Topic: Ex-soldier says army fired her for requesting mat leave

[PMedMoe]

Article Link

A former army reservist claims the Canadian Forces fired her in 2010 after she requested maternity leave.

The 34-year-old woman, who identifies herself as Danielle, has filed a human rights complaint. She says the army discriminated against her because she's a woman.

"I submitted my request for leave and the next day they told me it was refused," Danielle told QMI Agency.

"Less than 24 hours after my request for maternity leave, they said, 'Thank you, good night, we're cancelling (your contract),'" she said.

More at link

I'm thinking there's more to this story than what's in the article.

[CDN Aviator]

I'm thinking there's more to this story than what's in the article.

Of course there is. There always is.

Interesting choice of lawyer..........

[Jim Seggie]

I agree, and the choice of lawyer is interesting as well.

IF (and that is a big if) the CO cancelled the contract for no good reason.....other than her being pregnant.....

[Journeyman]

[Drapeau] "But the military never offered to take her back. To me, this dismissal violates human rights and women's rights."

There you have it; official legal opinion that women are not human.   

[PMedMoe]

There you have it; official legal opinion that women are not human.   

And don't you forget it.   

 

[ArmyRick]

This will be an interesting one to see unfold.

[Jammer]

Michel Drapeau??? Really?

The same talking head that CTV pulls out whenever they need an "expert" opinion on tactics and strategy whenever there is a story on the CF.
Arrrgggghhhh...so much I want to rant about how much this guy doesn't know...(but profess' to).
Agreed....much more to this than meets the eye.

[Haggis]

Why a human rights complaint?  Did she file an unsuccessful redress of grievance?  Did she unsuccessfully engage the CF Ombudsman?  If so, then a Human Rights complaint would be warranted - not before.

Clearly, there are far more details that have yet to come out.

[Robert0288]

A former army reservist

I think it might depend on what kind of contract she was on.  If it was just a Class B 89 day'er I don't think you qualify for benefits.  Then again I've never  had a reason to look at mat leave.

"For her to retain the benefits she received during maternity leave, she would have to return to her work," he said.
"But the military never offered to take her back. To me, this dismissal violates human rights and women's rights."

And I'm very certain that the military isn't obligated to offer Class Bs to anyone except maybe if you are injured while on duty and are unable to work your civy job.

[Chief Stoker]

I think it might depend on what kind of contract she was on.  If it was just a Class B 89 day'er I don't think you qualify for benefits.  Then again I've never  had a reason to look at mat leave.
And I'm very certain that the military isn't obligated to offer Class Bs to anyone except maybe if you are injured while on duty and are unable to work your civy job.

Sounds like she was on a short term Class B, wanted to go on Pata early. Pata ended IAW her contract and that had no new contract for her.

I'm sure the real details will eventually come out though.

[dapaterson]

Why a human rights complaint?  Did she file an unsuccessful redress of grievance?  Did she unsuccessfully engage the CF Ombudsman?  If so, then a Human Rights complaint would be warranted - not before.

Clearly, there are far more details that have yet to come out.

A redress can be effective, but I've also seen a large number that lag and drag.  The Ombudsman has no legal authority.  So pursuing through a quasi-legal body has some merit - it also forces the issue into the open, which is preferable from a public policy perspective (if not from a public relations perspective).

[tree hugger]

One question I have is whether or not she ended up being replaced by someone else on a Class B....

[Chief Stoker]

One question I have is whether or not she ended up being replaced by someone else on a Class B....

Where I work we will try and get a back fill if possible, however often the job goes unfilled until the per comes back off Mata. Is Mata back fill common in the Army reserve?

[Robert0288]

I think it depends on the unit, and if they have money in the budget for replacement class B.  Depending on the job they might be able to fill with random people on class A days as well.  However thats if the contract was with an actual reserve unit.  If the contract was to fill a position within a reg force unit or NDHQ, who knows.  Your back down to bugetary constraints, also there might be a DND civy who can fill the job, contractor, or they might just leave a blank file and let other people in the department fill the void.

edit:
I'm sure other people on here are more familiar with the hiring process of reservists and can give a better answer.

[dapaterson]

I think it depends on the unit, and if they have money in the budget for replacement class B.  Depending on the job they might be able to fill with random people on class A days as well.  However thats if the contract was with an actual reserve unit.  If the contract was to fill a position within a reg force unit or NDHQ, who knows.  Your back down to bugetary constraints, also there might be a DND civy who can fill the job, contractor, or they might just leave a blank file and let other people in the department fill the void.

edit:
I'm sure other people on here are more familiar with the hiring process of reservists and can give a better answer.

