eBulletin January 2013

Contents

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

Highlights

The grievor submitted a request to de-link rations and quarters (R&Q) which was denied on the basis that he did not have access to a "full kitchen facilities" since there was no traditional stove in the barracks kitchenette area. The grievor explained that he had access to all the necessary countertop appliances to replace a traditional stove, and, as such, his request to de-link R&Q should be granted.

The grievor was denied by the Director Compensation and Benefits Administration reimbursement of certain expenses related to her move and sale of her house. In particular, the grievor lost money on the sale of her house and feels she should be entitled to home equity assistance. She is also asking for reimbursement of storage in transit fees and mortgage loan insurance benefits.

The grievor, a Regular Force member, was denied move benefits on his posting from one “place of duty” to a new and adjacent one because his principal residence was already located within the geographical boundaries of his new place of duty while his actual worksite was in the former place of duty. The grievor argued that the commute to his new worksite was excessive and sought authority for a move at public expense citing paragraph 4 of Canadian Forces Administrative Order 209-28.

Case summaries

De-linking of Rations and Quarters

Board Findings and Recommendations

On 15 July 2009, CANAIRGEN 012/09 - Linking of Rations and Quarters – was promulgated directing that, for all Wings, rations and quarters (R&Q) were to be linked effective 1 September 2009. The CANAIRGEN indicated that requests to de-link R&Q would be considered on a case by case basis, and only where full kitchen facilities were available in quarters.

The following month, the grievor submitted a request to de-link R&Q, explaining that his barracks contained all of the appliances needed to prepare nutritious meals, that he had been providing for himself for a long time, that it was considerably less expensive than paying for rations and that he had a good track record of self-sufficiency and full compliance with expectations of cleanliness, safety and cooperation.

The grievor’s request was denied by 1 Canadian Air Division Headquarters based on an e-mail from the Director Air Personnel Management 2 explaining that full kitchen facilities included a fridge, a full-size stove and a place to eat and clean up. She added that a bar fridge and a microwave in a bedroom was not considered a kitchen for the purpose of the policy.

The grievor argued that his barracks provided a kitchenette on each floor including different sized appliances as well as areas to prepare and eat meals safely. He also stated that the necessity for a full-size stove was not mentioned in CANAIRGEN 012/09 and that he had access to counter-top appliances that could replace the many functions of a full-size stove.

The initial authority, the Chief of Air Staff, denied the grievor's request for an exemption to the R&Q linking policy, stating that the grievor did not meet the requirements for special consideration as described in the CANAIRGEN.

The Board was of the view that the countertop appliances available to the grievor, while smaller than a conventional stove, satisfied the definition of a stove. Consequently, for the purpose of de-linking R&Q, the Board found that the grievor's situation met the requirements of CANAIRGEN 012/09 by having access to full kitchen facilities.

The Board noted that although the policies offer the possibility for Canadian Forces (CF) members to de-link R&Q, they lacked criteria on which to base de-linking requests. It appeared to the Board that de-linking requests, including the grievor’s, had been denied for safety, hygiene and health reasons. The Board acknowledged these as valid concerns but found they did not justify the denial of the requests to de-link R&Q in accordance with the policies.

The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance.

Final Authority Decision

The CDS partially agreed with the Board's recommendation to uphold the grievance. In fact, the CDS directed that CFAO 36-14 paragraph 5 be rescinded effective the date of his decision on the present case, which means that the mandatory linking of R&Q shall cease starting that date. However, the CDS was not prepared to authorize reimbursement of rations retroactively beyond the date of his decision. Consequently, the grievor was given the choice to de-link from rations on the prescribed date or to prepare some meals in quarters, but their storage and preparation will have to be in accordance with locally published policy.

The CDS agreed with the Board's systemic recommendation regarding the issue identified with the current R&Q linking policy, and he directed the Chief of Military Personnel (CMP) to lead the development of a new policy in consultation with other CF authorities with the objective of identifying the gaps and deficiencies in the current policy and addressing the criteria for and the extent of meal preparation in quarters, as well as the affordability of rations in dining facilities that make the de-linking impracticable.

This decision also serves to advise environmental commanders and CMP to communicate to their wing/base commanders that the linking of R&Q is now optional unless it is required to support training or operational requirements. The CDS stated that mandatory linking of R&Q should only be enforced when there are exceptional circumstances that make the de-linking impracticable.


