eBULLETIN - October 2014

Contents

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

Highlights

The grievor objected to her withdrawal from the Basic Public Affairs Officer Course, where her performance was deemed unsatisfactory. The grievor attributed her failure to the fact that the Canadian Armed Forces did not respect her right to receive instruction in the official language of her choice.

The grievor’s attached posting instruction message indicated that she would receive free rations and quarters (R&Q). Following the promulgation of a Canadian Forces General Message announcing that Canadian Armed Forces members on attached postings would no longer receive travel duty benefits, her benefits ceased and she began to pay for partial R&Q. She filed a grievance requesting reinstatement of her benefits.

The grievor claimed that the scoring process used to establish the Selection Board Candidates List (SBCL) is unfair. The grievor submitted that had his first Personnel Evaluation Report (PER) not been reduced by half, his file would have ranked much higher on the SBCL and been put before to the Selection Board. As redress, the grievor requested that the provision to reduce the score of PERs in the previous rank be repealed, that his file be rescored and that he be considered for a retroactive promotion.

Case Summaries

Proficiency in a First Official Language

Committee Findings and Recommendations

The grievor objected to her withdrawal from the Basic Public Affairs Officer Course (the "occupational course"), where her performance was deemed unsatisfactory. The grievor attributed her failure to the fact that the Canadian Armed Forces (CAF) did not respect her right to receive her instruction in the first official language of her choice.

The Initial Authority (IA) denied the grievance on the grounds that it was filed after the six-month period specified in the policy. The IA nevertheless noted that the grievor had significant difficulty regarding proficiency in her first official language, which was not her mother tongue, and that the Progress Review Board members had recommended that she be reassigned to another military occupation.

While reviewing the file, the Committee held a public hearing where the former and current heads of the educational establishment, as well as the National Defence's Director of Official Languages, were heard. In light of the information received, the Committee recommended that the Chief of the Defence Staff (CDS) grant the grievance.

The Committee concluded that the CAF had failed in their obligation to deliver training in the grievor's first official language, as provided in the Official Languages Act and the Defence Administrative Orders and Directives (DAOD) 5039-6, Delivery of Training and Education in Both Official Languages. The evidence obtained confirmed the grievor's allegation that 70% of the course material, in a supposedly bilingual course format, was delivered in only one official language. That said, the Committee also found that the course format had evolved since then, and pronounced itself satisfied that it now met CAF official language requirements. The Committee recommended that the grievor take her occupational course again in the present bilingual format.

Concerning the grievor's lack of proficiency in her first official language, the Committee observed that the CAF should reasonably have noted the grievor's deficiencies when she failed her aptitude test during enrolment. The Committee also found that, at that time, the CAF delivered language training to recruits who were having difficulties in their training owing to insufficient proficiency in their declared first official language. While the Committee recognized that the CAF have no obligation to provide first language refresher training, it nevertheless recommended that the CDS go beyond the new directives so as to allow the grievor, on an exceptional basis, to benefit, through refresher language training, from the same tools given to individuals who had been having difficulties of the same nature and to whom the CAF had given training. To justify this exception, the Committee considered the grievor's impeccable attitude, her academic training, the references submitted, and the fact that, after withdrawing from her occupational course, she continued to perfect her aptitudes, both in language and in the field of communications.

The Committee recommended that the CDS grant the grievance and allow the grievor to take her occupational course again and to benefit from language training in her first official language before retaking her occupational course.

The Committee also formulated a systemic recommendation regarding a bona fide occupational requirement for the Public Affairs Officer military occupation so as to enforce a higher level of language proficiency at entry into the occupation.

Final Authority Decision

The Final Authority (FA) was in partial agreement with the Committee's findings and recommendations (F&R).

The FA agreed with the Committee's finding that the grievor's right to receive training in the language of her choice had been breached and that, in fact, the Basic Public Affairs Officer Course at the time violated the provisions of the Official Languages Act and of the DAOD 5039-6.

The FA did not agree with the Committee's recommendation to provide the grievor with training in her first reported official language. Although the Committee reported signs that the grievor had difficulty in her first reported official language during her enrolment and that the CAF should have offered her language training to address these issues, the FA was of the view that Instruction 03/11 of the Canadian Defence Academy was in force when the grievor later experienced difficulty with the course. Since that instruction stipulates that the CAF are not required to offer training in the first reported official language, the FA determined that it was reasonable for the CAF to rely on the eligibility criteria in force for public affairs officers, namely, a university degree.

