http://www.psacbc.com/human-rights/workforce-adjustment-and-workers-disabilities
By Matt Edwards
Did you know that the Federal government workers have a job for life?
In 1982 a deal was signed where workers who have their jobs taken away are given another job at the same level or you get paid at the same level at least. This is known as “red-circling.” It is known as Work Force Adjustment (WFA).
The government also has an anti-discrimination program known as Employment Equity. Part of that is the Duty To Accommodate (DTA). That means they must try and help you stay in the work force if you are disabled. It isn’t totally open-ended but a large employer like Canada cannot claim they would go out of business because of DTA.
As these articles focus on veterans, here is the catch. The Canadian Forces has an “out” for DTA. Canada placed a clause in the Canadian Human Rights Act, s. 15(1)(a), where a “Bona Fide Occupational Requirement (BFOR)” excludes the practice as discrimination.
The effect of this is still discriminatory. A disabled soldier had his job taken away. His career is gone. He can no longer care for himself or his family. If the soldier was wounded in a Special Duty Area, it does not matter. The CF’s Universality of Service (UoS) policy will kick in at some point. Some soldiers are allowed to continue the profession of arms for a period. On paper it is three years. In practice it can be longer. If push comes to shove though, they will be turfed.
Is this fair? How can our country turn it’s back after it placed the soldier in harm’s way? How can they justify that odious practice? The UoS & BFOR are their stock answer. All soldiers must be able to soldier. Certain tasks must be met to stay in service. Many soldiers beg to stay in service only to be met with deaf ears. The CF Ombudsman has addressed this in the past.
Ottawa Citizen Reporter David Pugliese reported on October 14, 2014:
Almost a year after facing a barrage of bad publicity, National Defence is having another look at a policy that ended the careers of gravely injured soldiers who wanted to remain in uniform, Murray Brewster of the Canadian Press is reporting.
More from his article:
Defence Minister Rob Nicholson has told a House of Commons committee that a working group was set up last summer to study the military’s universality of service rule, which has been used as a pretext to release wounded combat veterans, many of them with post-traumatic stress.
At stake is the delicate balance between an individual’s desire to serve and the need for troops to be fit enough to deploy for operations both at home and abroad, Nicholson said in a seven-page letter to Commons defence committee.
“This working group is examining how the policy can be best applied to retain individuals who are willing and able to serve, while also ensuring the necessary availability of all Canadian Armed Forces personnel to perform their lawful military service,” he said.
Why can’t the WFA policy be extended to the wounded soldier? It would seem fair for the CF to try and “accommodate” the wounded warrior first, then DND, then the Public Service. Here are many jobs that civic minded veterans can do. If the CF can accommodate them, they can even stay in service. The problem, from the CF’s viewpoint, is that our military is small and each “accommodated” soldier takes a position from a fully capable person that they could send anywhere, any time.
The world is changing, however. Soldiers don’t want welfare. They want to contribute, if they are allowed.
Consider the advantages:
1. They are trained. This will save the $250,000 cost of training a new soldier.
2. They are indoctrinated. Many civilians are not used to the disciplined life in the military & leave during training or soon thereafter.
3. They are motivated. They decided to pursue a career that could get them killed.
4. It serves a public policy purpose in that the disabled are “accommodated.”
Consider a Canadian priority of late, the Arctic. What is to say that we could not patrol the Arctic with drones. A person sitting far away from the drone can control the vehicle and exercise sovereignty. Many drone models can do this, both stealthily and normally. Many drones have long loiter times which would prove invaluable in patrolling the Arctic’s vast space. Many different sensors could be fitted, not just visual.
Canada has a lot of coastline. We could develop marine autonomous vessels to patrol this area as well. Perhaps a significant investment in this technology early could be more economical than the traditional Naval vessel.
These are suggestions only, there are many options. The key though, is treating the soldier as if he is not disposable. Soldiers should get the same or better treatment as a Public Servant. A Public Servant has, however, unions to look after their interests. This begs the question, why aren’t soldiers getting treated right? The idea of unions is very divisive. Someone must look after the interests of the soldier, however. The soldier’s interests are not always the same as the government’s interest.
That leads to the CF & Veteran’s Ombudsmen. Sadly, it seems that these offices are flawed badly. Several public documents show a decided lack of objectivity. Frankly, they are siding with the government.
For example, OVO Guy Parent was questioned about the Earnings Loss Benefit retroactivity after the Manuge case went back to 1976. He stated it was fair for VAC to do so! He swallowed the answer hook line and sinker. That is not the job he is being paid to do. He is basically, to represent the CF member. He must support the member.
Here is a quote from his publicly available comments:
Numerous veterans have called my office to complain that the short periods of retroactivity are not fair. They argue that the Federal Court settlement under the Manuge v. Canada case provides retroactivity back to 1976 for the Canadian Forces service income security insurance plan, known as SISIP. Consequently, they believe the retroactivity for the affected Veterans Affairs Canada programs should be provided to the date the programs came into force.
