# 2014-034 - Breach of Contract/Promise, Enrollment Offers, Entry into the Promotion Zone

Case Summary

F&R Date: 2014–07–31

The grievor accepted an offer to enrol in the Canadian Armed Forces (CAF) through the Direct Entry Officer (DEO) Plan. The Enrolment Instruction message indicated that the grievor would enter the promotion zone to Captain two years after promotion to Lieutenant. The grievor was later informed that the date of her entry to promotion zone was incorrect and that the minimum time in rank required in her specialist occupation for promotion to Captain was three years.

The grievor claimed that her decision to enrol into the CAF was well-thought-out, as she would earn significantly less than her civilian salary at the time. She maintained that she would not have agreed to enrol into the CAF had she been informed that she had to complete a minimum of three years in the rank of Lieutenant in order to enter the promotion zone to Captain.

There is no Initial Authority (IA) decision on file as the IA was unable to render a decision within the prescribed time limit and the grievor did not grant an extension.

The Committee had to determine whether the CAF erroneously promised, at the time of making an enrolment offer to the grievor, that she would enter the promotion zone to Captain two years after promotion to Lieutenant. If so, the Committee had to determine whether there is an appropriate remedy available through the grievance process.

The Committee found that the minimum time in rank required for promotion to Captain in the grievor's occupation was three years and concluded that the mistake in determining the appropriate date for entry into promotion zone was clearly that of the Canadian Forces Recruiting Group. The Committee was also satisfied that the grievor's eligibility to enter the promotion zone two years after her promotion to Lieutenant was a significant enticement for the grievor to leave her civilian employment and enrol into the CAF. The Committee concluded that the grievor had been aggrieved.

Noting that the grievor's had two years of previous civilian experience in what was now her military occupation, the Committee considered whether the Chief of the Defence Staff (CDS) should exercise his discretion and either grant Time in Rank credits or waive the requirement of three years in the rank of Lieutenant.

Upon review, the Committee concluded that military value could be attributed to the grievor's previous civilian experience. The Committee found that the grievor's employment, and the experience she gained during her two years, was at minimum equivalent to the experience she would have gained in her first year as a very junior officer in the CAF.

Since the DEO plan is designed to best utilize one's education, experience and training, the Committee recommended that one of the three years' Time in Rank required in Canadian Forces Administrative Orders 11-6 Annex B, Appendix 1, be waived or that the grievor be granted one year of seniority in the rank of Lieutenant upon her enrolment to recognize her previous civilian experience and, that the grievor be promoted to the rank of Captain two years after her promotion to Lieutenant.

Should the CDS disagree with the above recommendations, given that there is no doubt that the grievor was the victim of an error on the part of the CAF and that the only possible remedy may be financial compensation, the Committee recommended that the CDS acknowledge the error and submit the case for review by the Director Claims and Civil Litigation to determine whether the grievor's situation meets the criteria for financial compensation.

FA Decision Summary

The CDS did not agree with the Committee's recommendation either to waive the criteria for promotion or, in the alternative, that resolution of the grievance be sought outside of the grievance process as a claim against the Crown. The CDS recognized that the grievor was provided with erroneous information and accepted the grievor's assertion that he would not have enrolled, but because the grievor was no longer a CAF member and to retroactively direct that the promotion standards be waived in that context would present significant administrative difficulties. Furthermore, the CDS did not agree with the Committee's assertion that DAOD 5002-2 (DEO Plan) provides the flexibility to offer alternative terms of service or progression plans based on the situation of individual applicants: rather, the directive's language demonstrates an explicit intent that the promotion of DEPs should follow the scheme laid out in CFAO 11-6, which requires that a member be at least three years in rank before promotion to captain. The CDS forwarded the grievor's file to DCCL, and an ex-gratia payment was accepted by the grievor as settlement of case.