However, the FA found that the grievor had not been sufficiently prepared to meet the requirements of the occupational course and that the error in managing her file was to have allowed her to participate in the said course without a minimum required language profile of BBB in her second official language, English. The FA therefore required the grievor to take second language training and that measures be taken to ensure a spot for her in the occupational course in January 2015. Considering the situation, the FA ordered that the process undertaken to release the grievor from the CAF be abandoned.

The FA was in partial agreement with the Committee's systemic recommendation and determined that there was no problem of a systemic nature, as only the grievor's Military Occupational Career is affected by this recommendation. While the FA acknowledged that it is imperative for Public Affairs Officers to master their first official language and that this ability should be assessed, the FA did not order that this occupational requirement be developed and enforced, but sent the F&R to the Assistant Chief Military Personnel to guide him in his deliberation on the issue.


Entitlement to Duty Travel Benefits

Committee Findings and Recommendations

The grievor accepted a Class B service offer from September 2010 to August 2011. Her attached posting instruction message indicated that, pursuant to the Canadian Forces Temporary Duty Travel Instruction (CFTDTI), she would receive free rations and quarters (R&Q). In February 2011, following the promulgation of Canadian Forces General Message (CANFORGEN) 033/11 announcing that Canadian Armed Forces (CAF) members on attached postings would no longer receive travel duty benefits, her benefits ceased and she began to pay for partial R&Q. She filed a grievance contesting the cessation of the benefits, stating that she had accepted the Class B offer based on the promise that she would receive free R&Q. As remedy, she requested reinstatement of her benefits and reimbursement for out of pocket expenses incurred for meals. In January 2012, CANFORGEN 008/12 announced the reinstatement of benefits. Article 3.015 was added to the CFTDTI at the same time. This article provided that duty travel benefits would only apply to those reservists on attached postings who were filling an establishment position entered in the Canadian Forces Task Plans and Operations (CFTPO) database. The grievor subsequently received reimbursement for the partial rations she had paid for but not for the additional meal expenses she incurred on her own.

The Initial Authority (IA), the Acting Director General Compensation and Benefits (DGCB), denied the grievance, concluding that the grievor met all of the conditions to receive the benefits except that her position had not been entered in the designated CFTPO database. The IA also stated that since the grievor was not on a tasking but was serving in a temporary employment situation, all reimbursements that she received for the period from February to August 2011 were errors that had to be recovered.

The Committee first found that the grievor was not serving on a tasking, that it would have been inappropriate to enter her service in the CFTPO database, and that she was not entitled to duty travel benefits under the CFTDTI policy. The Committee then sought to determine why such a stipulation was necessary.

The DGCB staff, in response to a question from the Committee, explained that the intent of the new CFTDTI article was to limit attached posting benefits to only those serving on an incremental tasking identified in the CFTPO database. However, the DGCB staff did not explain why it was necessary or desirable to exclude reservists serving on temporary employment periods of less than a year from being eligible to receive duty travel benefits. In the absence of any type of CAF rationale for such an exclusion, the Committee concluded that the policy change was arbitrary, unfair and not well thought out, noting that such a policy would appear to make it difficult for the CAF to attract reservists to fill key temporary employment needs in the future.

The Committee also found it unfair to cease the grievor's duty travel benefits midway through her attached posting and period of employment after she accepted the employment offer based on the promise that she would receive free R&Q.

The Committee recommended that the Chief of the Defence Staff (CDS) partially grant redress, noting that the CDS could exercise his discretion pursuant to Queen's Regulations and Orders for the Canadian Forces 208.52, to remit all R&Q charges for the grievor during her entire attached posting period. Although this CDS discretion only permits the remission of R&Q charges and could not be used to reimburse the additional meal expenses incurred by the grievor off-base, the Committee found that it could be used to ensure that the grievor would not be subjected to recovery action in relation to the R&Q which she did receive.

The Committee also recommended that the CDS amend the CFTDTI policy effective 1 February 2011, to authorize the inclusion of other databases so as to permit reservists serving on attached postings in a temporary employment role to be entitled to receive duty travel benefits. Finally, the Committee observed that many CAF members who received financial benefits in error while on attached postings still face an uncertain future with respect to whether the CAF intends to commence recovery action. The Committee encouraged the CDS to address the situation promptly and fairly.

