# 2014-068 - Class B Reserve Service, Reserve Force Retirement Gratuity

Case Summary

F&R Date: 2014–07–31

After serving for a number of years in the Primary Reserve, the grievor transferred to another sub-component of the Reserve Force, the Cadet Organizations Administration and Training Service (COATS), where he served consecutive periods of Class B Reserve service.

On 30 March 2012, CANFORGEN 062/12 announced that the accumulation of Severance Pay and Reserve Force Retirement Gratuity (RFRG) would cease, and that the Compensation and Benefits Instructions (CBI) 204.40 and CBI 204.54 were cancelled and replaced by a new CBI 204.40, “Canadian Forces Severance Pay (CFSP)”.

The grievor explains that he was previously entitled to RFRG benefits under the provisions of CBI 204.54, because he met the requirements of the deeming provision found in CBI 204.54(18). However, with the introduction of the CFSP benefit, the grievor noted that the deeming provision no longer existed in CBI 204.40 and that as a consequence, he lost his accrued entitlement to RFRG. The grievor contends that this is unfair and seeks the re-establishment of his accrued severance entitlement.

The Initial Authority (IA), the Director General Compensation and Benefits, took the view that the grievance could not be resolved through the grievance process and did not consider and determine the merit of the grievance.

The Committee had to determine whether the grievor should be entitled to receive the CFSP in recognition of his accrued RFRG benefit.

The Committee found that the grievor would have been entitled to receive the RFRG benefit under the previous policy. However, because CBI 204.40 no longer contained the “Deemed Service” provision previously contained in CBI 204.54(18), and further noting that CBI 204.40(1) (Definitions) specifically defined a member as an officer or non-commissioned member who serves in the Regular Force or P Res Force, for the purposes of entitlement to CFSP benefits, the Committee concluded that the grievor, as a member of the sub-component COATS, was not eligible to receive the CFSP.

While the findings and recommendation were not favorable to the grievor, the Committee found that he had nonetheless been aggrieved, noting that his situation was very similar to that of case 2014-066, where the Committee had concluded that COATS members had been treated unfairly and differently than all other Canadian Armed Forces (CAF) members and Federal Government employees with regards to Severance Pay type benefits.

In file 2014-066, the Committee explained that for public servants, Executives, Governor-in-Council appointees, CAF members (excluding those serving with the COATS) and others, the accumulation of Severance Pay type benefits had progressively ceased across the Federal Government. The Committee observed that these employees were not stripped of their accrued entitlements. They were simply no longer permitted to accumulate new entitlements.

As it considered their situation to be fundamentally unfair, the Committee recommended the development of a solution by which the entitlement to payment in recognition of the accrued RFRG benefit be reinstated to all members of the COATS which lost it on the coming into effect of CBI 204.40.

The Committee considered that the grievor's situation would be remedied through the development of the recommended solution.

FA Decision Summary

The CDS agreed with the Committee's findings that the grievor had been aggrieved but that has no entitlement to receive the CFSP benefit under the current policy, and that the he has no authority to grant the redress sought. The CDS then explained that the purpose of the new CBI 204.40 was to terminate the accumulation of eligible years of service for the purposes of CFSP but the intent was to retain the vested right to the benefit. The CDS was not aware why the deemed service clause was removed but did not “espouse to the notion that such an oversight was intentional”. He noted that the fact that CBI 204.40 was not published prior to its effective date led to the grievor's loss of benefits and inability to alter her service to remain eligible. He expressed his conviction that this was not the goal of the new CBI. The CDS agreed with the Committee's systemic recommendation and he directed the CMP, in conjunction with the TB, to develop a solution that will allow those members who lost their entitlement to an RFRG as a result of the deletion of the "deemed service" clause, to regain their eligibility for the CFSP. CMP should equally consider the aspect of retroactivity in this matter.