eBULLETIN - July 2014

Contents

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

Highlights

The grievor was released for illicit drug use. The grievor sought to have his release item amended to medical release, arguing that his substance abuse was a substance use dependence issue and was service related as a consequence of his diagnosed Post-Traumatic Stress Disorder.

A pay clerk informed the grievor that he was entitled to the transitional post living differential (TPLD) allowance and the grievor began receiving the TPLD backdated to his posting date. A year later, the Area Support Unit Commanding Officer directed recovery from a number of personnel, including the grievor, who were erroneously receiving the said allowance. The grievor argued that, having relied on information provided by experts, military members should not be financially responsible for this mistake, and therefore sought write-off of the debt.

Following an accusation of plagiarism on an assignment the grievor had prepared with a classmate, the Progress Review Board (PRB) decided to remove the grievor from training and issue him a recorded warning. The grievor submitted a grievance, alleging that he had been given administrative penalties more severe than his colleague and that there had been a breach of procedural fairness during the PRB. He requested that the remedial measures be withdrawn and that he be allowed to complete the course toward his qualification.

Case Summaries

Release Due to Substance Abuse

Committee Findings and Recommendations

The grievor was released under item 5(f) - table to article 15.01 of the Queen's Regulations and Orders for the Canadian Forces (QR&O) - for illicit drug use. The grievor sought to have his release item amended to an item 3(b), medical release, arguing that his substance abuse was actually a substance use dependence issue and was service related as a consequence of his diagnosed Post-Traumatic Stress Disorder (PTSD).

An Administrative Review was initiated by the Director Military Careers Administration (DMCA) and the Director of Medical Policy (D Med Pol) was consulted. In their response, the D Med Pol stated that the timing of the escalation of drug use by the grievor suggested an interrelationship between his PTSD and substance use issues. Notwithstanding, the Canadian Armed Forces (CAF) took the position that the grievor had violated the QR&O, Chapter 20, the Canadian Forces Drug Control Program (CFDCP), disregarding the known interrelationship of his substance use issues and PTSD. In doing so, the CAF concluded that the grievor's actions were wholly and chiefly within his control and that, therefore, there was no link between his PTSD and his substance use.

The Initial Authority (IA) denied the grievance, stating that the release under item 5(f) best reflected the reason for the grievor's release. The IA acknowledged the grievor's PTSD diagnosis but noted that a cause-and-effect relationship between his medical condition and his illicit drug use was not found.

The Committee learned that, despite testing positive for illicit drug use, the grievor was not referred for medical treatment, but rather was permitted to deploy. And that, within months of his return from deployment, he was diagnosed with PTSD and Substance Use Disorder.

The Committee applied the CFDCP policy to the grievor's circumstances and found that the DMCA had failed to follow the regulation and policy processes in their handling of the first detected drug use by the grievor, and that the said failure led to a series of unfortunate events.

The Committee ultimately found that the grievor's release under item 5(f) was not reasonable. The grievor had two medically diagnosed conditions and had been assigned three permanent Medical Employment Limitations, all of which breached the Universality of Service principle.

Accordingly, the Committee found that a medical release under item 3(b) would be most appropriate, and recommended to the Chief of the Defence Staff that the grievance be upheld and that the grievor's item of release be amended from 5(f) to 3(b).

Final Authority Decision

Pending.


Entitlement to the Transitional Post Living Differential Allowance

Committee Findings and Recommendations

In September 2011, a pay clerk informed the grievor that he was entitled to the transitional post living differential (TPLD) allowance; this information was corroborated by Canadian Armed Forces (CAF) members working with the grievor who were in receipt of the allowance. Consequently, the grievor began receiving the TPLD allowance backdated to the posting date in August 2011. In August 2012, the Area Support Unit Commanding Officer (CO) issued an e-mail directing recovery from 110 personnel, including the grievor, who were never entitled but had been erroneously receiving the allowance. The grievor argued that the policies governing the post living differential (PLD) allowance and the TPLD allowance were not clear and the staff of the base orderly room appeared to be confused concerning the appropriate approval authority. The grievor submitted that, having relied on information provided by experts, CAF members should not be financially responsible for this mistake, and therefore sought write-off of the debt.

The Initial Authority (IA) decision emphasized that TPLD had been established at certain locations to assist those CAF members subject to decreases in PLD rates as a result of a new methodology introduced effective 1 July 2007. Given his rank, the grievor would need to have been posted to the applicable PLD area prior to 1 April 2009 in order to be eligible for TPLD, in accordance with Compensation and Benefits Instructions (CBI) article 205.452. Since the grievor was not posted until 2011, there was no entitlement to TPLD. The IA noted that in accordance with the Financial Administration Act, a debt should be collected unless it was considered unreasonable or unjust or that it was considered in the public interest to remit it. The IA concluded that remission was not justified in the grievor's case given the recovery plan was neither “unreasonable nor unjust” and denied the grievance.

