Biennial Report on the State of the Canadian Armed Forces Grievance System (2013-2014)

Improving the process for all

Over the past two years, there have been a number of significant changes to the grievance system where the ultimate goal has been to provide Canadian Armed Forces (CAF) members a clear mechanism where their grievance can be heard and resolved in a fair and timely manner.

In 2013, the number of grievances declined for a third year in a row. This is likely the result of introducing the Notice of Intent (NOI) to grieve where Commanding Officers were notified immediately of outstanding issues that enabled them, whenever possible, to resolve the issue before it became a grievance recognizing that grievance can and should be resolved at the lowest possible level. The Governor in Council assent of the Queen’s Regulations and Orders (QR&O) in May 2014 authorised the promulgation of a completely new chapter on grievances (Chapter 7). The new chapter more clearly describes the accountabilities and responsibilities of not only CAF members, but also those of redress authorities and the Canadian Forces Grievance Authority. Other significant changes include new time limits for submitting grievances, for considering and determining grievances by the initial authority (IA), new authorities have been provided to me and to delegate my powers as final authority (FA) on non strategic grievances. All of these changes have enabled me, and all those who have a role in resolving grievances, to become more responsive to the needs of CAF members.

2014 was also a year of new resolve. Though most grievances are determined in a timely manner, the grievance backlog at the IA level had been steadily increasing over the past few years. At the end of 2013, more than 600 grievances had been with IAs for more than 4 months – a good number had been with IAs for more than 6 months. These numbers arenot merely statistics: they represent CAF members who have asked the chain of command for assistance. Not dealing with grievances in a timely manner undermines the confidence of CAF members in the chain of command and thus, may undermine their loyalty to the institution. On 1 June 2014, OP RESOLUTION was launched. Through OP RESOLUTION, I expressed my intent to eliminate the backlog of grievances at the IA level and reminded IAs of their duty to resolve grievances within a four–month time frame. OP RESOLUTION is a no fail task – one that will demand the focus and efforts of IAs at all levels. Our members deserve no less.

The 2013-2014 Biennial Report on the State of the Canadian Armed Forces Grievance System shows consistencies in both the type and number of grievances filed by CAF members. Though every grievance represents an opportunity for improving how we control and administer the CAF, a one percent grievance rate would be the envy of any public or private organisation. 

Tom Lawson

General

PART 1 - STATUS OF THE CANADIAN ARMED FORCES GRIEVANCE SYSTEM

The Canadian Armed Forces Grievance System (CAFGS) plays a fundamental role within Canada’s profession of arms. It provides a voice to CAF members and reminds us that our duty to care for the welfare of our subordinates underpins their ultimate responsibility and commitment to service and sacrifice for the security of the nation. The CAF is committed to the principle that CAF members who have been aggrieved have the opportunity to exercise their right to submit a grievance and to receive a well explained, timely, reasonable, and impartial determination of their grievance.

AN OVERVIEW OF THE GRIEVANCE PORTFOLIO

The year 2013 marked the third year in a row where we saw a decline in the number of grievances registered across the CAF. This decline is likely due to the introduction of the Notice of Intent to Grieve (NOI) in 2011. Commanding officers have long stated that they wish they had an opportunity to be engaged in an issue before the member files a grievance. The awareness provided by the NOI is a first step towards this end, in that it could result in the early, local and informal resolution of complaints, without having to resort to a rights-based grievance system.

Figure 1

Figure 1

However, there was a notable increase in the numberof grievances registered in 2014 – approximately 100 more than the average. Figure 2 shows that this increase is mostly due to a higher number of grievances related to compensation and benefits. A more in-depth review shows what we refer to as “grievance clusters”(i.e., grievances on the same topic but filed by differentmembers). Some of the topics more commonly grieved are as the mortgage early repayment penalty, the special operations allowance, and operational allowances for deployed pilots.The Grievance Authority believes that this increase will not trend upwards in 2015 and beyond.

Figure 2

WHAT ARE CAF MEMBERS GRIEVING?

Figure 2 shows the number of issues that were most frequently grieved in 2013 and 2014, by category. Career Management includes such matters as performance appraisals, release, promotions, and postings. Conduct and Performance includes career action, remedial measures (RM), honours and awards, human rights, dress and comportment, and harassment. Compensation and Benefits includes allowances, pay recovery, relocation expenses, foreign-service benefits, leave, superannuation, and pay. The focus of grievances has remained consistent over the years. Members are primarily concerned with the fairness of their Performance Evaluation Reports (PER), remedial measures, release from the CAF, and the administration of the harassment prevention and resolution program. As a matter of fact, each year, approximately 250 grievances are registered about PERs alone. The administration of benefits follows closely in second place. This category includes topics such as separation allowance, relocation benefits, overpayments and the fairness of associated recoveries.