Reimbursement of Expenses Related to House Sale and Move

Board Findings and Recommendations

The grievor co-owned her principal residence with a non-CF member. At the time of her posting, a real estate appraisal placed the value of the home at less than the mortgage amount still owing on the home. The grievor sold her half of the home to her co-owner for the sum of one dollar after which the co-owner assumed full liability for the entire amount of the mortgage outstanding.

The grievor was denied by the Director Compensation and Benefits Administration (DCBA) reimbursement of certain expenses related to her move and sale of her house. In particular, the grievor lost money on the sale of her house and feels she should be entitled to Home Equity Assistance (HEA). She is also asking for reimbursement of Storage in Transit (SIT) fees and Mortgage Loan Insurance (MLI) benefits.

The DCBA determined that the grievor had sold her half of the home for just one dollar and had therefore sold it for far less than the 95% of appraised market value required under article 8.2.13 of the Canadian Forces Integrated Relocation Program (CF IRP).

In denying the HEA, the DCBA stated that the grievor had sold her $381,000 home for just $1 and therefore at a loss of $380,999. The DCBA found that the circumstances of the sale did not meet the intent of article 8.2.13 of the CF IRP.

The Board disagreed, finding that article 8.2.13 expressed no “intent” and that it was sufficient simply to incur a loss when selling a home to be entitled to a reimbursement of HEA. The Board also found that the grievor had, in fact, sold her half of the home to her co-owner for exactly half of the remaining mortgage plus $1 and so calculated the grievor’s real selling price to be $188,000 plus $1. Given that her half of the purchase cost had been $190,500, the Board found that the grievor had an eligible loss of $2,400 on the sale of her home and was entitled to receive 80% of this loss as an HEA benefit from the core envelope.

In denying the grievor MLI benefits, the DCBA stated that there was no way of calculating the equity that the grievor had transferred to the new residence. The Board disagreed, finding that after the grievor’s sale, the resulting equity was exactly $1. The Board based this finding on a plain definition of the word “equity”, meaning the value of a mortgaged property after deduction of charges against it – specifically the grievor’s half of the remaining mortgage. The Board concluded that the minimum down payment required from the grievor in buying her new residence would have exceeded the $1 in equity resulting from the sale of the old residence. Accordingly, the Board found that the grievor was entitled to MLI benefits from the core envelope.

In denying the grievor’s request for SIT fees, the DCBA cited CF IRP article 9.1.05 and stated that the grievor had no home to sell and had not secured accommodation at her new place of duty, nor had she planned a door-to-door move. The Board disagreed, finding that the grievor did sell her home and had in fact secured accommodations. The Board therefore found that, in accordance with article 9.1.04 of the CF IRP, the grievor was entitled to the payment of SIT fees from the core envelope for those days when interim lodgings, meals and miscellaneous expenses were approved.

Finally, the Board examined the grievor’s claim for capital improvements. The Board found that the grievor appeared to have some capital improvements that would qualify for reimbursement and noted that there were funds remaining in her custom envelope. Upon the Board’s request, the grievor submitted original receipts for the capital improvements and the Board concluded that the grievor’s claim should be reassessed by an appropriate authority to properly determine her capital improvement entitlement.

Accordingly, the Board recommended that the Chief of the Defence Staff (CDS):

  • uphold the grievance;

  • direct the reimbursement of HEA, MLI and SIT from the grievor’s core envelope; and

  • direct a review and reassessment of the grievor’s file to determine her entitlement to capital improvement reimbursement.

Final Authority Decision

The CDS agreed with the Board's recommendation to grant the grievance. The CDS agreed with the Board's recommendation that the grievor should be reimbursed for the HEA since the grievor sold her portion of the ownership of the residence to her roomate for her 50% liability in the mortgage, which amount had to be validated by the bank, plus $1. The grievor will be also be reimbursed her MLI expenses, given that she transferred the equity from the sale, at least $1, on her new residence.

The CDS also agreed with the Board's recommendation that the grievor's claim regarding the capital improvement be reassessed, but the calculation must be based on 50% of all eligible receipts, not only on the grievor's portion of the receipts. After conducting the necessary investigation, the CDS agreed that the grievor was entitled to the reimbursement of SIT expenses from the core funding after he had properly determined that the grievor's interim lodgings, meals and miscellaneous (ILM&M) were properly authorized.