(1) For Reg F members going on MATA/PATA, Reserve backfill is paid out of the Reg F pay account, so there is no cost to the unit.

(2) For Res F members going on MATA/PATA, the individual is primarily paid through EI, with only a top-up coming from DND/CF, so there should be funds available to hire a backfill.

This, of course, assumes that you can find someone to fill the position.

[Chief Stoker]

(1) For Reg F members going on MATA/PATA, Reserve backfill is paid out of the Reg F pay account, so there is no cost to the unit.

(2) For Res F members going on MATA/PATA, the individual is primarily paid through EI, with only a top-up coming from DND/CF, so there should be funds available to hire a backfill.

This, of course, assumes that you can find someone to fill the position.

Unfortunately that's very true in MARLANT we rarely get back fills for the small ships. No problem filling shore based positions but nobody wants to go to sea it seems.

[Eye In The Sky]

What is not mentioned in the article is whether or not there was a valid, real, medical reason to support the request for the early mata.  Sometimes what is not  being said is as important/more important, than what is being said.  I.E. draws folks into conclusions based on perceptions rather than facts.  A fact in this case is the direction in QR & O WRT to maternity leave.

AFAIK, only a MO/Dr/BSurg (depending on length of medical leave required) could grant medical leave for valid, real medical reasons before the commencement of maternity leave as detailed in QR & O, Vol 1, Art 16.26(4).  It could be the individual tried to get on mata early thru the medical system, the medical professionals saw no real reason for it/didn't support that, so the mbr requested it thru her unit, which was also denied because the QR & O/CF Policy state when mata leave commences in normal circumstances (max 8 weeks from due date).   

Quick look at our policy:

CF Leave Policy Manual, Section 8.3 Maternity and Parental Leave:

8.3.01 - Authoritative references
The policy guidance for maternity and parental leave benefits is pursuant to:
• QR&O 16.26, Maternity Leave;
• QR&O 16.27, Parental Leave;
• QR&O 9.09, Exemption From Duty and Training – Maternity Purposes
• QR&O 9.10, Exemption From Duty and Training – Parental Purposes
• CBI 205.461, Maternity and Parental Allowances;
• DAOD 5001-2, Maternity and Parental Benefits; and
• A-PM-245-001/FP-011 Chapter 17 Maternity and Parental Benefits Administration.

Internet link and content of QR & O directive from the CF Leave Policy Manual (highlighted in yellow, 9.09 does not apply as mbr was on Cl B) on maternity leave is below for info:

http://www.admfincs.forces.gc.ca/qro-orf/vol-01/doc/chapter-chapitre-016.pdf

16.26 – MATERNITY LEAVE

(1) (Application) This article applies to an officer or non-commissioned member of the Regular Force or the Reserve Force on Class “B” or “C” Reserve Service.

(2) (Definition) In this article, "maternity leave" means a period of leave without pay and allowances granted to an officer or non-commissioned member for maternity purposes.(20 July 2006)

(3) (Eligibility) An officer or non-commissioned member who has been pregnant for at least 19 weeks is entitled, on request, to maternity leave for a period of up to the sum of the applicable periods of entitlement referred to in CBI subparagraph 205.461(4)(a) (Maternity and Parental Allowances) and paragraph 205.461(7). (20 July 2006)

(4) (Start and End of Period) Subject to paragraphs (5), (7) and (8.), the period of maternity leave shall not start more than 8 weeks before the expected date of birth and shall end not later than 18 weeks after the date of the end of the pregnancy. (20 July 2006)

(5) (Extension) The end date of the period of maternity leave shall be extended by any of the following periods:
(20 July 2006)

(a) any period during which one or more new-born children are hospitalized, if the officer or non-commissioned member has not yet started the period of the maternity leave; and (20 July 2006)

(b) any period during which the officer or non-commissioned member, having started but not ended the period of the maternity leave, returns to duty while one or more new-born children are hospitalized. (20 July 2006)

(6) (Military Requirements) When an officer or non-commissioned member has started but not ended maternity leave, a commanding officer may direct that the member return to duty because of imperative military requirements.