Figure 3 shows the status of the grievance portfolio at the end of 2013. In 2013, 884 grievances were  registered; 784 were considered and determined at the IA level; 228 were referred to the FA; and 279 were considered and determined by the FA. At the end of the year, there were 901 grievances at the IA level and 244 at the FA level. The various colours in Figure 3 represent the number of grievances that are at the IA level and the length of time these grievances have been with the IA. Blue and red represent the grievances that have exceeded the legislated time limits for adjudication at the IA level.

Figure 3

Figure 4 shows the status of the grievance portfolio at the end of 2014. During that year, 1,021 grievances were registered; 947 were considered and determinedat the IA level; 296 were referred to the FA level; and 195 were considered and determined by the FA. At the end of the year, there were 861 grievances at the IA level and 328 at the FA level. In 2014, the total number of grievances in the portfolio increased slightly due to the increase in the number of grievances registered and the higher-than-normal (20% higher) number of grievances referred to the FA. In 2014, we also transitioned to a new score card format: either grievances are adjudicated in a timely manner (less than 4 months = green) or they are not (red).

Figure 4

Figure 5 shows the grievance backlog at the IA level over the past five years. It is clear that the backlog has been steadily on the rise, thus leading to the launch of OP RESOLUTION in June of 2014. Figure 5 also shows the immediate impact OP RESOLUTION has had on decreasing the 2014 backlog at the IA level.

Figure 5

OPERATION RESOLUTION

On 1 June 2014, the Chief of the Defence Staff (CDS) launched OP RESOLUTION with an end state of reducing the backlog by 95% and to ensure that IAs understood their obligation to resolve grievances in a timely manner.

Often, when staff produce statistics and scorecards like the one above, one can easily lose sight of the fact that each grievance represents a sailor, soldier, or aviator who reached out to the chain of command for support.

Some grievances may be complex and require advice from subject matter experts residing outside the chain of command that is charged with the IA function.

Still, the new time period available for IAs to considerand determine a grievance is reasonable and must be met. IAs fulfil a critical role in the Canadian Armed Forces Grievance System (CAFGS). Staff capacity to support the IA in this mandate is a critical command support function that must be favoured during any HQ rationalization effort. The fact that the majority ofgrievances at the IA level are older than 4 months is a great cause for concern. As can be seen in figure 5,the grievance backlog at the IA level increased from 2010 through 2013. This trend had to be stopped.Every day that we exceed a reasonable time period when considering and determining a member’s grievance is a day that we weaken their trust andconfidence in, as well as their loyalty to, the chain of command and our profession. If we do not turn this trend around, CAF members may turn elsewhere for help and the confidence of Canadians in the CAF may erode.

You can follow the progress of OP RESOLUTION by accessing Grievance Authority’s monthly DWAN updates at OP RESOLUTION Scorecard.

PART II - SYSTEMIC ISSUES

While considering and making a determination on a grievance, the FA remains attentive for systemic issues. A systemic issue is a policy gap, a problem with an existing policy, or the interpretation of departmental policies or Treasury Board instructions that have caused, and will result in prejudice to CAF members. A few grievances must be considered by the CDS on the same subject before the matter is raised as a systemic issue. The FA then describes the challenge and asks the appropriate Level 1 to address the issue. In 2014, the FA raised the following systemic issues:

Negative impact of promotion policy on pilots.

Compensation and Benefits Instruction (CBI) 204.211(12) (Completion of Training) allows the CDS (or a delegate) to grant officers who experience training delays of more than one year up to two pay increments in the ranks of second lieutenant (2Lt) and lieutenant (Lt). However, CBI 204.04 (Rate of Pay on Promotion) requires that pay increments be removed from a pay account prior to giving effect to a promotion. Because of the length of the training, many pilots are promoted directly to the rank of captain (Capt) upon achieving wing standard. When this occurs, their promotion to Lt is backdated to one year after their commissioning date to 2Lt, effectively eliminating the pay increase that had already been granted from the pay system. Pilots are promoted to Capt, are given their wings, are welcomed to the operational Royal Canadian Air Force, and are asked to pay back thousands of dollars they rightfully earned. While reviewing these grievances, the CDS found that the current promotion and pay increment policies meet neither the needs of our contemporary CAF nor the reality facing the majority of pilot trainees. As a result, he determined that the members had been aggrieved, directed that they be promoted to Lt at the end of phase II training to mitigate the impact of CBI 204.04, and asked the Chief of Military Personnel (CMP) to eliminate the unintended consequence in the application of the promotion policy and associated CBIs.

