# 2011-112 Careers, Administrative Action, Natural Justice, Procedural Fairness

Case Summary

F&R Date: 2011–12–30

The grievor submitted a grievance following his reassignment to another position based on what appeared to be his lack of certain leadership qualities. He argued the decision to reassign him was unfair and in complete disregard with the Canadian Forces (CF) obligation to afford him procedural fairness. The grievor stated he had never been made aware of any deficiencies in his leadership abilities prior to being informed of his reassignment. The grievor requested that his professional credibility and reputation be reestablished and that the events leading to his reassignment be investigated.

The Board noted that the common law duty of procedural fairness generally requires that a person be informed of the case and given the opportunity to respond before an administrative authority makes a decision affecting that person's interests. The Board also referred to the CF Military Administrative Law Manual (the "Manual") which states that the application of the principles of procedural fairness will vary depending on the type of administrative sanction utilized. The Board noted that, as a general rule, as the potential consequences of an administrative action become more severe, the entitlement to procedural fairness increases.

The Board stressed the importance of distinguishing career management decisions which are routine decisions made in the course of managing the professional development and career progression of every member of the CF from administrative sanction decisions which represent the administrative action that is imposed on a CF member to rectify and remedy individual deficiencies in performance or conduct. In the circumstances of the case at hand, it was the Board's opinion that the reassignment of the grievor could not be considered a career management decision and concluded that the posting was used as an administrative sanction or penalty. The Board concluded the grievor was entitled to procedural fairness in the course of the decision-making process.

The Board requested and reviewed the grievor's personnel evaluation reports (PER) for the six-year period covering his current rank and did not find evidence of any leadership deficiencies similar to those used to justify his reassignment; in addition, a closer look at the grievor's last PER, prepared and written by the same officer who decided to reassign the grievor, depicted the grievor as an officer who came across as an analytical self-assured and competent leader who exhibited mission focus and who was considered as a pragmatic leader, ripe for promotion. The Board could not help but note the disparity between the grievor's leadership evaluation and that portrayed in the memorandum supporting the decision to reassign him, given that both documents represented the opinion and evaluation of the same individual.

In the Board's view, if the grievor's superior was concerned with the grievor's leadership he had the regulatory obligation to address the issue through a variety of administrative procedures as set out in Defence Administrative Order and Directive 5019-4, Remedial Measures. The Board found no indication that such measures were used to assist the grievor in overcoming what the grievor's superior considered to be a possible leadership deficiency. In the Board's opinion, even if it were to consider that the grievor had developed some leadership deficiencies or interpersonal issues, it would not warrant, as a first measure, the administrative sanction that he received; if true, the nature of the deficiency in its context would have warranted, at best, an initial counselling.

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

The Board recommended that the CDS acknowledge the hastiness and unreasonableness of the grievor's reassignment and that he acknowledge that the manner in which the grievor was treated was inappropriate.

The Board also recommended that the grievor be returned, as soon as administratively possible, to an operational focused position, commensurate with his rank and experience.

CDS Decision Summary

CDS Decision Date: 2014–06–12

The CDS agreed with the Committee's findings and recommendation that the grievance be upheld. In addition to the redress recommended by the Committee, the CDS directed the conduct of a supplementary board based on the amended PER.