# 2011-045 Pay and Benefits, Imposed Restriction (IR), Overpayment, Separation Expense (SE)

Case Summary

F&R Date: 2011–11–30

During a posting in 2009, the grievor was informed that he was not entitled to the separation expense (SE) that he had received since 2006, because he lived outside the geographic area of his work location for personal reasons. Initially, the grievor was informed that he had to repay almost $50,000; however, the amount later rose to almost $60,000 after the Director Compensation and Benefits (Administration) added the payments for rations and quarters (R&Q) that the grievor had received.

The grievor contested the recovery of the SE benefits on the grounds that he should not be held responsible for an error made by the Canadian Forces (CF). He stated that he had consulted the relevant authorities and had relied on the information he had received. In his view, it would be unfair to make him bear the financial burden for an error that was entirely beyond his control.

The initial authority (IA) rejected the grievance on the grounds that the grievor did not meet the criterion, according to which his dependants should not have been moved at Crown expense to the new location. The IA noted that when the grievor returned to the work location to which he had been previously posted in 1999, he was reunited with his dependants and his household goods and effects (HG&E).

In order to determine whether the CF’s decision to require reimbursement of the separation expense benefits paid to the grievor between 1 April 2006 and 29 June 2009 was justified, the Board considered the facts, the policies and the decisions that had been made since 1999, which stretched over a period of almost ten years and affected about seven postings.

According to the information on file, the IA decision was based on the determination that the grievor had been reunited with his dependants and his HG&E during his transfer in 2006 to the same place of duty where he had been posted in 1999, when, for reasons related to his family situation, he had been authorized to move his family to a location more than 160 kilometres outside the geographic area. Consequently, the Board examined the specific circumstances of the grievor’s 1999 transfer and concluded that the move was equivalent to moving his dependants to a third location, but did not meet the conditions for such a relocation. Although it was commendable of the commanding officer at the time to accommodate the grievor, the Board concluded that that accommodation had been unreasonable and unauthorized and that the costs attached to it could not be paid by the Crown.

The Board concluded that the grievor’s move at Crown expense in 1999 should have been cancelled and that the CF should have considered the previous place of duty as the last place of duty where the grievor and his family had moved at Crown expense. Consequently, according to the Board, all the benefits associated with the grievor’s subsequent postings, including the separation expense benefits, had to be recalculated as if the grievor’s dependants and HG&E had remained at the place of duty where he was located before his 1999 posting.

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

The Board recommended that the CDS order the grievor to reimburse the amount received for his 1999 move, as well as the separation expense benefits received between 11 July 2005 and 30 March 2006, the period during which the grievor had returned to the last place of duty where his family had moved at Crown expense.

The Board also recommended that the CDS order the payment of separation expense benefits, including the cost of R&Q, to the grievor for the periods of 16 July 1999 to 14 August 2003 and 31 March 2006 to 15 November 2009, as well as the costs incurred for breaking a lease in October 2009.

Alternatively, the Board recommended to the CDS that he exercise the Minister’s powers in order to allow the grievor the separation expense benefits for the period from 31 March 2006 to 29 June 2009.

CDS Decision Summary

CDS Decision Date: 2014–09–25

The CDS did not support all of the Committee's conclusions and did not follow all of its recommendations. Although the grievor was located more than two hours away from his place of duty, the CDS found that he was not separated from his family and that the location in question could be considered as his principal residence. The CDS was of the opinion that the definition of place of duty according to QR&O 209.80 (2) included any place in the surrounding areas and, therefore, it was not an absolute rule that he had to move within the geographical area at issue to be entitled to reimbursement of moving costs. Lastly, the CDS concluded, contrary to the Committee, that it was not unreasonable for the grievor to commute for two hours between his principal residence and his place of duty. Consequently, the CDS disagreed with the Committee's recommendation that the grievor be ordered to reimburse his move from 1999. The CDS directed the Director General, Compensation and Benefits, to take the necessary action to reduce the amount owed to the State by the grievor following its decision.