# 2011-034 Careers, Administrative Action, Harassment, Initial Counselling (IC), Recorded Warning

Case Summary

F&R Date: 2011–09–30

While on pre-deployment training, the grievor was issued a number of remedial measures within a span of three weeks and was thereafter returned to unit (RTU'd). The grievor submitted four grievances objecting to the remedial measures and the RTU order, as well as the manner a harassment complaint she submitted against her unit Adjutant (Adjt) was handled by her chain of command.

The first two grievances concerning initial counselling (IC) were denied on the grounds that the grievor's participation and attitude towards training did not meet expectations and that she did not respect the chain of command.

The third grievance was related to the manner her harassment complaint was handled. She contended she felt bullied into an informal resolution and that the content of a closure letter was incorrect. She requested a formal investigation and the removal of the Adjt from his position. In her fourth grievance, the grievor contested the RTU order; she alluded to a breach of procedural fairness in that she was not provided with all documentation and was not given the opportunity to make representations. The grievor also contested a recorded warning (RW) suggesting that the short timeline between the attribution of the IC and the RW did not reflect intent to assist her in improving her performance.

The third and fourth grievances were amalgamated and referred to the Chief of Land Staff as the initial authority (IA). To assist the IA, a synopsis was prepared and disclosed to the grievor who provided additional comments for consideration including statements from other Canadian Forces officers who participated in the same pre-deployment training. The grievor did not allow the IA additional time to render a decision and the file was referred for final authority (FA) adjudication without an IA decision.

At the time of referral to the Board, it was indicated the grievor had withdrawn the grievance pertaining to her harassment complaint; the Board confirmed with the grievor that this was not the case. Furthermore, although the grievor had requested FA adjudication for only two of her grievances, the file contained all four grievances which, in the opinion of the Board, were inter-related as they concerned administrative actions taken against her; consequently, the Board reviewed the file in its entirety.

The Board noted the grievor was not given the opportunity to explain and determined that the documentation considered by the decision-maker on the issue of RTU was not disclosed to the grievor. The Board found that the fundamental ignorance of basic procedural fairness meant that the decision to remove the grievor from pre-deployment training had to be set aside. However, the Board noted the breach of procedural fairness was cured since the grievor had been provided with complete disclosure of her grievance file and was in a position to provide representations. The Board conducted a de novo review of the matter to ascertain whether the grievor's conduct required that remedial measures be taken against her.

The Board reviewed the circumstances leading to each of the remedial measures, the apparent indiscriminate handing out of ICs to other officers - some of which were later removed because the issues were benign and only warranted a simple debrief - as well as the statement of the grievor's supervisor that the grievor displayed an enthusiastic, professional and co-operative attitude towards the training and the mission. The Board concluded there was sufficient doubt about the justification and administration of the remedial measures that they must be struck from the grievor's records.

On the remaining issue, based on the facts presented, the Board found it difficult to understand how a finding that harassment had not occurred could have been made. In the Board's opinion, the allegations clearly met the definition. However, the Board acknowledged that the Adjt had been mentored and counselled for his actions, the same type of measures that would have been appropriate had a finding of harassment been made. The Board saw little point to an investigation since the Adjt admitted the alleged behaviour.

The Board recommended that the Chief of the Defence Staff (CDS) partially uphold the grievances.

The Board recommended that the CDS order the withdrawal of the ICs, the RW and the RTU, as well as all references to them, from the grievor's personnel file and that they be disposed of according to the National Archives of Canada Act.

CDS Decision Summary

CDS Decision Date: 2012–03–12

The CDS agreed with the Board's findings and its recommendation to partially uphold the grievance, and directed that the measures taken against the grievor and the related documents, including those related to the grievor's RTU, be removed from her service file.