The issue for the Committee was whether the decision to recover the TPLD allowance from the grievor was justified and in accordance with applicable policy.

The Committee was in agreement with the IA decision that the grievor was plainly not eligible for TPLD in accordance with CBI 205.452. However, the Committee was of the opinion that the grievor was entitled to rely on the expertise of pay office personnel and, in the circumstances, have recourse to the remedial provisions of remission set out in subsection 23(2.1) of the Financial Administration Act. It was the Committee's view that the grievor's debt could be remitted as it was unreasonable and unjust to collect the overpayment. Thus, the Committee recommended that the Chief of the Defense Staff (CDS) direct the preparation of a submission to be forwarded to Treasury Board recommending the remission of the grievor's debt. The Committee referenced a systemic recommendation made in another similar grievance, recommending the CDS seek the remission of the debt of all affected CAF members.

The Committee was also concerned with the fairness of the TPLD policy itself, given that it was introduced as a transitional policy but continues to exist. This has resulted in an unfair situation which needs to be resolved as CAF members, posted prior to a certain date, continue to receive an allowance while colleagues working with them, but posted later, are not entitled to it.

Final Authority Decision

While the CDS appeared concerned with the number of overpayment related grievances received since he became the CDS, he disagreed with the Committee that a remission order in this case was warranted. In his view, remission orders may be an option for consideration, but are not practical nor feasible for most overpayments made to CAF members as it requires the Minister's involvement and the approval of the Governor in Council. He did however direct the Chief Military Personnel to review the system used to administer the payments of benefits to CAF members, with a view of minimizing the number of errors. The CDS also found that the grievor had no choice but to refund the TPLD received in error. Finally, with respect with the Committee's concerns with the fairness of the TPLD policy itself, the CDS assured the Committee that the outstanding issues were being addressed.


Training Cessation and Recorded Warning Due to Plagiarism

Committee Findings and Recommendations

Following an accusation of plagiarism on an assignment that the grievor had prepared in partnership with a classmate, a Progress Review Board (PRB) was held and the decision made to remove the grievor from training and issue him a recorded warning. The grievor also received a second recorded warning after he applied for alternate conflict resolution, alleging that he was the victim of harassment by a member of the chain of command.

The grievor submitted a grievance, alleging that he had been given administrative penalties more severe than his colleague and that there had been a breach of procedural fairness during the PRB. He requested that the remedial measures be withdrawn and that he be allowed to complete the course toward his qualification.

The Initial Authority (IA) denied the grievance, indicating that the grievor had admitted to plagiarism and that the PRB had proceeded in accordance with directives. Furthermore, the IA was of the opinion that both recorded warnings were deserved.

First, the Committee noted that the recorded warning given to the grievor for having applied for alternate conflict resolution arose from the actions of a member of the chain of command that met the definition of harassment. Noting that a meeting between the grievor and the Respondent had resulted in a mutual understanding, the Committee concluded that this recorded warning was not reasonable.

The Committee went on to note that there had been a breach of procedural fairness during the PRB. New evidence had been brought before the PRB members without the grievor's knowledge, and the PRB discussions appeared tainted by a lack of impartiality on the part of some Board members. The Committee concluded that the breaches of procedural fairness were sufficiently severe to set aside the PRB's decision and conduct another review.

The Committee compared the grievor's situation with that of his work colleague and determined that no significant difference existed that could justify different treatment. The Committee thus concluded that the grievor should have been given the same remedial measure as his partner.

The Committee recommended that the Chief of the Defence Staff (CDS) grant the grievance.

The Committee recommended that the CDS order that the two recorded warnings be rescinded and removed from the grievor's personnel file.

The Committee recommended that the CDS order that the grievor be given the same remedial measure as his partner, that is, an initial counselling for plagiarism.

The Committee recommended that the CDS order that the grievor's file be evaluated to determine and do what must be done to restore the grievor's career to a situation equivalent to where it would have been if such actions had not been taken against him.

Final Authority Decision

Pending.


Statistics

Category of grievances received since 2012 as of June 30, 2014
Categories of grievances 2012 2013 2014
Financial 47% 27% 38%
General 36% 55% 47%
Release 11% 16% 9%
Harassment-Discrimination 5% 2% 7%
Distribution of the Findings and Recommendations (F&R) by category of grievance for the period between January 1, 2014 and June 30, 2014
MGERC F&R Financial                                       General                                                 Harassment-Discrimination          Release                                  
Upheld 2 9 0 1
Partially Upheld 3 7 1 4
Denied 11 22 1 3
Chief of the Defence Staff (CDS) decisions received between January 1, 2014 and June 30, 2014
  CDS agrees with Committee's F&R CDS partially agrees with Committee's F&R CDS does not agree with Committee's F&R
  45% 29% 26%

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