Definition of “place of duty”

Board Findings and Recommendations

The grievor, a Regular Force member, was denied move benefits on his posting from one “place of duty” to a new and adjacent one because his principal residence was already located within the geographical boundaries of his new place of duty while his actual worksite was in the former place of duty. The grievor argued that the commute to his new worksite was excessive and sought authority for a move at public expense citing paragraph 4 of Canadian Forces Administrative Order (CFAO) 209-28.

The Relocation Adjudication Section of the Director Compensation and Benefits Administration denied the grievor’s request, explaining that the definition of “place of duty” includes the surrounding geographical area. It found that since the grievor’s residence was already located within the geographical boundary of his new place of duty, the grievor was not actually relocating from one place of duty to another. The initial authority (IA), the Director General Compensation and Benefits, requested two extensions beyond the 60-day time limit set out in the regulation. The grievor did not grant the second request; therefore, there was no IA decision in this matter.

The Board first observed that the grievor’s situation did not fit within the parameters of paragraph 4 of CFAO 209-28 because the boundaries of the two places of duty did not overlap. The Board then considered whether the grievor was posted from one place of duty to another and found that, in accordance with the Canadian Forces Integrated Relocation Program (CF IRP), section 1.4, both places of duty met the definition of being a distinct “place of duty” with respective geographical boundaries. The Board concluded that the grievor had been posted from one place of duty to another, notwithstanding that his residence was already located within the geographical boundary of his new place of duty.

Next, the Board considered the CF IRP article 1.1.03 which indicates that entitlement to a move at public expense only arises when the replacement residence is at least 40 kilometres (km) closer to the new place of duty than the current principal residence. In the case of the grievor, his principal residence was located within the outer edge of the defined geographical boundary of his new place of duty, making it physically impossible to relocate 40 km closer to his new place of duty.

The Board found that, in applying the formula for calculating the distance set at CF IRP article 1.1.03, the large size of the geographical areas established as the places of duty is problematic. The Board observed that both the Public Service and the Royal Canadian Mounted Police relocation policies used the term “worksite” as the definition of place of duty. The CF IRP 2010, Clarification Bulletin 5, introduced a definition for the term “worksite” in Section 1.4 and referred to article 1.1.03 and section 2.5. However, the term “worksite” is not found in article 1.1.03 nor in section 2.5 and the Board was unable to obtain additional clarification on the matter from the IA. The Board concluded that the only logical and reasonable purpose for adding the term would be to use it in the formula. In the grievor’s case, his new principal residence was more than 40 km closer to his new worksite, thus entitling the grievor to a move at public expense.

The Board noted that the term “place of duty” is being used to mean both a geographical boundary and a worksite in the CF IRP. The Board suggested that the Chief of the Defence Staff (CDS) consider modifying the definition of “place of duty” to avoid confusion and to insure that CF members receive the benefits to which they are entitled.

The Board recommended that the CDS uphold the grievance and direct the reimbursement of the grievor’s personally funded move.

Final Authority Decision

The CDS agreed with the Board's recommendation to uphold the grievance, and authorized the grievor's cost move in accordance with CF IRP 2009.

Statistics

Category of grievances received since 2010

Data as of December 31, 2012

Categories of grievances received since 2010 as of December 31, 2012
Categories of grievances 2010 2011 2012
Financial 56% 40% 47%
General 24% 49% 37%
Release 13% 7% 10%
Harassment-Discrimination 7% 3% 5%

Findings and Recommendations (F&R) rendered in 2012

149 cases as of December 31, 2012

Distribution of the Findings and Recommendations ( F&R) by category of grievance for the period between January 1, 2012 and December 31, 2012
CFGB F&Rs Financial General Harassment-
Discrimination
Release
Not Grievable 3 0 0 0
No jurisdiction 0 1 0 0
Grant 33 12 0 7
Partial Grant 16 10 4 2
Denial 28 24 1 8

Decisions rendered by the CDS

94 received between January 1, 2012 and December 31, 2012

Chief of the Defence Staff (CDS) decisions received between January 1, 2012 and December 31, 2012
  CDS agrees with CFGB's F&R CDS partially agrees with CFGB's F&R CDS does not agree with CFGB's F&R Resolved by CF Informal Resolution Withdrawn at the CDS level CDS had no authority to adjudicate
  63% 19% 11% 3% 3% 1%

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