eBulletin April 2013

Contents

See our Case Summaries List or Systemic Recommendations for further information about recent and past CFGB cases.

Highlights

The grievor submitted a harassment complaint against her superior in relation to several alleged incidents. The investigators found that two out of three incidents constituted a form of harassment against the grievor. The grievor complained that the investigation had many deficiencies and that the investigators omitted some testimony that supported a finding of harassment. Additionally, she argued that she should be informed of the corrective measures being contemplated or being taken by management against her superior.

The grievor submitted a grievance stating that he had arranged a door-to-door move and that he incurred additional expenses as a result of damage caused by a fire at his new residence which delayed the closing date. In his opinion, his request for additional interim lodgings, meals and miscellaneous days to be reimbursed from core funds was reasonable in the circumstances.

The grievor, believing that she had been denied a full-time Class B Reserve Service position because of her pregnancy, sought a review of the employment selection process. The grievor alleged that her non-selection was due to her pregnancy and was discriminatory.

Case summaries

Harassment by Superior Officer

Board Findings and Recommendations

On 15 July 2009, CANAIRGEN 012/09 - The grievor submitted a harassment complaint against her superior in relation to several alleged incidents. After evaluating the allegations made in the complaint, the Responsible Officer (RO) directed an investigation to determine whether the alleged acts did take place.

In their final report, the investigators found that two out of three incidents constituted a form of harassment against the grievor. In his closing letter, the RO said that he supported all the findings in the final report.

The grievor complained that the investigation had many deficiencies and that the investigators omitted some testimony that supported a finding of harassment. Additionally, she argued that she should be informed of the corrective measures being contemplated or being taken by management against her superior.

The policy dealing with harassment complaints is provided by Defence Administrative Orders and Directives (DAODs) 5012-0, Harassment Prevention and Resolution, and by A-PM-007-000/FP-001 (the "Guidelines").

The Board found that the investigation was conducted in a fair and unbiased manner. However, it disagreed with the conclusion that one of the three incidents did not constitute harassment against the grievor.

The Board also found that the RO did not perform all his duties as indicated at section 6.6 of the Guidelines in that the RO failed to confirm that the grievor's work environment within the unit was free of harassment.

The Board recommended that the Chief of the Defence Staff (CDS) acknowledge that the behaviour of the superior towards the grievor, in terms of one additional incident, constituted harassment.

The Board also recommended that the CDS verify that adequate measures were ultimately taken to restore a harassment-free work environment and that he so inform the grievor.

In the event that the CDS was not satisfied with the measures taken, the Board recommended that the CDS direct the measures deemed necessary to restore a healthy work environment and so inform the grievor.

Final Authority Decision

The CDS concurred with the Board’s findings and the recommendation that the grievance be partially upheld. The CDS accepted the Board’s recommendation that the behaviour of the grievor's manager be recognized as harassment. The CDS also accepted the Board's recommendation that adequate measures be taken to guarantee the grievor a harassment-free workplace.


Unforeseen Events in a Door-to-Door Move

Board Findings and Recommendations

Two days before arriving at his new place of duty and taking possession of his new residence, a fire caused significant damage to the residence and the grievor could not close the sale nor move in as planned. As a result, the grievor's household goods and effects (HG&E) were placed in storage in transit (SIT) and the grievor, as well as his dependants, moved in with relatives. The grievor's request for the reimbursement of an additional 15 days of interim lodgings, meals and miscellaneous (ILM&M) expenses from core funds was denied by the Director Compensation and Benefits Administration (DCBA) on the basis that the delay in taking possession of his residence was not caused by the Canadian Forces (CF) nor its agents and, therefore, there was no entitlement to additional ILM&M days.

The grievor submitted a grievance stating that he had arranged a door-to-door move and that he incurred additional expenses as a result of the damage caused by the fire which delayed the closing date. In his opinion, his request for 15 additional ILM&M days to be reimbursed from core funds was reasonable in the circumstances.

The initial authority (IA) informed the grievor that he was entitled to one additional day ILM&M since he was on duty on the unpack day of his HG&E, which meant the delay was caused by the department. However, the IA was satisfied that the grievor had been reimbursed the maximum entitlement from core funds in accordance with the Canadian Forces Integrated Relocation Program (CF IRP) in effect at the time.