Final Authority Decision

The CDS agreed with the Committee's recommendation to partially uphold the grievance. The CDS was satisfied that the grievor accepted an offer of Class B Reserve Service (Res Svc) that included Temporary Duty (TD) benefits in good faith and that the cessation of these benefits part way through the grievor's period of service, as well as the subsequent possibility of recovery of these benefits, is unfair. The CDS used his discretion, as recommended by the Committee, to remit the R&Q charges for the entire period of the grievor's attached posting. The CDS did not agree with the Committee's recommendation and its associated finding that the CFTDTI policy be amended to include other databases. Since the Res Svc needs are unique and complex, the CDS was not convinced that associating TD benefits for attached postings to a position in CFTPO is a well-thought-out strategy. In order to have a better understanding of this rationale and the Reserve requirements, the CDS directed DGCB to engage the Chief Reserves and Cadets to revisit the TD policy with emphasis on the impact of the CFTPO requirements for attached postings.


Scoring Process for the Selection Board Candidates List

Committee Findings and Recommendations

The grievor claimed that the scoring process used to establish the Selection Board Candidates List (SBCL) is unfair. The SBCL policy prescribes a mathematical assessment of the last three Personnel Evaluation Reports (PERs), with a reduction of PERs in the previous rank by half. The grievor contends that Canadian Armed Forces (CAF) members at his rank are disadvantaged as the minimum time in rank for promotion is three years, meaning that they will have only received two PERs in their current rank when they become eligible to be assessed by a Selection Board. The grievor submitted that had his first PER not been reduced by half, his file would have ranked much higher on the SBCL and been put before to the Selection Board. As redress, the grievor requested that the provision to reduce the score of PERs in the previous rank be repealed, that his file be rescored and that he be considered for a retroactive promotion.

The Director General Military Careers (DGMC), as the Initial Authority (IA) in this matter, denied redress finding that the grievor's SBCL score was calculated correctly and in accordance with policy. Addressing the grievor's claim that the scoring process was unfair, the IA pointed out that the SBCL process included a mechanism whereby the Career Manager (CM) reviews the files of those candidates who have been excluded by the purely mathematical calculations to determine whether they are competitive and should be included for Selection Board review. The IA noted that in this instance the grievor's CM did not add any additional files and found no reason to question this decision.

The Committee agreed that the grievor's SBCL score was calculated in accordance with policy but found that the grievor's file was competitive and that the CM should have exercised his discretion and add the grievor's file to the SBCL. The grievor was disadvantaged by the combination of a series of permitted policy-related decisions: reduction by half of a PER where the grievor was employed in a position of a higher rank and labelled for succession planning purposes; attendance on second official language training, delaying his ability to perform and be assessed in his substantive rank; and duplicating the score of his first PER in rank.

The Committee recommended that the Chief of the Defence Staff (CDS) uphold the grievance and order a Supplementary Selection Board to assess the grievor's file and determine if he should have been promoted. In addition, the Committee recommended that the CDS promote the grievor, in an Acting While So Employed (AWSE) capacity, for the period during which he was employed in a higher rank position.

Finally, having reviewed the basis to the provision of reducing PERs in the previous rank by half in establishing the SBCL, the Committee made a systemic recommendation to review the merits of this practice.

Final Authority Decision

The Final Authority (FA) did not agree with the Committee's recommendation that the grievance be partially upheld. The FA found that the decision not to present the grievor's file to the 2013 Selection Board was reasonable, and that he was treated fairly in accordance with the applicable regulations. The FA did not agree with the Committee that the grievor's file was competitive and should have remained with those SBCL files for consideration by the Selection Board.

While the FA acknowledged that the application of a 50% reduction factor assigned to PERs in a previous rank is not a perfect system, it fulfills the role it was meant for which is being the standardized assignment of less weight to a PER from a previous rank, thus favouring those top performers with experience in the current rank. Consequently, the FA did not agree with the Committee's systemic recommendation that the current DGMC policy be changed. Contrary to the Committee's finding, the career managers provided a human dimension to the process in that they were given the discretionary authority to bring forward those files that were ranked below the SBCL cut-off line but that were still considered competitive.

Notwithstanding the Committee's recommendation, the FA did not find sufficient evidence to support the grievor's AWSE promotion during the time in question.


Statistics

Category of grievances received since 2012 as of September 30, 2014
Categories of grievances 2012 2013 2014
Financial 47% 27% 38%
General 36% 55% 44%
Release 11% 16% 12%
Harassment-Discrimination 5% 2% 6%
Distribution of the Findings and Recommendations (F&R) by category of grievance for the period between January 1, 2014 and September 30, 2014
MGERC F&R Aggrieved Not Aggrieved
Recommend no remedy Recommend outside resolution Recommend remedy Recommend no remedy Recommend grievance be denied
Release 0 0 6 1 5
Harassment-Discrimination 0 0 4 0 1
General 1 1 25 1 31
Financial 0 0 14 0 12
Chief of the Defence Staff (CDS) decisions received between January 1, 2014 and September 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
  50% 25% 26%

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