# 2011-042 Careers, Abuse of Authority, Harassment, Interests of justice, Recorded Warning

Case Summary

F&R Date: 2011–09–30

The grievor, a reservist, was released from the Canadian Forces (CF) following a process that had been initiated nearly three years previously. The grievor filed grievances concerning his release and the administrative action surrounding it.

The grievor asked that he be reinstated in the Naval Reserve or the Air Reserve. He also asked that he be paid the wages he would have earned had he been authorized to work, a compensatory amount for the time spent preparing his grievances and harassment complaints, and moral damages.

After the grievor failed one of the modules of a course, a recommendation was made that he be released. As a result of that recommendation, an administrative review (AR) was launched, but the AR was suspended when the grievor filed a complaint in which he claimed to have been harassed by the instructors during the course in question. Sixteen months later, it was determined that the complaint was founded, and the grievor was invited to retake his training. At that point, the AR resumed and, because the grievor had still not retaken his training, as he had not been available because of his civilian employment, a second recommendation for release was made and the appropriate approving authority ordered that the grievor be released.

The Board noted that the initial recommendation for release had been disclosed to the grievor almost nine months after the fact, including a period of approximately one month between the time the unit had received the documents to be disclosed and the disclosure itself. Although the grievor had still had the opportunity to submit his representations, the Board was of the opinion that the process should include a provision requiring that individuals subject to such action be informed immediately.

The Board agreed with the commanding officer’s decision to give the grievor the opportunity to retake his course following the conclusions of the harassment investigation. According to the Board, this decision was justified and appropriate because although the harassment did not excuse the fact that the course had ended in failure, it had unquestionably been detrimental to the grievor’s performance. However, CF members must show that they have the skills to serve in the CF and, therefore, the grievor needed to retake his training.

The Board concluded that because of the conclusions of the harassment investigation, it was unreasonable for the previously initiated release process to have resumed. The Board was convinced that if the grievor had been informed of the importance of taking his training and that doing so would have cancelled the initial recommendation for release, he would have acted differently.

Under the circumstances, the Board concluded that the grievor should not have been released, but added that the Chief of the Defence Staff (CDS) does not have the authority to order that a wrongly released member be reinstated. The Board also concluded that filing grievances and complaints is a personal decision, and the policies do not allow for any remuneration for time spent on such pursuits. In addition, reservists are only paid for time spent on service or training; for that reason, the Board could not recommend that the CDS follow up on the grievor’s request in that regard. Lastly, concerning a lump sum payment for moral damages, the Board noted that the grievor had already been informed of the procedure to follow should he wish to pursue that avenue.

The Board recommended that the CDS partially allow the grievances.

The Board recommended that the CDS acknowledge that the grievor should not have been released, and that his files be annotated accordingly.

The Board also recommended that should the grievor choose to re-enrol, the CDS facilitate that process.

CDS Decision Summary

CDS Decision Date: 2012–11–15

The CDS agreed with the Board's findings and recommendation that the grievances be partially upheld