The file was reviewed and a synopsis was prepared by a member of the Director General Canadian Forces Grievance Authority staff prior to being referred to the Board. It was noted in the synopsis that, in accordance with the CF IRP in effect at the time, the purpose of ILM&M is to provide reimbursement within prescribed limits during the time when HG&E are necessarily separated from CF members for reasons beyond their control. The prescribed limits are 15 days meals and 20 nights lodgings, excluding the number of days allowed for packing/loading/cleaning at origin and unloading/unpacking at destination. The synopsis concluded that since the grievor had made every effort to effect a door-to-door move and since the reason for the delay was not within his control, he was entitled to additional ILM&M days; in this case, it was recommended that the grievor be reimbursed for six additional days lodgings and one day's meals from core; as well, it was recommended that the full cost of SIT be reimbursed as a core and custom benefit.

The Board agreed in principle with the reasoning in the synopsis and concluded that the grievor was entitled to additional ILM&M, as well as being reimbursed SIT costs. The Board's calculations, however, differed slightly from those indicated in the synopsis; a review of the file revealed that the grievor received reimbursement for five days at origin (two of which were weekend days), 13 days travelling time and three days unload/unpack at destination (which included the additional day granted by the IA). Consequently, in the Board's view, the grievor was entitled to an additional seven days lodgings instead of the proposed six days.

The Board also opined that the comments from the DCBA and the IA that no additional payment of ILM&M could be paid out of core since the department or its contracted agent did not cause the delay, is an overly restrictive interpretation of the policy; in the Board's view, the CF should have a more generous provision to allow for unforeseen events.

The Board recommended to the Chief of the Defence Staff (CDS) that the grievance be partially granted.

The Board recommended that the grievor be reimbursed for an additional seven days lodgings and two days meals from core funds in addition to the SIT costs from core and custom envelopes.

Final Authority Decision

The CDS agreed with the Board's findings and recommendation to partially uphold the grievance. Since the grievor was not to blame for the fire at his new residence, his HG&E were separated from him for reasons beyond his control. Therefore, he should have received the maximum core benefit within the limitations of Chapter 5 of the CF IRP 2008 Directive.


Discrimination in Job Selection Process

Board Findings and Recommendations

The grievor, believing that she had been denied a full-time Class B Reserve Service (Cl B Svc) position because of her pregnancy, sought a review of the employment selection process.

The Initial Authority (IA), the Formation Commander, denied the grievance on the basis that the grievor had been given equal opportunity and consideration. The IA concluded that, although the grievor and one other candidate also met the minimum requirements of the position, the priority for selection was given to the member with less years of service in the occupation to enhance career management.

In examining the selection criteria, the Board observed that the incumbent lacked the required Qualification Level (QL) 3 and the appropriate rank at the time the process was initiated, at the application cut-off date and on his selection date. The Board found that it was unfair to the grievor to consider and select the incumbent given he did not meet the prerequisites as of the application cut-off date.

The Board observed that there was little difference between the grievor and the incumbent in terms of trade experience and noted that the grievor’s terms of service expire in 2051 and the incumbent’s in 2019. Although the Board agreed with the IA that it may be reasonable, under certain circumstances, to select and develop a junior member for the needs of the service, in this case, the Board found that the grievor appeared to offer more career development potential than the incumbent.

The grievor alleged that her non-selection was due to her pregnancy and was discriminatory. The Board found no evidence that such was the case. However, in attempting to investigate this matter, it became evident that the formation had failed to maintain records of the selection process. There were no interviews or tests, nor was there a written explanation as to why the incumbent was selected over the other two applicants. The Board found that the selection process lacked transparency and fairness and observed that empowering Career Managers to fill vacant positions without running an open selection process requires guidelines and appropriate record keeping to guard against potential abuses.

The Board concluded that the selection process was flawed but could not determine whether the grievor would have been selected had it been otherwise. Therefore, the Board recommended that the final authority partially uphold the grievance by directing the formation to conduct a new selection process for the three original applicants and to offer the position to the winner for a period of three years. The Board also recommended that the formation be directed to establish appropriate guidelines for the administration of career-managed employment selections.

Final Authority Decision

Pending.

Statistics

Category of grievances received since 2011 as of June 30, 2013
Categories of grievances 2011 2012 2013
Financial 40% 47% 36%
General 49% 36% 43%
Release 7% 11% 19%
Harassment-Discrimination 3% 5% 2%
Distribution of the Findings and Recommendations (F&R) by category of grievance for the period between January 1, 2013 and June 30, 2013
CFGB F&Rs Financial                                 General                                          Harassment-Discrimination Release                                               
No jurisdiction 0 0 0 2
Grant 13 7 0 0
Partial Grant 4 9 1 1
Denial 7 17 3 3
Chief of the Defence Staff (CDS) decisions received between January 1, 2013 and June 30, 2013
  CDS agrees with Committee's F&R CDS partially agrees with Committee's F&R CDS does not agree with Committee's F&R
  70% 24% 6%

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