year later, on the anniversary of his promotion to Capt, he received a pay increase, from Capt GSO incentive pay category (IPC) basic to Capt GSO (IPC) 1. One month later, in June 2000, the grievor obtained his Wings Standard at which time he was slotted into the Pilot pay table at IPC 1. In November 2011, the Chief Military Personnel promulgated CANFORGEN 209/11- AMENDMENT TO RATE OF PAY AND PAY INCREMENT ANNIVERSARY DATE FOR CAPTS IN THE PILOT OCCUPATION to provide clarification regarding the rate of pay and pay increment anniversary dates for Capts in the Pilot occupation. As a result of this CANFORGEN, the grievor's pay was audited and he was advised that he had been paid incorrectly since his Wings graduation when, according to the audit, he should have been slotted into the Pilot pay table at IPC basic rather than retain his IPC 1 level. The grievor was subsequently required to reimburse the overpayment at which point he submitted his grievance.

The issue before the Board was whether the Canadian Forces correctly calculated the grievor's IPC anniversary date and pay level in the rank of Capt (Pilot).

The grievor argued that his circumstances were the same as those of certain Pilots who had been granted redress by the Chief of the Defence Staff (CDS) earlier in 2011. In his view, the CDS clearly stated and explained that, because the rules on qualifying time and performance standards criterion were not clear prior to 2004, time in rank as a Pilot untrained counts as qualifying time for incentive purposes.

The Board had previously reviewed and addressed the issue of IPC anniversary dates for Pilots in a number of grievances [see summaries for Board files 2010-007 and 008]. In each case, the central issue was the interpretation of Compensation and Benefits Instructions (CBI) 204.015 (Incentive Pay). This CBI, which was in effect at the time the grievor achieved Wings Standard, identified the two criteria necessary to obtain the next IPC: the need to meet performance standards and the completion of 12 months of qualifying service. In these cases, the Board found that neither CBI 204.015 nor its amplifying instructions, Canadian Forces Administrative Order (CFAO) 204-2, define performance standards or set qualification benchmarks.

The CDS, in his 2011 grievance decisions, agreed with the Board, indicating that CFAO 204-2, paragraph 3, clearly states that the only factors to be considered when evaluating whether a member has met the “performance standards” are job performance and personal effectiveness. He wrote that if a member meets the performance requirements and standards required in the job, then incentive pay can be granted upon the completion of 12 months of qualifying service. The CDS was also clear in stating that simply moving from the GSO pay table to the Pilot pay table did not mean that qualifying service as a GSO could not count towards the next IPC. Accordingly, the Board found that CANFORGEN 209/11 offers an incorrect interpretation and application of CBI 204.015 and CFAO 204-2 and one which was inconsistent with the CDS' own finding that there was no requirement to link the start of a member's qualifying service to when he begins being paid as a qualified Pilot under CB1 204.215. In addition, the Board pointed out that a CANFORGEN cannot restrict or expand a regulation without Treasury Board approval. Therefore, the Board found that CANFORGEN 209/11 should be cancelled.

The Board then applied the provisions of CBI 204.015 to the grievor's case and could find no evidence to suggest that the grievor's job performance was ever less than acceptable. Indeed, the fact that he was promoted to Capt GSO is strong evidence that his job performance over the period was completely acceptable.

The Board found that the grievor's qualifying service started on 1 May 1999, the day he was promoted to Capt, making the original date of promotion to the rank of Capt the applicable IPC anniversary date. The evidence showed that the grievor had reached the pay level of Capt GSO IPC 1 as of 1 May 2000. Therefore, upon achieving Wings Standard on 2 June 2000, his pay should have been that of a Capt Pilot IPC 1 rather than Capt Pilot IPC basic.

The Board recommended that the CDS direct that the grievor's pay be restored to that of Capt Pilot IPC 1 effective the date he obtained his Wings Standard, that any overpayment recovered from the grievor be returned to him and that CANFORGEN 209/11 be cancelled.

CDS Decision Summary

CDS Decision Date: 2013–06–24

The CDS agreed with the Board's recommendation that the grievor's PI anniversary date be amended to reflect the date the grievor was promoted to Capt GSO on 1 May 1999 and that he be granted full credit for his qualifying service on entry into the pilot pay table. Therefore, the CDS directed that the grievor be paid as Capt pilot PI 1 effective 2 June 2000, the date he completed his wings standard training, with his next PI due on 1 May 2001. However, the CDS did not agree with the Board's recommendation that CANFORGEN 209/11 be cancelled as he determined that there was nothing wrong with the content of the message as it correctly reflects his predecessor's intent and that the problem lay with the incorrect interpretation of the message by Departmental staff. As a result of discussions between DGCFGA and DGCB, DGCB will be reviewing the pay records of all pilots who were promoted to Capt GSO before 1 August 2004 to apply the contents of the message in keeping with his predecessor's direction and the recommendations of the Board.