Reserve service and the calculation of the 28 years of service

A member contends that because her first year in the CAF was as a reservist on full time Res F Class “C” service under the Youth Training Employment Plan, she is being unfairly penalized because that service does not count towards the 28 years of Reg F service required to be entitled to 30 days of annual leave. The Military Grievances External Review Committee found that, in this case, QR&O 16.14 (Annual Leave) is explicit: for the purpose of calculating 28 years of service, only Reg F service can be taken into account. The Committee went on to say that the policy was unfair and inequitable and that this matter had been brought to the attention of the CDS several times in the past. The Committee stated that this inequity came about in April 2004, when QR&O 16.14(4) allowed all periods of Reg F service and Class “A”, Class “B” and Class “C” Res F service to be included in the calculation of five years of service for the purpose of determining entitlement to 25 days of annual leave. The CDS agreed with the Committee that the situation was unfair, but he observed that he did not have the authority to grant redress. The CDS has asked CMP to consider options and associated risks that will, in priority, ensure that Res F service counts towards the granting of the 30 days’ leave.

Note – QR&O 16.14 has been amended effective 1 April 2015 correcting this issue. The systemic issue database at the Grievance Authority has undergone a complete review and validation over the last year. CAF members can view and track the progress of systemic issues on the DWAN at Final Authority Systemic Issues.

PART III - MODERNIZING THE ADMINISTRATION OF THE CANADIAN ARMED FORCES GRIEVANCE SYSTEM

The CDS has always been committed to improving the efficiency of the CAF grievance process. Whether through a more robust IA identification process at the hub or improving the quality of the support to all stakeholders (standard operating procedures, templates and FAQs), the goal has always been to provide the grievor with a decision that is well explained, reasonable, and timely. Seeing the delays caused by administering the grievance system on paper, the Director General Canadian Forces Grievance Authority (DGCFGA) embarked on a project early in 2012 to “digitize” the system and associated processes.

In the 2013 edition of the CDS’s Guidance to the Canadian Armed Forces, the CDS identified the grievance system as a key issue across the CAF: grievances are to be dealt with promptly, and the digitization of the grievance system will advance to eliminate idle time and expedite the process. With this renewed commitment, the first digital trial at the FA level was conducted. The trial was successful in that it showed great potential towards streamlining the secure distribution and communication of grievance files. With further research and committed resources, this undertaking has grown and has been refined through the use of SharePoint as a delivery platform. One of the greatest time savers that has resulted from the  digital process is the reduction in time it takes to deliver files to offices across the CAF. With this promise of ever-increasing efficiencies and to capitalize on potential time saving tools, DGCFGA expanded the digital platform in 2014 to include IAs.

June 2014 marked the official launch of a new digital grievance platform for the CAF. New capabilities were made available to all CAF members, including a more descriptive grievance status search, more efficient means of communicating with the grievance authority, an upcoming database to search summaries of past FA decisions and, as mentioned above, a summary of systemic issues. IAs now have access to a mirror copy of the National Grievance Registry to search, review and update their portfolios. Select IAs will also be fully integrated into the SharePoint grievance information system, where their grievance portfolio will be fully digitized, thus receiving and managing their grievance files completely within this electronic environment. This initiative is proceeding well. At the end of 2014, the following IAs had been digitized: CMP, Director General Military Careers, Director General Compensation and Benefits, Canadian Forces Health Services Group, Canadian Army, Canadian Forces Military Police Group, Canadian Joint Operations Command, Royal Canadian Navy, and Director General Morale and Welfare Services.

These advancements in file management and communications will certainly provide for a much more efficient grievance system for the CAF. DGCFGA will continue to advance this CDS initiative with the purpose of ensuring that members of the CAF are able to receive a complete and timely response to their grievances.

PART IV - CHANGES TO THE CANADIAN ARMED FORCES GRIEVANCE SYSTEM

Having received royal assent on 19 June 2013, Bill C15 introduced four key changes to the CAFGS section of the National Defence Act:

  • The Canadian Forces Grievance Board, an independent external agency whose mandate it is to provide findings and recommendations to the CDS, was renamed “Military Grievances External Review Committee” to better capture the nature of its relationship with the CAF.
  • The CAFGS now includes additional consideration for military judges.
  • The CDS possesses more discretion to delegate his function as FA.
  • The CDS will soon have the authority to cancel an improper release.

