Pay Protection

Topic

Pay Protection

Case number

• 2011-128 (F&R Date: 2012–05–25)

Description

Upon attaining his Wings, the grievor was promoted from Second-Lieutenant (2Lt) to Lieutenant (Lt), backdated to his enter promotion zone (EPZ) date for Lt. His pay was subsequently re-calculated using table "C", pay level "C", of the pay rates for Lt Direct Entry Officer (DEO).  This recalculation had the unexpected and unfortunate result of placing the grievor's pay account in the negative.  The Board was surprised to discover that a backdated promotion from 2Lt to Lt could result in less pay rather than an increase.  In the Board’s view, it seems reasonable for all Canadian Forces (CF) members to expect that a promotion will provide a positive rather than a negative pay result for them.

The negative result appears to be due to an anomaly in the two pay tables ["B" and "C"] that guide the pay for 2Lt and Lt DEO in accordance with paragraph 204.211(9) of the Compensation and Benefits Instructions (CBI).  Certain annual pay increments (PI) for DEO 2Lt Officers are significantly larger than the same PI for DEO Lt Officers.  This becomes a problem for a pilot who is granted additional PI increases in the rank of 2Lt due to the delays in his training.  Effectively, those additional PI increases as a 2Lt are replaced by Lt PI increases following the backdated promotion. 

Therefore, it is disadvantageous to be paid under the Lt DEO pay rate while waiting to achieve Wings Standard.  It also appears that the longer it takes a pilot to obtain his Wings, the larger the imbalance could become. 

According to paragraph 204.04(3) of the CBI, subject to paragraphs (4) and (5), an officer or non-commissioned CF member shall be paid, on promotion to a higher rank, at the rate of pay established in the applicable CBI which is the greater of: a) the basic rate of pay for the CF member's new rank and, if applicable, pay level and trade group; or b) the rate of pay for the PI and, if applicable, pay level and trade group, for the CF member's new rank that is nearest to, but at least equal to, the sum of the rate of pay the CF member was receiving on the day immediately prior to the date of the promotion, plus an amount equal to the difference between the rate of pay established for PI 1 and PI Basic in the CF member's new rank, but not to exceed the rate of pay for the highest pay increment in the new rank.

The Board considered the possibility that “the day immediately prior to the date of the promotion” might refer to the day prior to the date of the decision to backdate and, therefore, might protect the grievor’s 2Lt pay rate.  Unfortunately, the Board’s conclusion was that a decision to backdate a promotion is made "now for then" meaning that the promotion is deemed in all respects to have taken place on its effective date.  Therefore, the day immediately prior to the date of the promotion referred to in subparagraph 204.04(3) (b), is the day prior to the CF member’s EPZ date for Lt.

Although the apparent intent of subparagraph 204.04(3) (b) is to protect the CF members who are promoted from suffering a decrease in pay, unfortunately, as demonstrated by this grievance, that protection may not be effective in the case of some backdated promotions.

Recommendation

The Board recommended that the Chief of the Defence Staff direct that a submission be made to Treasury Board in order to amend paragraph 204.04(3) of the CBI, so as to explicitly include protection of the rate of pay for CF members who are granted retroactive promotions.

Final Authority Decision

The CDS did not agree with the Board's recommendation. Although the CDS agreed that no one should have pay recovered when they are promoted, he found that it would be more appropriate for CMP to review the promotion policy and the application of CBI 204.211(12) (Completion of training) in situations where training is delayed.