# 2014-109 - Imposed Restriction (IR), Separation Expense (SE)

Case Summary

F&R Date: 2014–12–30

The grievor had been posted to Ottawa on imposed restriction (IR) status while his dependants and household goods and effects ((D) HG&E) remained in a different geographical area. While still in receipt of separation expense (SE), he was posted overseas unaccompanied with the movement of (D) HG&E prohibited. Upon completion of his posting outside Canada, the grievor was again posted to Ottawa. The posting message again specified that movement of his (D) HG&E was prohibited, and that the provisions of the Canadian Forces Integrated Relocation Program (CF IRP) did not apply to his posting.

The grievor requested, and was authorized, IR by his Career Manager. However, when the grievor applied for SE benefits he was informed that in accordance with the relevant policy, he had no entitlement to SE given that he had been posted from a place of duty outside Canada to a new place of duty within Canada. The grievor argued that it was unfair that he was obliged to maintain two residences, his principal residence containing his (D) HG&E, and his rental accommodations in Ottawa. As remedy, he requested that he be granted SE benefits for the period of his IR.

There was no Initial Authority (IA) decision because the grievor refused to grant the Director General Compensation and Benefits the 12-month extension requested to permit an IA response.

The Committee had to determine whether the grievor should have been required to maintain two separate residences at his own expense as a result of his prohibited posting to Ottawa.

The applicable policy for SE benefits, the Compensation and Benefits Instructions (CBI) 208.997(3) – Separation Expense, amended effective 1 January 2012, provides the conditions under which there is an entitlement to SE benefits. The Committee found that since the grievor's immediate former place of duty was outside Canada, he did not meet all of the conditions and, therefore, was not entitled to SE benefits as a result of his prohibited posting to Ottawa.

Although the Committee recognized the Canadian Armed Forces (CAF) requirement to post the grievor so as to meet its operational needs, it also concluded that by prohibiting the grievor from relocating his family to Ottawa upon his return to Canada, the CAF effectively placed the grievor in a situation where he could not reunite with his family under the same roof. In the Committee's view, the grievor was forced to incur the extraordinary expense of acquiring local Ottawa accommodations while also maintaining his principal residence in a different geographical location. Given that he was offered no choice in the matter, the Committee found that it was not reasonable that the grievor should bear those additional costs.

The Committee noted that under CBI 208.801(2) (Ministerial approval of relocation expenses), the Minister may approve reimbursement of all or part of the expenses reasonably incurred by the grievor that arose directly out of his relocation, and which are not specifically provided for in Section 8 of the CBI. As such, the Committee recommended that the Chief of the Defence Staff (CDS) grant redress by invoking Ministerial authority to reimburse the grievor for his real and actual accommodations expenses, incurred during his period of IR in Ottawa as a result of his prohibited posting. The Committee also recommended that the reimbursement not exceed the amount that would otherwise have been reimbursed had the grievor been approved to receive SE benefits during the same timeframe.

CDS Decision Summary

The Final Authority (FA) found that although the grievor had been treated in accordance with policy, the policy was unreasonable. He disagreed with the Committee's recommendation to rely on Ministerial authority under Compensation and Benefits Instructions 208, Section 8 Relocation Expenses to reimburse the grievor's accommodations expenses in Ottawa. The FA found that a prohibited posting is a relocation but not a move, and therefore Section 8 did not apply to the grievor. He noted that while the policy has now been corrected, he cannot grant redress retroactively.