# 2013-053 - Administrative Review, Harassment, Promotion, Release, Remedial Measures

Case Summary

F&R Date: 2013–10–31

The grievor filed a first grievance relating to the deferment of his promotion, his failure on a re-course (Phase IV – Land Environment), numerous administrative measures taken against him, five personnel evaluation reports and the harassment he allegedly suffered. Following an administrative review resulting in his release from the Regular Force, the grievor filed a second grievance contesting this decision.

The initial authority partially upheld the grievance. He first noted that an administrative error in the processing of the promotion had been acknowledged and remedied to the grievor's satisfaction. Regarding the personnel evaluation reports, the initial authority stressed that despite the identified errors the individual personnel evaluation reports remained valid; however, he ordered that corrections be made.

The Initial Authority (IA) concluded that the harassment investigation had been carried out in accordance with the Harassment Prevention and Resolution Guidelines and that only one allegation was founded.

Regarding the remedial measures taken against the grievor, the IA concluded that all save one had failed to comply with Canadian Forces Administrative Order 26-17 (Recorded Warning and Counselling and Probation) in effect at the time, quashing the non-compliant measures.

On the issue of the grievor's failure on the re-course, the IA concluded that all the foremost causes of the failure were related to individual factors and to the grievor's failure to meet the course standards a second time.

First grievance. The Committee concluded that the matter of promotion to the rank of captain was closed and indicated its agreement with the measures ordered by the IA regarding the grievor's personnel evaluation reports.

Harassment. The Committee concluded that two and not one of the grievor's allegations against the former unit commanding officer were founded. The Committee also concluded that the actions and conduct of the former commanding officer surrounding a third incident constituted harassment against the grievor. The Committee was of the opinion that the three harassment incidents were serious enough to warrant issuance of a recorded warning to the commanding officer.

Regarding the administrative measures, the Committee concluded that, given the IA's decision with respect to the remedial measures, the administrative review for violation of counselling and probation that led to the grievor's release was premature under the circumstances.

Failure in training. The Committee was of the opinion that it would be inappropriate to credit the grievor with his Phase IV because he had not passed the course owing to his failure on certain performance objectives. However, the Committee concluded that under the circumstances sending the grievor on his Phase IV re-course was premature.

Second grievance. The Committee concluded that since it had been premature to hold the administrative review, the grievor's second grievance automatically became obsolete. The Committee did note, however, that the commander who had taken the decision to release the grievor lacked the requisite authority to approve the release.

The Committee recommended that the CDS grant the grievor partial redress.

The Committee recommended that the CDS order the issuance of a recorded warning to the grievor's former commanding officer.

The Committee recommended that the CDS order the grievor's transfer from the Reserve Force to the Regular Force and that the grievor be given the opportunity to complete his Phase IV training.

The Committee recommended that the CDS forward the grievor's file to the Director Human Rights and Diversity to allow for a negotiated settlement to the harassment issue.

FA Decision Summary

The CDS partially concurred with the Committee's findings and recommendations. The CDS first determined that he could not give any weight to the grievor's allegations, as there was no documentary evidence to support the witness's statements as reported by him. The CDS found that responsibility for the grievor's failure at his second attempt at Phase IV must be shared; the chain of command had a responsibility to provide an OJT to address the shortcomings identified by the training establishment, but the grievor had the responsibility to adequately prepare for the course. In that regard, the CDS disagreed with the grievor as to the extent to which a letter sent by his CO to the CO of the training establishment had an impact on his chances of success, but agreed with the Committee that it was inappropriate in the circumstances and that it should be removed from the grievor's file. While the Committee had recommended that the CO be advised of this mistake without further action, the CDS found that this was not part of the grievance resolution process. The CDS considered the grievor's request to be retroactively promoted to the rank of Capt and subsequently to the rank of Major. As the grievor did not successfully complete Phase IV, the CDS found that he had not attained the Operational Function Point for his occupation, thus he did not meet the criteria for promotion to that rank. It follows that given the grievor did not qualify for promotion to the rank of Capt, he could not qualify for promotion to the rank of Maj. The CDS did not agree with the Committee's recommendation that the grievor be given a third and final opportunity to attempt Phase IV. Finally, the CDS concurred with the Committee's recommendation to remove records of the remedial measures taken against the grievor from his personnel file, as they did not comply with the applicable policy. However, owing to the grievor's subsequent release, the CDS did not deem it required to determine whether new remedial measures were warranted.

With regard to the grievor's allegations of harassment, the CDS found that the investigation complied with the requirements of the policy and that the investigators had carried out a detailed assessment of his allegations. However, the CDS only partially agreed with the Committee's findings, in that he determined that none of the allegations were proven. The CDS did not agree with the Committee that a person's “intent” cannot be factored in considering whether an allegation is proven or not. The CDS was of the view that, in considering the criteria “knew or ought to have known would cause harm”, under the circumstances an element of intent had a bearing on the determination. Thus. Although the CO had been inept in formulating his comments to the grievor, she did not intent to harm him and under these circumstances,she could not have known or reasonably known that his comments would cause harm to the grievor.

Lastly, The CDS did not agree with the Committee's recommendation that the grievor's former CO be issued with a RW, finding that the measures already taken where commensurate with the noted shortcomings. Given the preceding, the CDS was of the view that there was no basis on which to refer the file for assessment by the Director Human Rights and Diversity.