# 2011-001 Careers, Procedural Fairness, Removal from Command

Case Summary

F&R Date: 2011–12–29

The grievor received a notice of intent to remove him from command, indicating that his Commander (Comd) had lost confidence in his ability to effectively exercise the function of command. Despite his arguments to the contrary, the grievor was removed and subsequently submitted a grievance. The grievor stated that the complaints from his subordinates were not disclosed to him prior to his removal from command and that those complaints were unfounded. The grievor further argued that the decision to remove him from command was unfair and was done without procedural fairness. As redress, the grievor requested that his professional credibility and reputation be re-established and that his career path be realigned accordingly.

The Board* referred to direction provided by the Chief of the Defence Staff (CDS) entitled "Guidelines - Removal from Command" which state: “Removal from command can have serious career repercussions. Consequently, one should not be removed from command without good and valid reasons and then only after procedural fairness has been afforded…” Procedural fairness should include, at a minimum, that the member be notified, that he or she be given disclosure of all information and documentation to be considered by the decision-maker, and that he be given an opportunity to make representations prior to the final decision being made.

The Board* gathered all documentation considered by the Comd in making his decision to remove the grievor from command. During the course of the investigation, the Canadian Forces chain of command confirmed to the Board* that the grievor did not receive disclosure of the actual complaints or any of the other documents the Comd relied on to make his decision. Accordingly, the Board* found that the grievor was not afforded procedural fairness.

As the grievor should have been entitled to procedural fairness in the course of the decision-making process, the Board* concluded that the original decision should be put aside and the decision should be reconsidered.

Following a thorough review of the evidence, the Board* found that it was unreasonable for the Comd to have concluded that the grievor had to be removed from his command.

The Board* recommended that the CDS uphold the grievance, and that the remedy provided to the grievor include:

• compensation for the lost benefits he would have received from the time he was removed from command;
• restoration, to the extent possible, of the grievor’s credibility, character and reputation; and
• re-alignment, to the extent possible, of the grievor’s career path.

CDS Decision Summary

CDS Decision Date: 2014–02–28

The CDS decided to act as Initial Authority (IA) and completely disagreed with the Committee. He denied the grievance, concluding that the grievor should have known his actions and decisions had a detrimental effect on the morale of his subordinates. It should be noted that the grievor has filed a judicial application in Federal Court, challenging both the CDS decision to act as IA and the merit of his decision.

In his second decision, as the Final Authority (FA), the CDS, disagreed with the Committee's recommendation to uphold the grievance. He recognized that there was a lapse in procedural fairness during the removal from command process, but found that the breach was corrected by the de novo review of the file. The FA reviewed the evidentiary record concerning the allegations against the grievor and found that he demonstrated leadership deficiencies by refusing to recognize and address a significant morale issue amongst his subordinates, which affected their ability to serve the mission. He found that the grievor's conduct, regardless of whether or not the allegations of a personal relationship were founded, breached the trust placed on him as Commanding Officer to effectively lead and command the Task Force. He also found that the reasons provided by the Comd Canadian Expeditionary Force Command (CEFCOM) in the removal from command letter were sound, accurate and justified. Consequently, he agreed with the original decision to remove the grievor from command. The FA nonetheless recognized that the public affairs officer went further than directed when publicly disclosing the nature of the allegations. With regard to the ex gratia payment sought by the grievor, the FA stated that he found that the grievor had not been aggrieved by his removal from command.  The FA offered the grievor his sincere apology for the disclosure and concluded that it was the only proper remedy he could offer, stating that he does not have the authority to accept liability or to assess damages on behalf of the Crown and thus offer any financial compensation. 

* The Board refers to the Military Grievances External Review Committee’s former name, Canadian Forces Grievance Board.