In addition to these legislative changes, the Grievance Authority is working diligently to improve many aspects of the grievance system. One of the main initiatives is to improve the responsiveness of the grievance process, with the goal of rendering an FA decision on grievances requiring a review by the CDS within 12 months of the date a grievance is submitted to a CO. To that end, changes to the QR&O received Governor in Council approval and took effect 1 June 2014. DAOD 2017-1 (Military Grievances Process) has been rewritten to reflect these changes as well as provide more detailed guidance to the stakeholders in the grievance process.

The following major changes to the CAFGS took effect on 1 June 2014:

  • A grievance must be submitted within three months (vice six months) after the day the member knew,or ought reasonably to have known, of the decision, act or omission in respect to the matter grieved.
  • Upon receipt of a grievance, a commanding officer who does not have the authority to provide redress (i.e., cannot act as the IA) must forward the grievance within 10 days of receipt to the Grievance Authority.
  • Upon receipt of a grievance, the IA shall consider and determine the grievance within four months
  • (vice two months).
  • Upon receipt of an IA decision, a grievor may elect to have their grievance referred to the CDS for consideration. The request for referral must be submitted by the grievor in writing, contain the reason for the request, and be submitted to the FA within one month (vice 90 days) of receipt of the IA decision.
  • As soon as possible after a grievance has been submitted by a member or as soon as possible after a member indicates an intent to submit a grievance, an officer or a non commissioned member at the rank of sergeant or above will be assigned as an Assisting Member by the CO. Members are not required to avail themselves of the assistance. A member may request that a particular person be assigned. This request will be honoured if it is practical and if the person being asked for is willing to act in that capacity. Where the Assisting Member is unable or unwilling to continue to assist the Member, a new Assisting Member will be assigned.
  • To become familiar with the recent changes, all COs and supervisors are encouraged to review QR&O Chapter 7 and DAOD 2017-1 (the latter of which will be released in mid-2015).

PART V - KEY LESSONS LEARNED – REMEDIAL MEASURES IN THE CANADIAN ARMED FORCES

The Grievance Authority released CANFORGEN 041/14 highlighting key lessons learned with respect to recurring errors and omissions observed by the FA on the use of remedial measures (RMs). These errors  and omissions are the cause of numerous grievances. By paying particular attention to the proper use of, and guidelines on, RMs, CAF members will be better supported while rectifying performance or conduct issues.

RMs are part of a range of administrative measures taken to:

  • sensitize a member to misconduct or unsatisfactory performance;
  • assist a member in remedying the deficiency; and
  • provide a member time to correct the deficiency.

The primary purpose of a RM is to help a member cure a deficiency by providing the necessary details so that the member can understand the deficiency and the expected standard, as well as to provide a  reasonable period of time to overcome the deficiency. It is also essential to provide regular counselling during the monitoring period to support the member. RMs are not a form of punishment. The following additional observations are made to assist those engaged in the process of administering RMs:

  • A Department of National Defence (DND) 2826 form needs to be filled out in its entirety. The CFGA have noted that the paragraph concerning the monitoring period is often missing.
  • The deficiency must be clearly detailed: the member must be able to understand the deficiency and the expected standard. The description (paragraph 2 of DND 2826) and what is expected of a  member (paragraph 5 of DND 2826) must be sufficiently detailed so that the member clearly understands the purpose of the RM and how to correct the deficiency. The CFGA have often noted that the description of the deficiency is not specific enough and the description of the standard is vague. This undermines the effectiveness of the RM.
  • With regards to signing authorities for this document, DAOD 5019 4 (Remedial Measures) is very explicit about who has the authority to sign as an approving authority (see DAOD 5019 4 initiating authority table). A CO or a designated officer holding the appropriate letter of delegation must sign paragraph 7 of DND 2826, and a paragraph 8 must be signed by a commissioned officer.
  • Terminating the application of RM: the RM must be properly and formally terminated. Formal feedback indicating that the member has overcome the deficiency must be provided to the member and included on the personnel file. The CFGA has observed that this conclusion was absent in all cases referred to the FA. Also, the authority that initiates the corrective action must be the authority that terminates it (the same authority). Finally, it is important to make sure that the administration of
  • the RM is well documented and that correspondence and documents are distributed in accordance with the DAOD 5019 series.
  • The member must receive the RM in the language of their choice (English or French).