(7) (Maternity Benefits Extended) If a period of maternity benefits received under the Employment Insurance Act, or a provincial law or scheme, is extended in accordance with the Employment Insurance Act or the provincial law or scheme because the officer or non-commissioned member returns to duty under paragraph (6), the end date of the period of maternity leave granted shall be extended by the period that the maternity benefits are extended under the applicable law or scheme. (20 July 2006)

(8.) (Limitation) A period of maternity leave extended under paragraphs (5) or (7) shall not end later than 52 weeks after the date of the end of the pregnancy.

The article leaves more questions than answers, and almost anyone in the CF can quickly see there is simply not enough fact there to make any reasonable guess at what actually happened (Did the mbr griev the decision to her CO in writing IAW QR & O Vol 1, Chap 7?  When was the original end date of the Cl B?  Was it CL B or B annotated A?  Was her position one of the ones cut with many other Cl B's that were/are supposed to be not renewed with the change of the PRes post-report from LGen (retired) Leslie and regardless of the pregnancy, her CL B was to be not renewed regardless? )  Thats just a start of questions IMO.

Regardless, I am sure any story comments will be filled with the usual abundance of comments from the uninformed, anti Harper, armchair experts calling for the resignation of the MND, CDS and PM   

 

[recceguy]

The whole thing looks engineered by Drapeau to try embarass the military and the government into an early out of court settlement, complete with the obligitory non disclosure agreement.

[Journeyman]

My thoughts exactly.

My initial thought was that the lawyer's case is so weak that he's leading with 'the court of public opinion'  (you know, since we're all throwing out our best unsubstantiated guesses     ).

I'll leave it at that....and not lose any sleep whatsoever waiting for the next media soundbite.

[dapaterson]

From the scant details posted in the article, I'd say the CF should be worried.  Looking at the forms needed to request MATA/PATA, a clerk must certify that the individual going on leave has sufficient time remaining in their period of service to work one day for each day of MATA/PATA they receive.

Thus, in this case, the plaintiff signed a formal document in which the CF confirmed that she would be employed full-time on return from MATA/PATA and thus was entitled to the allowance.  Now, on return from leave, the CF has altered that and said "No, you're not going to work full time" - and now wants her to pay back the allowance.

While the CBI does not address the specific situation of a full-time reservist being reverted to part-time status, it does include consideration for when members are released due to a reduction in strength - in that case, they are not required to repay the allowance.  Arguably this is a similar situation (a reduction in the number of full-time Reserve Force personnel).

In this cast Me Drapeau is acting in his client's best interest - the deadline to repay has been set as 01 Feb.  DND/CF is slow to work things at the best of times; by pushing this into the public, the system will be forced to be somewhat faster in its response.

[Eye In The Sky]

From the scant details posted in the article, I'd say the CF should be worried.  Looking at the forms needed to request MATA/PATA, a clerk must certify that the individual going on leave has sufficient time remaining in their period of service to work one day for each day of MATA/PATA they receive.

Thus, in this case, the plaintiff signed a formal document in which the CF confirmed that she would be employed full-time on return from MATA/PATA and thus was entitled to the allowance.  Now, on return from leave, the CF has altered that and said "No, you're not going to work full time" - and now wants her to pay back the allowance.

Maybe I am missing something, and I did re-read the article, but I don't see where it states what paperwork as signed, other than a request for materinty leave that was denied.  There are too many important dates not included in the article, and likely not inclued as they don't support the position of the plantiff.  The rest of it is "he said, she said" and even that is only on the part of the former member.

But as you said, the details are scant.   

While the CBI does not address the specific situation of a full-time reservist being reverted to part-time status, it does include consideration for when members are released due to a reduction in strength - in that case, they are not required to repay the allowance.  Arguably this is a similar situation (a reduction in the number of full-time Reserve Force personnel).

I'm not seeing where it says what her release article was, only that she was a 'former' Reservist.  And I personally don't see "your Class B service is over/ends on this date" as "you are being released".  She might have released after her CL B *fulltime employment* was over of her own desire...who knows?

I spent my fair share of time on Class A/B/B(a) service and one thing I always knew on B(a) was the CF could end the contract with 30 days notice, the same as I could. 

[bluebelle]

From the scant details posted in the article, I'd say the CF should be worried.  Looking at the forms needed to request MATA/PATA, a clerk must certify that the individual going on leave has sufficient time remaining in their period of service to work one day for each day of MATA/PATA they receive.

