# 2012-072 Harassment, Progress Review Board (PRB)

Case Summary

F&R Date: 2012–11–18

The grievor was attending his intermediate trade course (Qualification Level (QL) 5). Just prior to his final practical test, he was informed that a harassment complaint had been lodged against him by a former student who had attended the basic trade course (QL 3) with the grievor earlier that year. The grievor subsequently failed his final practical test and a Progress Review Board (PRB) determined that he did not meet course failure criteria. The grievor then underwent remedial training, resulting in his passing the retest of his final practical test. Simultaneously, a Harassment Investigation (HI) was conducted. The HI concluded in five days, determining that harassment was founded in five out of the six allegations. The Commandant (Cmdt) of the School, acting as the Responsible Officer (RO), accepted the findings of the HI and directed that another PRB be convened. The RO's letter of closure to the harassment complaint was distributed to the grievor's Commanding Officer (CO) and suggested that a further investigation be conducted to determine if the grievor was involved in criminal activity. The letter also suggested that the grievor should be placed on Counselling and Probation.

The second PRB, conducted following the conclusion of the grievor's QL 5 course, determined that the grievor now met the course failure criteria because of his conduct, the grievor was not entitled to the award of his QL 5, the grievor should be returned to his unit, and that the grievor was not suitable for that trade. Upon return to his unit, the CO gave the grievor a recorded warning for his conduct and initiated a compulsory occupational transfer.

The issue to be determined by the Board was whether the grievor was entitled to be awarded his QL 5 intermediate trade qualification.

The grievor's CO did not support the grievance. The Initial Authority (IA), in this case the Commander of a Command, felt that the Cmdt was authorized to make decisions regarding the grievor's removal from training and that it was also within the scope of his duties to supplement those decisions with additional observations or recommendations on the grievor's suitability for other training and employment in the Canadian Forces. He agreed with the Cmdt's decision to remove the grievor from training and not award him his qualification. The IA believed that the Cmdt had full authority to convene and approve progress reviews in situations where a student fails to meet course requirements or demonstrates unsatisfactory progress.

A Subject Matter Expert (SME) in harassment policy had provided an opinion to the grievor regarding the HI conducted by the School. This opinion was obtained by the grievor for a separate but related grievance. In her analysis, the SME raised several concerns questioning the validity of the HI.

During its examination of this file, the Board looked at the Defence Administrative Order and Directive (DAOD) 5031-9 on Course Reporting and Certificates, DAOD 5012-0 on Harassment Prevention and Resolution, associated Orders, and the course qualification standard. The Board also reviewed the grievor's training file which included the Unsatisfactory Progress Report for the failed practical test, both PRBs and the HI, noting that, prior to the failed practical test at the end of the course, the grievor had been on track to be the top student.

The Board first set about determining whether the grievor had completed the requirements of the course. The Board noted that the grievor completed the course on 8 July 2010, achieving an overall average of 87.5% on the course and that, nowhere in the course report did it indicate that the grievor had not completed all requirements of the course. The Cmdt confirmed that the grievor had successfully completed all the academic and practical requirements of the course but he found that this was irrelevant since the grievor's presence on the course was adversely affecting the training, safety and/or morale of the other students. On the course report, the training staff described the grievor's training performance in a complimentary fashion. However, the narrative then indicated that a harassment complaint had been filed against the grievor and that the subsequent HI findings had caused a PRB to conclude that the grievor's actions “were detrimental to the learning environment and negatively impacted the staff and students' morale, and rights to a safe learning environment.”

The Cmdt stated that the grievor was removed from training for his inappropriate behaviour and his unprofessional conduct. However, it was the harassment complaint and the HI findings that convinced the Cmdt that the grievor had behaved inappropriately while on course. The Board noted that, aside from the HI results, there were no indications of inappropriate behavior by the grievor during the QL 5 course.

According to DAOD 5031-9, a “pass” is awarded if the member successfully completes course requirements. The grievor successfully completed all requirements. The Board took the view that the purpose of initiating a PRB is to consider the progress of the student “while on course”. The Cmdt convened the second PRB after the grievor had successfully completed the course but he treated the grievor as if he was still on course. The Board concluded that the qualification should have been granted to the grievor. The Board also cited another case Board file # 2007-112 where the grievor had successfully completed all requirements of the course but then had been arrested for impaired driving on the final night of the course. In that case the Board found that the grievor had completed all requirements and should have been awarded the qualification and the Final Authority agreed.

The Board also reviewed the HI and the second PRB. The Board agreed with the SME and found that the HI was rushed, poorly planned and analysed and that it should be set aside.

The Board found that the second PRB was unnecessary, given that the course had been completed, and the qualification earned, before the PRB was even convened. The Board found that the PRB based its findings largely on the discredited findings of the HI and that it was not conducted in full accordance with the associated orders. Accordingly, the Board recommended that the second PRB report and all related documents be expunged from the grievor's file.

The Board also concluded that the administrative measures taken against the grievor as a result of the second PRB and the HI findings were unnecessary and should also be removed from the grievor's file.

The Board recommended that the Chief of the Defence Staff grant redress by directing that:

• The grievor receive his QL 5 and that his course report and personnel file be amended accordingly;
• The HI be set aside and all related documents be purged from all records
• The RW be removed from the grievor's personnel file
• The grievor be posted to an appropriate unit for employment as a QL 5 qualifed member in his occupation

following any necessary operational training to be provided on a priority basis in order to bring him to the occupational functional point.

CDS Decision Summary

CDS Decision Date: 2013–02–14

The CDS agreed with the Board's recommendations and granted the grievance.