# 2012-049 Releases, Administrative Review, Procedural Fairness, Release - Conduct/Performance, Reserve Force
Case Summary
F&R Date: 2012–07–31
The grievor, a Reservist, was compulsorily released under item 5 (f) – (Unsuitable for further service) of the table to Queen’s Regulations and Orders for the Canadian Forces, article 15.01, for having been untruthful during an investigation interview, breaching the trust of the chain of command (CoC). The grievor argued that the administrative review (AR) process leading to the release decision was unfair and that the decision to release rather than employ the available remedial measures was excessive and unjustified. The grievor sought reinstatement in the Canadian Forces (CF).
The issue before the Board was whether the grievor ought to have been released from the CF.
The release decision maker in this case, the Director Military Careers Administration (DMCA), did not accept the AR recommendation to retain and place the grievor on counselling and probation (C&P) for a period of six months. In his decision, the DMCA indicated that the CoC had lost trust in the grievor’s ability to continue to serve and that the grievor had committed one of the worst ethical faults possible: a breach of trust based on untruthful character, having “lied deliberately to MP investigators …”.
The initial authority (IA), the Director General Military Careers, agreed with the grievor that the AR process was unfair as the grievor was not aware that release was being contemplated by the decision maker. However, the IA found that the grievance process corrected this flaw, providing the grievor with procedural fairness. The IA supported the release decision, stating that it was the decision that best reflected the grievor’s conduct and that there was no requirement to offer counseling.
DMCA staff members, the subject matter experts on compulsory release, advised the Board that CF members are rarely released without an opportunity to overcome their deficiencies and that when a member is released immediately, the misconduct is typically severe such as serious criminal code violations or acts that reflect discredit on the CF.
The Board agreed with the IA that the AR process in this case was procedurally unfair but did not agree that the grievance process could cure the breach given that neither the IA nor the Chief of the Defence Staff (CDS) have the authority to reinstate the grievor should they conclude that the release decision was unwarranted.
Referring to a Supreme Court of Canada decision in Dunsmuir, the Board found that the breach of procedural fairness rendered the grievor’s release from the Reserve Force (Res F) void ab initio, such that the grievor’s employment with the Res F never ceased. The Board then pointed out that should the CDS agree that the grievor’s release was void, the CF would be free to make a new release determination, effective from the date of the new decision. Prior to such a new decision, a de novo consideration of the matter was required.
The Board then conducted a de novo review, concluding that the AR and the decision of the DMCA treated the grievor as if guilty of a crime when, in fact, there was no reliable evidence to conclude, even on a balance of probability, that a crime had been committed, much less that it was committed by the grievor. The Board found that the grievor had a good career record of over ten years of unblemished service, including three deployments, and that the grievor’s retention was strongly supported by the unit Commanding Officer. Finally, in the circumstances, the Board found that the release decision was excessive and that the grievor should have been retained in the CF and placed on C&P for a period of six months.
The Board recommended that the CDS uphold the grievance by:
• declaring the grievor’s release to be void ab initio
• setting the original release decision aside
• directing the removal from the grievor’s personnel file of all documents pertaining to the release
• directing the reintegration of the grievor into a Res F unit, with the grievor having some reasonable choice between available units; and
• ordering that the grievor be given C&P for a period of six months following a procedurally fair de novo review of the grievor’s circumstances.
CDS Decision Summary
CDS Decision Date: 2013–11–20
The CDS did not agree with the Committee's recommendation that the grievance be upheld. Based on the Federal Court of Appeal decision in McBride, the CDS was of the view that the grievance process was sufficient to cure the errors in procedural fairness. Therefore, the CDS found that the serious procedural breaches in this case were cured by setting aside both the DMCA and IA decisions and by conducting a de novo (from the beginning) review of the grievance. After his review, the CDS had a different appreciation of the evidence than the Committee. The CDS found that there was no record that the grievor accepted responsibility; the CDS also found that the greivor showed a continued lack of forthrightness. The CDS determined that the grievor's compulsory release was reasonable.
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