Thus, in this case, the plaintiff signed a formal document in which the CF confirmed that she would be employed full-time on return from MATA/PATA and thus was entitled to the allowance.  Now, on return from leave, the CF has altered that and said "No, you're not going to work full time" - and now wants her to pay back the allowance.

While the CBI does not address the specific situation of a full-time reservist being reverted to part-time status, it does include consideration for when members are released due to a reduction in strength - in that case, they are not required to repay the allowance.  Arguably this is a similar situation (a reduction in the number of full-time Reserve Force personnel).

In this cast Me Drapeau is acting in his client's best interest - the deadline to repay has been set as 01 Feb.  DND/CF is slow to work things at the best of times; by pushing this into the public, the system will be forced to be somewhat faster in its response.

Very few details in the article so it's a little difficult to decipher where she stands but,

1. Mata benefits on Cl B  (or C) reserve service would be paid out until when your contract normally would have ended.
2. The EI payments based upon your 12 months of employment prior to mata/pata leave would still be paid in accordance with EI benefits.
3. Reserve Mata benefits can be repaid on Cl A service, ie the clerks determining you have sufficient time remaining in your terms of service only have to ensure you won't reach mandatory retirement age prior to paying back your mata benefits.  (The individual also has an obligation to work that time in order to repay the benefits, if they release voluntarily or NES prior to paying back the benefits they would be required to pay the crown back)

My understanding from the article is not that she was released, only that her cl B contract was cut.  As there is no mention of why in the article it is purely speculation, she may have been cut due to normal cost cutting, she may have been reaching the end of a contract, or she may have been fired because the unit didn't want to pay mata benefits, in which case the CF does have something to worry about

[Jim Seggie]

Its not the details of this that will worry those that are supposed to worry about this - its the perception of the public that counts.

And right now the public will perceive this as the CF ( hereafter known as "the big bad meanie") against the poor downtrodden "militia" woman who is being opressed.

The only thing the CF can do is reiterate its policies WRT Class B etc.....which no one will listen to or care about.

[dapaterson]

Permit me to expand:  The article states:

...the Canadian Forces initially agreed to pay maternity benefits.

But after her child was born, she says the department demanded she reimburse the money.

...

Drapeau said the department has placed his client in a catch-22

"For her to retain the benefits she received during maternity leave, she would have to return to her work," he said.

"But the military never offered to take her back. ..."

To get the allowance, a clerk must certify that time remains to work off, day for day, the period for which MATA/PATA was received.   So there's something rotten in the state of Denmark here; if the paintiff must repay, is the CF also pursuing disciplinary action against the clerk who appears to have made a false entry in a document?


And re: release: I apologize for not being clear.  She has not released.  However, the CBI states that you are not obliged to repay the allowance if you don't serve on return if you release due to a change in the authorized strength of the CF.  While not identical, this situation may be sufficiently similar - her period of full-time service was cancelled, likely due to the top-down directed ongoing reductions to the number of full-time Reservists.

(This also highlights the problems with much of our current management of the Reserves, but that's a whole other long list of threads...)

[CountDC]

I would agree recce.

Noticed they do not mention what kind of "contract" she had or the period of it.

"Thus, in this case, the plaintiff signed a formal document in which the CF confirmed that she would be employed full-time on return from MATA/PATA and thus was entitled to the allowance.  Now, on return from leave, the CF has altered that and said "No, you're not going to work full time" - and now wants her to pay back the allowance."

I don' get that.  It states that her initial request was refused and her "contract" cancelled prior to her MATA.   Could it be that her mata was approved for her to come back on Class A service and she did not show up thus they are now after the benefits back?  How long "after her child was born" did they demand she pay it back?  As far as that goes has her MATA even expired - it appears the baby would have been born in 2011 and mata can be up to year.  If it is a matter of "you're not going to work full time" then they shouldn't be demanding a payback unless she has refused to parade Class A.

it is interesting that they state the military never offered to take her back.  Did she show up for a training night and they told her to go away?

Something that I have seen come up in the past is the clerk issue.  I would not count on the fact that a clerk certified as sealing a case.  I can recall a case where a chief tried using that.  It was determined that the clerk was not a legal representative of the Canadian Forces and was only certifying the information to the best of his knowledge at the time (can't remember the exact wording).  The end result was the chief lost.
I would wager the same argument could be used in this case along with that the clerk was not giving any guarantee of future employment, merely stating that member could do the time under their current period of service which was subject to change (30 days notice still?).

Certainly is a lot missing from this story. Be interested in viewing all the documentation on this one but of course we never will.