While these few details may seem trivial, it must be understood that failure to rigorously follow these administrative procedures will serve to undermine the effectiveness of this important tool and continue to place a preventable burden on the grievance system at all levels. Greater attention to detail will instead serve to strengthen the RM program and yield a more effective force.

PART VI - THE ROLE OF THE MILITARY GRIEVANCES EXTERNAL REVIEW COMMITTEE

The Canadian Forces Grievance Board (now referred to as “Military Grievances External Review Committee”, as mentioned earlier in this report) was created on March 1, 2000, in accordance with legislation enacted in December 1998 that included amendments to the National Defence Act (NDA). The purpose of these amendments was to create an organization that would play a role in the Canadian Forces grievance review process in support of the Government of Canada's public policy values of equity, transparency and fairness. The Committee is accountable to Parliament and provides findings and recommendations to the CDS on CAF grievance files that are mandatorily referred to them in accordance with QR&O Chapter 7, article 7.21 (Types of Grievances to Be Referred to Grievances Committee) (e.g., issues related to pay and allowances, reversion to a lower rank, release, freedom of expression, harassment, medical or dental care, and decisions of the CDS). The CDS and DGCFGA may also refer additional files on a discretionary basis to the Committee. The Committee is an administrative organization with quasi judicial powers, independent from the CAF. The Committee provides real value to the CAF grievance process. They will challenge departmental interpretation of Treasury Board policies and other Orders in Council, and they provide recommendations to DND on ways to make policies more consistent with Canadian society. The trend analysis performed by the Committee is also helpful in identifying systemic issues that require further investigation by departmental authorities. When accepted, the  Committee’s systemic issues are added to the list of FA systemic Issues and are tracked to ensure the deficiencies are addressed.

Figure 6

As shown in Figure 6, in 2014, the FA and the Committee agreed 70% of the time on the substantive matter. This number is based solely on whether or not the FA and the Committee found that the member was aggrieved – it does not take into account the redress.The Committee is an important component of the CAFGS. It provides the CDS with independent advice through detailed findings and recommendations. The FA is then in a better position to compare and contrast that advice with the position of the institution and render a fair decision.

PART VII - FREQUENTLY ASKED QUESTIONS

What measures are being taken to improve the fairness of the grievance process?

  • An NOI process has been established to encourage informal, early and local resolution of complaints.
  • New training has been created to prepare Assisting Members on their role in the CAFGS.
  • A new training program has been established for grievance analysts to improve the quality of their advice to IAs.
  • QR&O Chapter 7 has been completely rewritten to clearly establish the responsibilities of all stakeholders (the grievor, the commanding officer, redress authorities and DGCFGA) in the CAFGS.
  • The status of the grievance portfolio is now updated on a monthly basis and available online on the Grievance Authority’s intranet site. The web-based tracking system increases the awareness of commanders at all levels on the status of grievances within their unit/command.
  • The Staff Manual for Military Grievances at the Initial Authority Level has been published to assist with the grievance process.

What measures are being taken to improve the responsiveness of the grievance process?

New capabilities will be made available to all CAF members, including a more descriptive grievance status search, more efficient means of communicating with Grievance Authority and, in 2015, a searchable database containing summaries of past FA decisions. IAs will have access to a mirror copy of the National Grievance Registry to search, review and update their current portfolios. The paper-based grievance process caused delays in the administration of grievances; technology now exists to digitize and streamline the process. This transformation started at the FA level  at the beginning of 2013. As of 1 May 2014, the administration of grievances at the FA level was fully digitized. In 2015, the digitization process will be extended to the IA level. Technology is also being leveraged to establish a web based tracking system that will improve the ability of redress authorities to ensure that each case is being dealt with in accordance with the specific timelines.

If the amount of time granted to the initial authority has been increased from 60 days to four months, won’t the process take longer? How is this more responsive?

A period of four months is more realistic in that it allows the IA to make a fair and impartial determination while maintaining due consideration of the requirement for procedural fairness. For example, a grievor has 21 days to review the documentation that will be placed before the grievance authority and has the opportunity to make representations in response to that documentation. It is unreasonable to believe that complex cases can be adjudicated within the previously-allotted 60-days when the various stages of the grievance process are considered: analysis, disclosure to grievor, grievor representation inresponse to disclosure, and consideration and determination by the grievance authority.

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