eBULLETIN - April 2017

Contents

Highlights

Case Summaries

Statistics

Mailing List

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

Highlights

Entitlement to Shelter Assistance (case no. 2014-114)

The grievor was posted abroad for a three-year tour. His two dependants remained in Canada to continue their education. The grievor was entitled to receive shelter assistance under the Foreign Service Directive 34 - Education Allowance. However, during the third year of his posting he was advised that the shelter assistance has been modified to exclude mortgage and condominium fees. The grievor contended that he should have received the full benefit for the duration of his three-year posting.

Promotion while on Parental Leave (case no. 2016-126)

The career manager indicated that the grievor was no longer a part of his active posting season (APS) posting plot because he would be away on parental leave and therefore not able to fill a vacancy. The grievor contended that this constituted discrimination based on family status. He requested as redress that the policy be amended to eliminate potential discrimination, and that his promotion and posting date be effective during the APS.

Points for the Second Official Language and the Promotion Selection List (case no. 2016-152)

The grievor submitted that the Promotion Selection Board's miscalculation of the points to be awarded for her second official language profile resulted in her being incorrectly positioned on the annual Promotion Selection List and adversely affected her opportunity for promotion. As redress, the grievor requested that her score and merit standing be reviewed and if appropriate, she be promoted retroactively.

Case Summaries

Entitlement to Shelter Assistance

Committee Findings and Recommendations

The grievor was posted abroad for a three-year tour. His two dependants remained in Canada to continue their education and lived in a condominium purchased by the grievor. As a result, the grievor was entitled to receive shelter assistance under the Foreign Service Directive (FSD) 34 - Education Allowance. However, during the third year of his posting he was advised at the beginning of the school year that the shelter assistance has been modified by a working group within the National Joint Council (NJC). The allowance was significantly decreased to exclude mortgage and condominium fees.The grievor contended that he should have received the full benefit for the duration of his three-year posting, as discussed with the experts in this field before being posted abroad. Further, the grievor claimed that the short notice of the change in benefit provided him with no options to mitigate his losses.

The initial authority (IA), the Director General Compensation and Benefits, denied the grievance. He stated that a NJC working committee approved the new direction and that he was bound by the regulations governing Education Allowance.

The Committee had to determine whether the grievor was entitled to the same level of shelter assistance for the duration of his posting, whether the reduced benefit during the third year was in conformity with the applicable NJC FSD and whether reasonable notice was provided to the grievor that his benefits would be reduced.

The Committee reviewed the process under which FSD 34 was modified and found that the working group had the authority to issue the new guidance, which was consistent with the benefits framework for FSD 34. The Committee noted that benefits can change over time and the grievor was not promised three years of the shelter allowance benefit at the higher rate for the duration of his posting. The Committee found that the change to eligible shelter related expenses was rational and consistent with the purpose of FSD 34.

However, the Committee found that the Canadian Armed Forces (CAF) did not notify the grievor of the changes and could have done so months before the grievor was officially advised. Despite the CAF having a member on the working group, who was present at the meeting when the changes to FSD 34 were made, there was no implementation plan made by the CAF to permit affected military members to adjust to the reduction in benefits. The Committee found that the CAF treated the grievor unfairly by imposing a substantial, poorly timed reduction in shelter assistance benefits on him, without notice, and by the lack of an implementation period to allow him and his family to prepare for the impact of the reduction.

The Committee recommended that redress be sought outside the CAF grievance process, given that shelter assistance is governed by a NJC policy. The Committee further recommended that the Chief of the Defence Staff acknowledge that the CAF bears some responsibility for the unreasonable delay and lack of implementation of the new procedure for shelter assistance, and refer the case to the Director Claims and Civil Litigation (DCCL) with his support.

Final Authority Decision

While the final authority (FA) expressed that it is regrettable that the grievor was not informed of the change in a timely manner, he believes that, had he followed-up with the Dependant Education Manager Officer – Europe, he would have been told about the changes and the reasons for the delay. The FA disagreed with the Committee's finding that the CAF should bear some responsibility for the grievor's financial hardship, and furthermore, he found that he has no authority to accept the liability. Therefore, the FA did not agree with the Committee's recommendation that the grievor's case be referred to DCCL with his support. 

Promotion while on Parental Leave

Committee Findings and Recommendations

The career manager indicated that the grievor, a lieutenant (Navy), was no longer a part of his active posting season (APS) lieutenant commander (LCdr) posting plot because he would be away on parental leave and therefore not able to fill a vacancy. The career manager stated that the grievor would only be considered for promotion and posting in December of that year. The grievor contended that the policy set out in CANFORGEN 073/06 – Effective Promotion Date Policy essentially dictated that he could not be included in the posting plot because a promotion is dependent upon being posted to a LCdr position. He contended that this practice constituted discrimination based on family status. He requested as redress that the policy be amended to eliminate potential discrimination, and that his promotion and posting date be effective during the APS and not in December.

