# 2019-167 Pay and Benefits, Discrimination, Medical Employment Limitation, Pregnancy, The Administration and the Eligibility Criteria for the Land Duty Allowance in the Canadian Forces

Case summary

F&R Date: 2020-10-20

The grievor argued that the new disentitlement criteria in the Compensation and Benefit Instructions (CBI) Chapter 205 (Allowances for Officers and Non-Commissioned Members) from the Land Duty Allowance (LDA) was discriminatory on the basis of sex due to pregnancy under the Canadian Human Rights Act.

The Director General Compensation and Benefits, acting as the Initial Authority (IA), determined that the grievor's LDA was ceased on the 181st day following the assignment of the grievor's temporary medical category (TCat) for pregnancy in accordance with policy. The IA concluded that the grievor's disentitlement from the LDA was not discriminatory and did not afford redress.

The Committee found that the grievor demonstrated that her situation met the criteria of a prima facie case of discrimination. However, the Committee then found that the grievor's medical employment limitations (MELs) related to her pregnancy were justified bona fide occupational requirements and were not discriminatory.

The Committee also found that the disentitlement criteria under CBI 205.15(2) had a rational connection with its intent and was not discriminatory. Given that the grievor was serving for more than 180 days under a TCat or MEL that prevented her from being exposed to the field environment, the grievor's disentitlement occurred in accordance with policy.

The Committee recommended that the Final Authority not afford the grievor redress.

FA decision summary

The Chief of the Defence Staff (CDS) agreed with the Committee's recommendation to deny the grievance. He found that the cessation of the grievor's entitlement to the land duty allowance after 180-days of MELs due to her pregnancy was an adverse treatment based on a protected ground of discrimination. The situation meets the prima facie threshold of discrimination; but that the MELs imposed constituted a justified bona fide operational requirements. The CDS concurred with the Committee that the disentitlement was therefore not discriminatory. He found that the grievor was not entitled to the land duty allowance after the 180-day limitation stated in CBI 205.15(2)(c). The CDS found that the grievor had to reimburse the overpayments, as provided by Queen's Regulations and Orders for the Canadian Forces 203.04 (overpayments). In response to the grievor's argument that the CANARMYGEN announcing the disentitlement provision left the decision to the Commanding Officer and creates unfairness in the application of CBI 205.15(2)(c). The CDS found that CAF policies on the administration of pregnant members may be inconsistently applied by local commanders across the CAF, contributing to inequity. He therefore directed the Chief military personnel (CMP) to conduct a fulsome GBA+ assessment of the CAF's current allowance disentitlement practice for pregnant members. Pending the results of this assessment, the CDS further directed the CMP to consider the development of a nationally-consistent policy rather than leaving it to local commanders to apply in an inconsistent fashion.