eBULLETIN - January 2014

Contents

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

Highlights

The grievor contended that the Canadian Armed Forces had made an error in transferring him to the Supplementary Reserve and that this error had unfairly led to the loss of his rank protection provided for by Military Personnel Instruction 03/08. The grievor contested his demotion and the refusal to credit him with the Common Army Phase. He also maintained that his military experience has been undervalued.

The grievor stated that the delay in sending him on the Intermediate Leadership Qualification course was unreasonable and fully attributable to the Canadian Armed Forces. As the Payment in Lieu of Severance benefit at the rank of substantive Sergeant, rather than Warrant Officer, caused the grievor to suffer unfair financial harm, he requested that his substantive rank be backdated to the 2010 original date of his promotion and that his severance benefit be re-calculated.

The grievor claimed that the drug testing order and any subsequent testing and results had to be disregarded, since there was no evidence that any of the criteria mentioned in Chapter 20 of the Queen's Regulations and Orders for the Canadian Forces, for which a Commanding Officer can order a drug test, were met. The grievor requested that the test be declared null and void.

Case Summaries

Transfer to the Reserve Force and Rank Protection

Committee Findings and Recommendations

Planning a transfer to the Reserve Force after 20 years of service in the Regular Force, the grievor met with the chain of command of a reserve unit and his application was accepted. Since the transfer called for a change of element and military occupation, the Brigade Personnel Selection Officer assessed the file and determined that the grievor met the criteria, indicating that he would have to complete a few weeks of training over the coming year to qualify in his new trade and that he would retain his rank. At the time of his release from the Regular Force, the grievor asked to be transferred to the Primary Reserve. However, he was posted to the Supplementary Reserve instead with the assurance that this would have no impact on his qualifications. After two periods of reserve service, as he sought a transfer to the Primary Reserve, he was advised by the administrative personnel that he would not be able to retain either his rank or his Incentive Pay Category when transferring from the Supplementary Reserve to the Primary Reserve because he lacked the Common Army Phase qualification. The grievor submitted a request for a prior learning assessment and recognition in order to be exempted from this training owing to his prior experience in the Regular Force. His request was denied. The grievor accordingly accepted an offer of service at a lower rank and Incentive Pay Category. The grievor is contesting his demotion and the refusal to credit him with the Common Army Phase. He maintains that his rank should be protected and that his military experience has been undervalued.

The Inititial Authority (IA) denied the grievance, stating that the offer of service at the rank of Lieutenant was made in consideration of the grievor’s prior service, his military experience and his brief period of inactivity in the Supplementary Reserve. As for the findings of the prior learning assessment and recognition, the IA upheld the decision not to grant the grievor an equivalency. Indicating that such an equivalency may be granted when there are similarities amounting to at least 60% between the content of the desired qualification and the qualification that the Canadian Armed Forces (CAF) member deems equivalent, the IA concluded that the grievor’s training and experience failed to meet this standard.

The Committee began by reviewing the provisions of Section 5 of Canadian Forces Military Personnel Instruction 03/08 – Canadian Forces Component Transfer and Component Transfer Career Programs (CF Mil Pers Instr 03/08), which provides that a CAF member who is transferred directly from the Regular Force to the Primary Reserve enjoys rank protection. However, such protection is not available to CAF members who are transferred from the Supplementary Reserve to the Primary Reserve. In order to enjoy rank protection, the grievor was required to obtain a position in the reserve unit and then meet with the Personnel Selection Officer, since he had to undergo reclassification. He then had to submit his request in writing to the Release Section within 30 days. The release authority was required to confirm the position number with the reserve unit. Finally, the reserve unit had to obtain approval from Headquarters and the CAF member had to be transferred directly to his new position. The Committee noted that the grievor had in fact completed this process. The Committee communicated with the various officials involved in the transfer, and the reasons behind the grievor’s transfer to the Supplementary Reserve rather than directly to the Primary Reserve remained obscure. In the absence of any rationale and in light of the evidence on file, the Committee determined that the CAF had made an error in tranferring the grievor to the Supplementary Reserve and that this error had unfairly led to the loss of his rank protection provided for by CF Mil Pers Instr 03/08.

In regards to the prior learning assessment and recognition, the Committee began by noting that this was a separate issue from that of the protection of the grievor’s rank. The Headquarters personnel in question confirmed that if the grievor had been transferred directly from the Regular Force to the Primary Reserve his rank would have been protected whether or not he had to retake his basic training. Returning to the directive according to which 60% of similarities between a CAF member’s training and experience must be recognized for him/her to benefit from an equivalency, the Committee went over the qualification sought by the grievor point by point. The Committee determined that the grievor had shown that he possessed over 60% of the skills required.

The Committee recommended that the Chief of the Defence Staff (CDS) uphold the grievance. The Committee recommended that the grievor’s rank upon his release from the Regular Force be reinstated retroactively and that the pay he had received since he was posted to the Reserve Force be adjusted accordingly. The Committee recommended that the grievor be credited with the desired qualification and that he complete his training to become qualified in his new military occupation within the one-year timeframe specified by policy.

Final Authority Decision

The CDS agreed with the Committee’s findings and recommendations.


