# 2012-062 - Release - Compulsory, Release - Conduct/Performance, Reserve Force

Case Summary

F&R Date: 2012–09–27

The grievor joined the Naval Reserve (Nav Res) in early 2004 and transferred to the Intelligence Officer - Sea (Int O – Sea) occupation later in 2004. He completed his training and was promoted to Sub-Lieutenant (SLt) in 2007.

In 2008 the grievor was repatriated from Afghanistan because he lacked the training and experience required to successfully fulfill the task of a Liaison Officer in an army-centric environment. Nevertheless, in late 2009, the grievor was selected to fill an Int O Analyst position on another army-centric deployment. In February 2010, the grievor was returned to his unit (RTU) from pre-deployment training for reasons described by his superior as a lack of basic soldier and Int O analysis abilities as well as a lack of accountability for his actions. An administrative review (AR) was conducted, resulting in the Commander Nav Res ordering the grievor’s release under item 5(f) of the Table to article 15.01 of Queen’s Regulations and Orders for the Canadian Forces.

The grievor acknowledged his difficulties on the exercise but argued that the decision to release him was based on a flawed AR that concentrated solely on, and unduly heavily weighted, his one negative experience on the exercise to the exclusion of his previous performance which included three commendations within that same fiscal year. As redress, the grievor requested that the release decision be reconsidered and that he be reinstated in the Nav Res with no loss of time towards promotion, career advancement, trade or pay.

The initial authority (IA), the Chief of the Maritime Staff, denied the grievance, finding that, on a balance of probabilities, the grievor had demonstrated professional deficiencies in his competency as an Int O and in basic military knowledge, and had also demonstrated a willingness to mislead the chain of command in order to cover up his mistakes. The IA concluded that an item 5(f) release was appropriate because the issues described were within the grievor’s control.

The Board found that the AR process lacked procedural fairness and was fatally flawed because the reasons justifying the release were totally inadequate. The Board further found that the breach of procedural fairness could not be cured by the grievance process because the grievor had already been released. Accordingly, the Board found that the grievor’s release should therefore be rendered void ab initio such that the grievor’s employment relationship with the Canadian Forces never ceased.

The Board then conducted a de-novo review and found no evidence to suggest that the grievor possessed the necessary training and experience to fill the type of high tempo army-centric employment into which he had been placed. On the contrary, the sole indication of his suitability was the previous RTU from Afghanistan in 2008 which strongly recommended against such employment.

The Board also found that the process used to select the grievor for the Int O Analyst position was severely deficient and placed the grievor in a situation where he was destined to fail.

In summary, while the grievor’s performance was lacking in both of the army-centric deployment taskings to which he was assigned, the Board found that he ought not to have been placed in either of those taskings in the first place. Aside from those two taskings, the Board found that the grievor’s overall performance throughout his short career has been assessed as what could describe as fully acceptable.

The Board recommended that the grievance be upheld, that the release decision be set aside, and that the grievor be considered to have never been released.

CDS Decision Summary

CDS Decision Date: 2013–11–20

The CDS agreed with the Committee's recommendation that the grievance be upheld but did not agree with all the findings and recommendations. The CDS noted that in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) the Supreme Court of Canada held the adequacy of reasons was not a stand-alone basis for quashing a decision for breach of procedural fairness and, therefore disagreed with the Committee that the release decision should be set aside. Further, the CDS reiterated his position that any breach of procedural fairness was cured by the grievance process at the Initial Authority level and again at the Committee's and the Final Authority's de novo (from the beginning) review. The CDS agreed with the Committee that the grievor's training and experience were not commensurate with the requirements of the deployment position and that it was unfair of his units to believe that he could meet the expectations of the position. Nonetheless, the CDS did note that the grievor's conduct was such that his chain of command had lost confidence but that a Remedial Measure was the most appropriate decision.

The CDS granted redress by directing that the grievor's enrolment into the Primary Reserve be facilitated, should he so wish, but that he be immediately placed on Counselling and Probation for a conduct deficiency.