Acting as initial authority (IA), the Director General Military Careers denied the grievance. The IA stated that the grievor was unavailable for posting and employment in a higher ranked position because he elected to take parental leave, and the career manager administered his posting plot with respect to service requirements, as well as Canadian Armed Forces (CAF) members who were available to fill the empty positions. He stated that this was the reason why the grievor was bypassed on the promotion list, and that the grievor was treated in accordance with the promotion policies.

The Committee reviewed the CANFORGEN, the Director Military Careers Standard Operating Procedure 004 and the Military Human Resources Records Procedures; the latter two stating that if a CAF member is on leave without pay for maternity or parental leave, they are not entitled to promotion. The Committee noted that the career manager made it clear that the grievor was not part of the APS posting plot exclusively because he was taking parental leave. The Committee reviewed the Canadian Human Rights Act (CHRA) and determined that the practice of delaying a promotion because a military member is on parental leave constituted a prima facie case of discrimination based on the prohibited grounds of family status. This determination was based on the fact that this practice negatively affected the grievor compared to his peers, and constituted an adverse differential treatment in employment. The Committee suggested that the final authority (FA) amend the relevant policies to ensure that they are not contributing to discrimination of CAF members.

The Committee recommended that the grievor be promoted to the rank of LCdr during the APS as opposed to 1 December.

Final Authority Decision

The FA agreed with the Committee's finding that the practice of delaying promotion for those who are on maternity or parental leave is discriminatory under the ground “family status.” Therefore, the FA agreed that the grievor has been discriminated against in contravention of CHRA subsection 3(1). The FA agreed with the Committee's recommendation that the grievor's effective date promotion to the rank of LCdr be changed and that the associated pay and benefits be adjusted accordingly.

It was the FA firm belief that the CAF promotion policies and standard operating procedures (SOP) that the lA used to render his decision are discriminatory on the grounds of sex and family status and, therefore, in contravention of CHRA subsection 3(1) and 3(2): these policies need to be reviewed and changed to conform to all aspects of the CHRA. The FA noted that the Chief Military Personnel has recently provided interim direction to revise the promotion policy for CAF members on maternity or paternity leave.

Points for the Second Official Language and the Promotion Selection List

Committee Findings and Recommendations

The grievor submitted that the Promotion Selection Board's miscalculation of the points to be awarded for her second official language (SOL) profile resulted in her being incorrectly positioned on the annual Promotion Selection List and adversely affected her opportunity for promotion. The grievor maintained that although only one component of her SOL testing had expired, the scoring matrix penalized her as if she had two expired components. As redress, the grievor requested that her score and merit standing be reviewed and if appropriate, she be promoted retroactively.

The initial authority (IA) found that although the grievor's SOL score was initially incorrect, it had been appropriately corrected via secretarial resolution. The IA confirmed that this had resulted in the grievor moving up on the Promotion Selection List, however, she was not high enough to be eligible for promotion. The IA concluded that the grievor had been treated fairly and denied the grievance.

The Committee was satisfied that the grievor had notice of the importance placed on SOL competency in the Canadian Armed Forces. The Committee was further satisfied that the grievor knew or should reasonably have known that the onus was on her to keep her SOL evaluation up to date. Upon review, the Committee found that the grievor's SOL score was correctly awarded, via secretarial amendment, and that she was given all due consideration for merit list ranking. The Committee found it unfortunate that the grievor had failed to update her SOL profile prior to the Selection Board proceedings as this was the reason that she had not been promoted to date. Accordingly, the Committee recommended that the grievance be denied.

Final Authority Decision

The final authority (FA) agreed with the Committee's findings and recommendation that the grievance be denied. The FA agreed that it was clear that the grievor was responsible for maintaining her second language profile and that she had not kept it up to date. He also found that the secretarial amendment had correctly scored her profile in accordance with policy. He explained that since the new policy was implemented in 2010, the three competencies of reading, writing, and oral expression are no longer scored separately; instead the profile is scored as a whole. The grievor's profile as a whole was not complete due to her expired reading comprehension score. The matrix therefore allocated her only one point per board member for her oral proficiency and no points for her written comprehension. The FA recognized that this might seem harsh, but noted that this policy had successfully been in place since 2010 and that he saw no reason to update it.

Statistics

Note: Totals may not add to 100% due to rounding.

Note: Totals may not add to 100% due to rounding.