SISIP clients are receiving retroactivity going back to the start of the program, because in the context of an insurance contract, the offsetting of the disability pension as income was unlawful. However, Veterans Affairs Canada was operating within the full context of the legislation
In essence, he is saying VAC acted within the Law. So did SISIP, until a Judge said otherwise. SISIP offset the Pension Act payments as per the policy, an insurance contract. Contract Law. Until this was pointed out in the class action, everyone was told it was OK to take the Pension Act money from the disabled veteran.
Look at this analogy to show the legality of the “front door” approach versus the “back door” approach:
Veteran gets full SISIP payment.
He applies for the Pension Act benefit.
Veteran keeps full SISIP payment and the PA payment is available for SISIP to take directly (front door) rather than indirectly (back door).
SISIP would have to request that VAC pay them the money directly but VAC would likely say no as it would be a violation of PA s. 30(1).
30. (1) No award shall be assigned, charged, attached, anticipated, commuted or given as security, and the Minister may refuse to recognize any power of attorney granted by a person with reference to the payment of an award.
Exemption from seizure and execution
(1.1) An award is exempt from seizure and execution, either at law or in equity.
Notably, it states Law or Equity. That means it cannot be set off in Law (statute law) or Equity (law of equity). An equitable set off is when there is a moral obligation to pay something back even if it is not legally required to be paid back. Think of the Rosa Parks incident. It was not an Equitable Law to segregate black and white people on a bus. It was legal but not Just.
That brings us back to the OVO’s comment. He fails to take Equity into account. It is not Equitable to only give ELB veterans a few months retroactive benefits when SISIP beneficiaries got up to 36 YEARS! He should not just accept that position but should rail against the government for such an obvious injustice!
Obvious injustice.
Like soldiers not being accommodated!
How can we let this happen in Canada?
Why isn’t the OVO doing his job?
Veterans deserve the chance to be self-sufficient & this failure to accommodate is part of the problem.
Perhaps someone should remind Canada about Charter s. 15(1)?
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Equal.
Are veteran’s being treated equally under the law when a Public Servant gets DTA but he does not?
Is the CF’s BFOR even valid in light of the Charter?
No right answer, anyone can see that soldiers have a tough job to do. It is a policy decision though to apply UoS, making the soldier leave his career.
Is this the right policy for Canada, especially given the problem of attracting new recruits?
Did you know that the Federal government workers have a job for life?
In 1982 a deal was signed where workers who have their jobs taken away are given another job at the same level or you get paid at the same level at least. This is known as “red-circling.” It is known as Work Force Adjustment (WFA).
The government also has an anti-discrimination program known as Employment Equity. Part of that is the Duty To Accommodate (DTA). That means they must try and help you stay in the work force if you are disabled. It isn’t totally open-ended but a large employer like Canada cannot claim they would go out of business because of DTA.
As these articles focus on veterans, here is the catch. The Canadian Forces has an “out” for DTA. Canada placed a clause in the Canadian Human Rights Act, s. 15(1)(a), where a “Bona Fide Occupational Requirement (BFOR)” excludes the practice as discrimination.
The effect of this is still discriminatory. A disabled soldier had his job taken away. His career is gone. He can no longer care for himself or his family. If the soldier was wounded in a Special Duty Area, it does not matter. The CF’s Universality of Service (UoS) policy will kick in at some point. Some soldiers are allowed to continue the profession of arms for a period. On paper it is three years. In practice it can be longer. If push comes to shove though, they will be turfed.
Is this fair? How can our country turn it’s back after it placed the soldier in harm’s way? How can they justify that odious practice? The UoS & BFOR are their stock answer. All soldiers must be able to soldier. Certain tasks must be met to stay in service. Many soldiers beg to stay in service only to be met with deaf ears. The CF Ombudsman has addressed this in the past.
Ottawa Citizen Reporter David Pugliese reported on October 14, 2014:
Almost a year after facing a barrage of bad publicity, National Defence is having another look at a policy that ended the careers of gravely injured soldiers who wanted to remain in uniform, Murray Brewster of the Canadian Press is reporting.
More from his article:
Defence Minister Rob Nicholson has told a House of Commons committee that a working group was set up last summer to study the military’s universality of service rule, which has been used as a pretext to release wounded combat veterans, many of them with post-traumatic stress.
At stake is the delicate balance between an individual’s desire to serve and the need for troops to be fit enough to deploy for operations both at home and abroad, Nicholson said in a seven-page letter to Commons defence committee.
“This working group is examining how the policy can be best applied to retain individuals who are willing and able to serve, while also ensuring the necessary availability of all Canadian Armed Forces personnel to perform their lawful military service,” he said.
