# 2014-007 - Incentive Pay Category (IPC), Pilot's Backdated Promotions to Captain, Pilot's Pay and Promotion,...

Case Summary

F&R Date: 2014–11–28

The grievor enrolled in the Canadian Armed Forces (CAF) in 2006, in the Pilot occupation. In 2011, he completed phase III of flight training, attaining Wings Standard. On the same day, he was promoted to the rank of Captain (Capt) Pilot and was granted a retroactive promotion to the rank of Lieutenant (Lt) as of 2007. Initially, his retroactive promotion to the rank of Lt resulted in an overpayment. The grievor was of the view that he should have been retroactively promoted to the rank of Capt as of his Entry into the Promotion Zone (EPZ) (at the third year mark of commissioning), and paid as a General Service Officer (GSO) until he completed phase III. The grievor argued that the practice was such when he enrolled and that there never was any formal announcement of a change of practice.

Acting as the Initial Authority (IA), the Director General – Military Careers denied the grievance. The IA confirmed that the date of the grievor's promotion to Capt was the date of completion of phase III (Wing Standard). However, referring to a Chief of Defence Staff (CDS) directive issued as a result of a grievance on the subject, the IA directed a readjustment to the grievor's retroactive promotion to Lt, resulting in correcting the overpayment as the Canadian Forces Administrative Order (CFAO) 11-6 did not permit a retroactive promotion to the rank of Capt. It does allow however a retroactive promotion to the rank of Lt. The IA referred to a CDS decision rendered on 19 April 2013 and noted that the pay and promotion policies for Pilots are still under review but found that the CDS' directives ought to be applied to the grievor.

The Committee reviewed the evolution of the Pilots' pay and promotion situation and noted that the previous practice consisting in granting retroactive promotion to the rank of Capt GSO was ended in 2009 by the Director General Military Careers (DGMC) under the assumption that the practice was put in place without proper authority. The Committee noted that the previous CDS endorsed the practice and that, as per his discretionary authority found in the Queen's Regulations and Orders, it was valid. The Committee was of the view that this practice was not a matter of a case-by-case exercise of the CDS' discretionary authority as it was applied systematically since 1999 to all trainee Pilots and it was the established practice applicable to all Pilots. Given that the CDS has full authority over promotion policies, and given that despite its research the Committee found no evidence that the previous CDS had manifested his will to end this practice, the Committee found that the DGMC had no authority to end the practice in 2009.

The Committee reviewed the CDS decision of 19 April 2013 and noted that he agreed his predecessor had the authority, contrary to what was assumed in 2009. The Committee also acknowledged the validity and reasonableness of the new approach contemplated by the current CDS in his 2013 decision and found that the current CDS can change the practice and direct amendments to the CFAO. However, the Committee found that the CDS cannot do so retroactively as to intervene with the valid exercise of his predecessor's authority, as in the grievor's case where he completed his training in 2011, two years prior to the CDS' decision. As such, the Committee found that the grievor was entitled to be retroactively promoted to the rank of Capt (and paid as a GSO) as from his EPZ date, in accordance with the previous practice endorsed and directed by the previous CDS, General Natynczyk, in the exercise of his authority as Final Authority (FA) and administrator of the CAF.

The Committee recommended that the grievor's promotion to the rank of Capt GSO be ordered effective his EPZ with the appropriate adjustments to his pay.

CDS Decision Summary

The Acting Chief of the Defence Staff (A/CDS), as FA, disagreed with the Committee's recommendation to uphold the grievance and retroactively promote the grievor to the rank of Capt GSO upon qualification as pilot (Wing Standard).

The A/CDS found that his predecessor did not change the promotion policy when he endorsed the practice of backdating pilots' promotion upon successful completion of pilot training in previous grievances. The A/CDS also stated that decisions in those grievances do not make policy and that they were only discretionary decisions. Relying on Annex A to CFAO 11-6, which allows for retroactive promotion to the rank of Lt in case of training delays caused by the CAF, the A/CDS found there is "no other provision to provide retroactive promotions for other than the rank of Lt when training is delayed for service reasons." He also found that the grievor's case was quite different from those in previous ones.

Nonetheless, he agreed with the Committee and the former CDS that the application of the CFAO resulted in an overpayments in most cases and reiterated that a promotion should not result in an overpayment. He explained that the overpayment created after the grievor's retroactive promotion to the rank of Lt in 2011 was an administrative error that would have been corrected regardless of the grievance. The A/CDS found that the grievor had been adequately compensated for the pay deficit arising from the inequity between the pay for 2Lt (DEO) and Lt GSO. He concluded that it would not be in the grievor's best interests to retroactively promote him going back to 2007, as it would again result in an overpayment. With respect to  the administrative practice, the CDS found that the promotion policy did not contain a provision for retroactive promotion above the rank of Lt, unless the CDS decided to waive them. He concluded that the argument that other pilots in previous grievances had been promoted to the rank of Capt was not compelling enough to justify waiving the promotion criteria.