# 2014-103 - Component Transfer (CT), Pay Protection, Reserve Force

Case Summary

F&R Date: 2014–11–04

On 16 June 2000, the grievor, a Non-Commissioned Member (NCM) in the Primary Reserve (P Res), transferred to the Regular Force (Reg F) as an Officer Cadet under the Regular Officer Training Plan. On 23 April 2001, the Assistant Deputy Minister (Human Resources – Military) promulgated an interim policy granting pay protection rights for P Res NCMs transferring to the Reg F via officer entry plans. In December 2011, the grievor learned that other Canadian Armed Forces (CAF) members had been granted retroactive pay protection for service prior to 2001 by the Chief of the Defence Staff.

The grievor submitted a claim and, on 26 June 2012, accepted a calculation of his reserve service by Director Military Careers (D Mil C) for the purpose of informal resolution of his claim. Nothing further transpired until 11 February 2013 when he was advised that his file, and all others like it, were on hold awaiting policy clarification. After six more months without resolution, on 21 August 2013, he submitted a grievance.

The Initial Authority (IA), the Director General Military Careers, refused to accept and adjudicate the grievance on the basis that the decision as to whether the grievor would ultimately be approved to receive his component transfer back-pay had not yet been made and, therefore, the grievor was premature in submitting his grievance.

The Committee had to determine whether the grievor was entitled to receive pay protection upon component transfer from the P Res to the Reg F.

The Committee first found, as a preliminary matter, that the CAF decision to cease approving informal resolutions before the grievor's file was processed constituted a grievable decision. It also found that while the grievor had not met the six-month time limit then prescribed by Queen's Regulations & Orders for the Canadian Forces, 7.02(1) for submission of a grievance, he had acted in good faith and pursued an administrative solution. The Committee agreed with the Final Authority decision to accept the grievance in the interests of justice and noted that the IA's dismissal of the grievance was unfortunate and not in keeping with the spirit and intent of the grievance process.

On 18 July 2014, the policy clarification referred to by D Mil C in February 2013 was promulgated by the Chief of Military Personnel (CMP), establishing that no retroactive pay protection would be provided for members who transferred prior to the 23 April 2001 interim policy date. In previous similar cases, the Committee noted that the interim policy was silent as to retroactivity and had suggested 27 March 1996 as the earliest date for retroactivity since this was when P Res NCMs transferring to the Reg F as NCMs were granted pay protection.

In light of the new CMP policy decision, the Committee assessed whether it was reasonable to set 23 April 2001 as the earliest date to apply the policy. The Committee noted that while there was a reasonable explanation for recommending the 1996 date, this date could also be challenged as arbitrary by members who had transferred prior to it. The Committee noted that it was possible that the need to attract P Res NCMs into the Reg F was not a significant priority before 2001, and that it was within the fundamental management rights of the CAF to treat groups of P Res NCMs transferring at different dates differently according to CAF requirements at the relevant time. It was therefore reasonable to select 23 April 2001 as a cutoff date.

The Committee recommended that the grievance be denied.

The Committee observed that a number of individuals had previously benefited from final grievance decisions and legally binding informal resolutions in respect of transfers which occurred before 23 April 2001, and that additional files seeking retroactivity were being held in abeyance. The Committee suggested that a strategy for handling these files would be necessary.

CDS Decision Summary

CDS Decision Date: 2015–03–16

The CDS agreed with the Committee's findings and recommendation that the grievance be denied.