# 2012-118 - 30-Day Entitlement to Annual Leave and Past Reserve Force Service

30-Day Entitlement to Annual Leave and Past Reserve Force Service

Case Summary

F&R Date: 2012–11–30

In 1983, the grievor enrolled in the Canadian Forces (CF) as a Reserve Force (Res F) member under the Youth Training Employment Program (YTEP), a program designed to assist in the relief of Canadian youth unemployment. Through a one-year Class C Reserve Service employment agreement, participants were provided with basic and trades training, followed by on-job assignment in the CF. Many, like the grievor, transferred to the Regular Force (Reg F) and continued to serve in the CF following that first year under the YTEP.

In September 2011, after completing 28 years of continuous service in the CF, the grievor was denied 30 days of Annual Leave because the year spent in the Res F under the YTEP was not credited towards the calculation of 28 years of consecutive service for the purpose of determining leave entitlement. Accordingly, the Board had to determine whether the grievor should have been entitled to count his Res F service under YTEP as part of the continuous 28 years of CF service required for the entitlement to 30 days of Annual Leave.

The grievor argued that the CF policies on leave were discriminatory towards Res F members as they do not credit time served in the Res F towards the calculation for 30 days Annual Leave. He also pointed out that prior Res F service is counted towards obtaining up to 25 days of Annual Leave so why is it not considered for earning 30 days of Annual Leave.

The Initial Authority (IA), the Director General Compensation and Benefits (DGCB), decided not to adjudicate the grievance, finding that the redress sought required expanding the boundary of the current policy and, since that was outside the authority of any CF officer to grant, the grievance could not be considered and determined.

The Board first addressed the position of the IA and found that the IA was mistaken in finding that the grievance could not be adjudicated solely because neither the IA nor Final Authority (FA) were in a position to grant the redress sought by the grievor. The Board found that it remained open to the FA to consider a grievance and possibly agree with a grievor that a policy or regulation may be unjust or unfair. In such a case, the FA may wish to request that the policy or regulation be changed. Therefore, although the grievor submitting the complaint may not benefit directly from the FA's adjudication, DGCB should keep in mind that grievances may lead to policy or regulation changes which may, in turn, benefit a CF member or grievors.

The Board then examined the applicable policy, Queen's Regulations and Orders for the Canadian Forces (QR&O) 16.14 and the CF Leave Policy Manual. The Board found that in the grievor's case, the QR&O was explicit: for the purpose of calculating 28 years of service, only the present continuous Reg F service and the last previous period of Reg F service can be taken into account. Any other type of military service is excluded from the calculation. Accordingly, the Board found that, in the absence of any discretion in article 16.14 of the QR&O, the YTEP service could not be considered for the purpose of calculating entitlement to 30 days of Annual Leave.

The Board also considered the grievor's claim that the regulation was discriminatory and found that the CF policies on leave were not discriminatory since the difference in treatment between Reg F and Res F members did not equate to discrimination under the prohibited grounds of the Canadian Human Rights Act. Notwithstanding that the CF policies on leave were found not to be discriminatory, the Board did find that the different treatment of former Res F service was unfair. The Board noted that a systemic recommendation had recently been issued in a previous case [2012-117] concerning this unfair and inequitable treatment and observed that it was hoped that the Chief of the Defence Staff (CDS) would direct the necessary actions to correct this issue as soon as possible.

The Board recommended that the CDS deny the grievance.

CDS Decision Summary

CDS Decision Date: 2013–06–26

The FA agreed with the Board's findings and recommendation that the grievance be denied. The FA forwarded a copy of its decision to the Chief of Military Personnel and Direction General - Compensation and Benefits with a recommandation that the issue related to the consideration of Reserve Force service for the purpose of calculating entitlement to 30 days of annual leave be resolved as soon as practical.

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