# 2010-033 - Abuse of Authority, Administrative Resolution of Grievance, Discrimination, Retaliation, Review of...

Case Summary

F&R Date: 2010–11–04

During a deployment, the grievor was involved in a serious incident with one of his subordinates. Following an on-site investigation, the Commander (Comd) of the Task Force referred the grievor’s case to an appropriate authority so that the charges against him under the National Defence Act could be tried by Court Martial and then ordered his repatriation. Upon the grievor’s return to Canada, the Comd Joint Task Force II (JTF 2) convened an Interim Review Board to determine the grievor’s status pending a verdict by the Court Martial. The Comd JTF 2 then specified that a second Review Board should be held following the disciplinary process. Recognizing the grievor’s outstanding skills and dedication, the Comd decided to temporarily relieve him of his duties as supervisor of his squadron, but retained him as a member of JTF 2. The grievor was posted to another unit for six months and then posted again. During the latter posting, the Comd JTF 2 ordered that the special allowance payments to the grievor be stopped. The complainant’s initial grievance challenged both this decision and the location of the posting. In the meantime, as a result of discussions between the grievor and the Comd JTF 2 concerning the initial grievance, the Comd ordered that the grievor’s special allowances be restored, indicating that he had “won his grievance” and that because he occupied an ERE position he was entitled to the allowances. The grievor received retroactive payment of his allowances up to the date they had ceased. A few weeks later, the new Comd JTF 2 advised the grievor that he (the Comd) felt that his grievance had been resolved through the informal resolution process and reassigned him to a new unit in keeping with the grievor’s request.

In the meantime, after submitting his case to the Canadian Human Rights Commission, the grievor submitted a second grievance in which he claimed that he had suffered discrimination because of his language. The new Comd JTF 2 felt that the first grievance, which dealt with the grievor’s posting and payment of special allowances, had been resolved through an informal resolution process carried out under his predecessor. As for the second grievance, in which the grievor alleged that he had suffered discrimination relating to his language, the new Comd JTF 2 felt that the grievor failed to prove his allegations. The new Comd JTF 2 accordingly denied the second grievance.

At the same time, the court martial on the charges was proceeding too slowly. The Director Military Prosecutions approached the Federal Court of Appeal in order to oblige the chief military judge and administrator of the court martial to convene a court martial to try the charges against the grievor. The debate lasted over two years and induced the Deputy Director of Military Prosecutions to withdraw the charges because of the excessive delays. On receiving the news that the charges had been withdrawn, the new Comd JTF 2 convened a second Review Board, as indicated by his predecessor, to decide on the grievor’s future in the unit. This Review Board concluded that the grievor could no longer be employed in the managed specialty and should be discharged from JTF 2. Less than a month later, the Director Military Careers (D Mil C) confirmed this decision. In his third grievance, the grievor challenged this decision. This grievance went missing, and no decision was rendered at the level of the initial authority (IA). Following a search by Board staff, the grievance was found and was therefore reviewed along with the other two grievances.

Before examining the basis of the grievance, the Board determined that the grievor was not permitted to file a grievance on behalf of his spouse and that the Comd JTF 2 lacked the authority to serve as IA for the second grievance on discrimination, since he was unable to accord the sought-after redress and, as unit commander, was automatically involved in the allegations. The Board began by examining the administrative work carried out by the chain of command in the theatre of operations. It concluded that the decisions to repatriate the grievor and then temporarily divest him of his leadership functions were justified and reasonable. The Board also concluded that the decision to post the grievor, a few months afterward, did not constitute a reprisal measure. Although the grievor had refused to sign documents confirming that his first grievance had been resolved through an informal resolution process, the Board concluded that with respect to the facts on file the grievor had received what he had requested, namely, a new posting and the retroactive payment of his special allowances. That being said, the Board concluded that the Comd JTF 2 lacked the necessary authority to expel the grievor, two years later, from the managed speciality and JTF 2. The D Mil C did possess this authority but nonetheless merely signed his name to the recommendations made by the career manager. The Board also determined that this process did not respect the grievor’s right to procedural fairness, since he was given no opportunity to be heard by the decision-maker, the D Mil C. However, owing to the accumulated delays, the Board recommended that the Chief of the Defence Staff conduct another review of the case rather than return it to the D Mil C. Lastly, the Board looked at the consequences of these decisions on the grievor, ie, his unconditional discharge from JTF 2 and the stoppage of the special allowance payments he had been receiving because of his affiliation with that unit. Considering that the withdrawal of the charges did not constitute sufficient cause for a claim to have lost confidence in the grievor, the Board recommended that the latter be paid the maximum allowance he would have been entitled to receive. The Board concluded, however, that the grievor should not return to service within JTF 2 owing to the gravity of the incidents he had been charged with causing. The Board pointed out that the chain of command had committed errors by failing to take administrative measures against the grievor. The Board concluded that the grievor had failed to demonstrate that he had suffered from discrimination. The Board concluded by issuing systemic recommendations concerning the administrative mechanisms and procedures of JTF 2 and the unit’s administration of special allowances.

CDS Decision Summary

CDS Decision Date: 2011–09–29

The CDS partially agreed with the Board’s findings and recommendations. In fact, only one Board recommendation was not approved by the CDS. While agreeing with the Board that the grievor’s conduct warranted counselling and probation, the CDS did not act on the Board’s recommendation to issue the grievor a recorded warning and amend the PER accordingly.

The CDS concurred with the Board’s systemic recommendation to review Joint Task Force II administrative mechanisms and procedures, particularly as regards the absence of handwritten notes and minutes from the review board. The CDS therefore asked the Comd CANSOFCOM to ensure that these administrative mechanisms and procedures reflect CF expectations and obligations with respect to procedural fairness and transparency.

The CDS also expressed agreement with the Board’s systemic recommendation to review the eligibility criteria for the Special Operations Assaulter Allowance and its administration, asking the Comd CANSOFCOM to ensure that payment of this allowance is in accordance with CBI 205.401(1), which provides that only the CDS can designate positions that will receive the allowance.