Payment in Lieu of Severance

Committee Findings and Recommendations

The grievor was promoted to substantive Sergeant (Sgt) in December 2005 and, in July 2010, was promoted to the rank of acting lacking Warrant Officer (WO) because he was missing his Intermediate Leadership Qualification (ILQ) course. In June 2012, after completing the course, the grievor was promoted to the rank of substantive WO.

In March 2012, the Canadian Armed Forces (CAF) announced the termination of the severance pay benefit, whereby CAF members would receive Payment in Lieu of Severance for their eligible time. The calculation of the payment was based on a CAF member's substantive rank. As it applied to the grievor, this meant that his almost two years of service as an acting lacking WO was discounted.

The grievor submitted a grievance stating that it was unfair that it took the CAF six years to provide him with the required training for his substantive promotion to WO. He alleged that this is a systemic problem, that there is a tremendous backlog for the courses and that CAF members have no control over when it is offered or when they can attend. He also noted that the training delay directly and unfairly affected the calculation of his Payment in Lieu of Severance in that he received less compensation than he would have received had he been a substantive WO. As remedy, the grievor requested that his substantive rank be backdated to the 2010 original date of his promotion to acting lacking WO and that his severance benefit be re-calculated.

The Initial Authority (IA), the Director General Military Careers, rejected the grievance on the basis that it had been submitted outside the required time limit. The IA concluded that the grievor's training commenced on 30 January 2012 and that he had six months from that date to complain that he received the training too late. Since the grievance was filed in November 2012, the IA found that it had been submitted beyond the six-month time limit and refused to consider it. However, the Director General Canadian Forces Grievance Authority recommended that the Chief of the Defence Staff (CDS), in the interests of justice, accept and review the grievance; the Committee agreed with this decision.

The Committee found that the delay in loading the grievor on his ILQ course was fully attributable to the CAF and that the delay was unreasonable. The Committee found that the grievor should have been given the opportunity to complete the course as a Sgt.

The Committee also found that, as a consequence of this unreasonable training delay, the grievor received his Payment in Lieu of Severance benefit at the rank of substantive Sgt rather than WO, causing him to suffer unfair financial harm. The Committee recommended that the CDS grant the grievance by waiving the requirement for the grievor to have completed the ILQ course prior to being promoted to substantive WO effective 14 July 2010, and that the Payment in Lieu of Severance benefit be recalculated accordingly.

Final Authority Decision

Pending.


Counselling and Probation Based on an Alleged Drug Possession Offence

Committee Findings and Recommendations

The grievor was placed on counselling and probation for a performance and a conduct deficiency in relation to an alleged drug possession offence for which the grievor was charged by civilian police and signed a Promise to Appear. Months after the alleged offence, the grievor was ordered by his Commanding Officer (CO) to provide a urine sample, which the grievor did. The grievor contended that the counselling and probation should be corrected as it was given for both a conduct and performance deficiency, and did not describe the deficiency in accurate detail. The grievor also claimed that the order to provide a urine sample was not lawful since it was not made in accordance with Queen's Regulations and Orders (QR&O) Chapter 20 and applicable policy. The grievor requested that the test be declared null and void.

The Initial Authority (IA) agreed that the counselling and probation should specify either a conduct or a performance deficiency, not both. The IA also agreed that the CO did not have the grounds to order control testing under QR&O article 20.12. However, the IA found that the CO did have reasonable grounds to test for cause under QR&O article 20.11 and that while on counselling and probation the grievor was subject to drug testing. As a result, the IA ordered that the counselling and probation be amended to reflect a conduct deficiency only and denied the grievor's request to have the drug test declared null and void.

The Committee examined QR&O article 20.07, which states that the urine testing order must provide the article under which testing is ordered. The CO did not specify the article under which the order was made, and the Committee consequently found that it should be nullified on that basis alone. However, the Committee also reviewed the relevant articles in QR&O Chapter 20 for which a CO can order a drug test; those being articles 20.09, 20.10, 20.11 and 20.12. When applied to the facts of this case, there was no evidence that any of the criteria in these articles were met. As a result, the Committee found that the drug testing order and any subsequent testing and results must be disregarded.

At the request of the Committee, the CO clarified that the Promise to Appear document was the only information he used to make the decision to place the grievor on counselling and probation. The Committee found that, absent a conviction, the CO could not reasonably take administrative action against the grievor when there was no reliable evidence other than the mere fact of the charges. The Committee noted that the charges were eventually withdrawn.

The Committee recommended to the Chief of the Defence Staff that he uphold the grievance, that he order the counselling and probation be set aside and expunged from the grievor's files and that he direct the results of the drug testing order and any related subsequent orders be considered null and void and expunged from the grievor's files.

Final Authority Decision

Pending.


Statistics

Category of grievances received since 2011 as of December 31, 2013
Categories of grievances 2011 2012 2013
Financial 40% 47% 27%
General 49% 36% 55%
Release 7% 11% 16%
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 December 31, 2013
MGERC F&R Financial                                       General                                                 Harassment-Discrimination Release                                  
No Standing 1 0 0 0
No Jurisdiction 0 0 0 2
Uphold 19 15 1 2
Uphold Partially 7 14 3 3
Denial 16 33 3 11
Chief of the Defence Staff (CDS) decisions received between January 1, 2013 and December 31, 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 Resolved by CAF Informal Resolution
  71% 20% 8% 1%

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