# 2017-045 Careers, Initial Counselling, Recorded Warning, Remedial Measures

Case summary

F&R Date: 2018-09-05

The grievor argued that the principles of procedural fairness had not been respected in the imposition of two remedial measures, since he had not received prior notice of his alleged deficiencies and was not given the opportunity to provide his version of the facts, thereby depriving him of an unbiased decision. He sought the removal of the remedial measures from his personnel file and the abandonment of any other proceedings connected with the incidents cited. 

The Initial Authority (IA) agreed with the grievor regarding the breach of procedural fairness, but held that the breach had been cured through the grievance process. Nevertheless, the IA concluded that the two remedial measures were justified and did not grant the remedy sought. 

The Committee noted that a breach of procedural fairness does not have the effect of invalidating the imposition of a remedial measure. With respect to the first remedial measure, the Committee found that it was unnecessary to impose such a measure because the incident was isolated and relatively minor, and the unit's delay in administering the remedial measure was unreasonable. The Committee therefore recommended that it be rescinded and removed from the grievor's personnel file. With respect to the second remedial measure, because this was the first notice given for this type of conduct and there were mitigating factors in the grievor's favour, the Committee recommended that the remedial measure be removed from the grievor's personnel file and replaced by a lower-level remedial measure.

FA decision summary

The Commander Canadian Army, as the Final Authority (FA) in this file, agreed with the Committee's recommendation to partially grant redress. The FA reiterated comments by the Chief of the Defence Staff (CDS) regarding the application of the principles of procedural fairness to the issuance of all remedial measures, although Defence Administrative Order and Directive 5019-4 does not expressly provide for it. The FA set out the minimal requirements to be respected and cancelled the two remedial measures given those requirements were not met. He noted that the chain of command had not undertaken any measure to address the grievor's reported shortcomings and that the latter had been transferred to the Joint Personnel Support Unit (JPSU) during the same period for medical reasons. The FA mentioned that the request for transfer to the JPSU indicated that [TRANSLATION] "remedial or disciplinary measures were not appropriate in your case". The FA found, as did the Committee that the first incident did not warrant a remedial measure. However, with regard to his many late arrivals, the FA concluded that the grievor had received sufficient support and warnings to warrant an Initial Counselling. As the grievor has since been released, the FA did not order that a remedial measure be issued. Thus, the FA only ordered that both remedial measures be removed from the grievor's file.