# 2012-073 Others, Repatriation

Case Summary

F&R Date: 2012–08–30

The grievor who was serving outside Canada was informed by his Commanding Officer (CO) that given the negative work and social environment, as well as the prevailing conflict within the unit, he felt it necessary to repatriate him. The CO also noted that his decision was made in consultation and approval of the head of mission and that allegations made against the grievor by a subordinate were also a contributing factor.

In his grievance, the grievor argued that his repatriation was premature and highly unjustified and stated that he was denied disclosure concerning the allegations and complaints made against him. He later submitted that, overall, the final harassment investigation had found the allegations unfounded. As redress, he requested to be reimbursed for the loss of benefits, legal fees and emotional distress for himself and his family.

The initial authority (IA), the Director General Military Careers, indicated he found no evidence the CO was negligent in his decision-making process, that he interviewed numerous individuals and did not make a spur of the moment decision. In the IA's view, the CO was responsible for the operational effectiveness of the unit and was required to take action given his assessment that the grievor, and his wife, were the primary sources of conflict within the unit. The IA found that the decision to repatriate the grievor was reasonable and did not cause the grievor an injustice.

The Board agreed with the IA that the central question to be addressed was whether the CO, in ordering the grievor's repatriation, acted reasonably and fairly with the facts available to him at that time. The Board also acknowledged that the various subsequent investigations were relevant to some extent since they found no evidence of wrongdoing or harassment on the part of the grievor, but for one minor incident; the Board also noted that the latter finding was overturned as a result of a separate grievance.

The Board was of the view that the common law duty of procedural fairness generally requires that before an administrative authority makes a decision affecting a person's interests, that person should be informed of the case and given the opportunity to respond. On this question, the Board noted that the CO indicated that the decision to repatriate the grievor was primarily based on the fact that the unit was in turmoil and that the situation would not resolve itself. The Board agreed that there is no question it was open to the CO to interview members of the unit to sort out the situation; however, in the Board's opinion, once repatriation became an option, the CO should have advised the grievor what information he was relying on in considering this possibility and given him some meaningful time to respond.

Notwithstanding, in the Board's view, it was the CO's conclusion at the time that the prevailing conflict had spilled over and was negatively impacting the atmosphere and work environment. The Board noted it was also the CO's view that the primary sources of conflict were, at different degrees, the grievor and his wife, and that the grievor had lost the trust and respect of his subordinates. Finally, the Board pointed out that the grievor had been informed at an earlier date that personnel, including himself, could be posted out if things did not change.

While the Board concluded that the decision to repatriate the grievor was, to some degree, procedurally deficient, it found that the CO believed that he was acting in the best interests of the Canadian Forces (CF) and the unit in ordering the grievor's repatriation. As for redress, the Board was of the view that no meaningful remedy could be given at this point. The foreign duty allowances are not payable unless the individual is present in the foreign location; as well, there is no provision in CF or Treasury Board policies to permit reimbursement of legal fees incurred through the grievance process. Lastly, the Board indicated that if the grievor wishes to pursue damages relating to health issues, he would have to make a claim against the Crown through the Director Claims and Civil Litigation as there is no authority within the grievance process to address such claims.

The Board recommended to the Chief of the Defence Staff (CDS) that he deny the grievance.

The Board further recommended that the CDS acknowledge, in hindsight, that the situation should have been handled differently and the grievor given some time to respond to the allegations against him before the repatriation action was taken.

CDS Decision Summary

CDS Decision Date: 2013–04–26

The FA agreed with the Board's recommendation that the grievance be denied. The FA found that the CO's decision to repatriate the grievor was reasonable. Contrary to the Board, the FA found that there was no breach of procedural fairness throughout the CO's unit investigation including his decision to repatriate the grievor.

However, the FA agreed that the chain of command was procedurally deficient in carrying out its duties to disclose the content of the complaint, because the allegations details against the grievor were disclosed a full year after his repatriation.