Why can’t the WFA policy be extended to the wounded soldier? It would seem fair for the CF to try and “accommodate” the wounded warrior first, then DND, then the Public Service. Here are many jobs that civic minded veterans can do. If the CF can accommodate them, they can even stay in service. The problem, from the CF’s viewpoint, is that our military is small and each “accommodated” soldier takes a position from a fully capable person that they could send anywhere, any time.
The world is changing, however. Soldiers don’t want welfare. They want to contribute, if they are allowed.
Consider the advantages:
1. They are trained. This will save the $250,000 cost of training a new soldier.
2. They are indoctrinated. Many civilians are not used to the disciplined life in the military & leave during training or soon thereafter.
3. They are motivated. They decided to pursue a career that could get them killed.
4. It serves a public policy purpose in that the disabled are “accommodated.”
Consider a Canadian priority of late, the Arctic. What is to say that we could not patrol the Arctic with drones. A person sitting far away from the drone can control the vehicle and exercise sovereignty. Many drone models can do this, both stealthily and normally. Many drones have long loiter times which would prove invaluable in patrolling the Arctic’s vast space. Many different sensors could be fitted, not just visual.
Canada has a lot of coastline. We could develop marine autonomous vessels to patrol this area as well. Perhaps a significant investment in this technology early could be more economical than the traditional Naval vessel.
These are suggestions only, there are many options. The key though, is treating the soldier as if he is not disposable. Soldiers should get the same or better treatment as a Public Servant. A Public Servant has, however, unions to look after their interests. This begs the question, why aren’t soldiers getting treated right? The idea of unions is very divisive. Someone must look after the interests of the soldier, however. The soldier’s interests are not always the same as the government’s interest.
That leads to the CF & Veteran’s Ombudsmen. Sadly, it seems that these offices are flawed badly. Several public documents show a decided lack of objectivity. Frankly, they are siding with the government.
For example, OVO Guy Parent was questioned about the Earnings Loss Benefit retroactivity after the Manuge case went back to 1976. He stated it was fair for VAC to do so! He swallowed the answer hook line and sinker. That is not the job he is being paid to do. He is basically, to represent the CF member. He must support the member.
Here is a quote from his publicly available comments:
Numerous veterans have called my office to complain that the short periods of retroactivity are not fair. They argue that the Federal Court settlement under the Manuge v. Canada case provides retroactivity back to 1976 for the Canadian Forces service income security insurance plan, known as SISIP. Consequently, they believe the retroactivity for the affected Veterans Affairs Canada programs should be provided to the date the programs came into force.
SISIP clients are receiving retroactivity going back to the start of the program, because in the context of an insurance contract, the offsetting of the disability pension as income was unlawful. However, Veterans Affairs Canada was operating within the full context of the legislation
In essence, he is saying VAC acted within the Law. So did SISIP, until a Judge said otherwise. SISIP offset the Pension Act payments as per the policy, an insurance contract. Contract Law. Until this was pointed out in the class action, everyone was told it was OK to take the Pension Act money from the disabled veteran.
Look at this analogy to show the legality of the “front door” approach versus the “back door” approach:
Veteran gets full SISIP payment.
He applies for the Pension Act benefit.
Veteran keeps full SISIP payment and the PA payment is available for SISIP to take directly (front door) rather than indirectly (back door).
SISIP would have to request that VAC pay them the money directly but VAC would likely say no as it would be a violation of PA s. 30(1).
30. (1) No award shall be assigned, charged, attached, anticipated, commuted or given as security, and the Minister may refuse to recognize any power of attorney granted by a person with reference to the payment of an award.
Exemption from seizure and execution
(1.1) An award is exempt from seizure and execution, either at law or in equity.
Notably, it states Law or Equity. That means it cannot be set off in Law (statute law) or Equity (law of equity). An equitable set off is when there is a moral obligation to pay something back even if it is not legally required to be paid back. Think of the Rosa Parks incident. It was not an Equitable Law to segregate black and white people on a bus. It was legal but not Just.
That brings us back to the OVO’s comment. He fails to take Equity into account. It is not Equitable to only give ELB veterans a few months retroactive benefits when SISIP beneficiaries got up to 36 YEARS! He should not just accept that position but should rail against the government for such an obvious injustice!
Obvious injustice.
Like soldiers not being accommodated!
How can we let this happen in Canada?
Why isn’t the OVO doing his job?
Veterans deserve the chance to be self-sufficient & this failure to accommodate is part of the problem.
Perhaps someone should remind Canada about Charter s. 15(1)?
Equality before and under law and equal protection and benefit of law
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Equal.
Are veteran’s being treated equally under the law when a Public Servant gets DTA but he does not?
Is the CF’s BFOR even valid in light of the Charter?
No right answer, anyone can see that soldiers have a tough job to do. It is a policy decision though to apply UoS, making the soldier leave his career.
Is this the right policy for Canada, especially given the problem of attracting new recruits?
http://nupge.ca/content/3460/chrt-issues-key-decision-duty-accommodate
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