# 2012-078 Careers, Recorded Warning

Case Summary

F&R Date: 2012–11–29

The grievor, a Regular Force driver, was issued a Recorded Warning (RW) for conduct and performance deficiencies primarily related to his actions on the day he attended a language test. The RW addressed the fact that the grievor had not reported to his normal work place prior to attending his test. The grievor argued that he had been directed by his Very Important Person (VIP) (his permanent assignment) to report directly for his test since a replacement driver had been arranged. The grievor sought to have the RW removed from his record.

The issue before the Board was whether the RW imposed on the grievor was justified.

The Initial Authority (IA), the Commandant (Cmdt) Canadian Forces Support Unit Ottawa, denied the grievance, indicating that the grievor had failed to challenge the merits of the RW and, therefore, it was appropriate to leave it in his personnel file. However, the grievor responded to the IA, clarifying that he was in fact challenging the merit of the RW. The IA then issued a new decision, again denying the grievance and explaining that the grievor was still responsible to his chain of command even though he had been granted permission to go directly to his test by his VIP. The IA also pointed out to the grievor that informing one's chain of command is not the same as obtaining permission and that the grievor was not authorized to rearrange the drivers' assignments without approval.

The Board first took issue with the IA's statement that the first grievance failed to challenge the merit of the RW, noting that the grievor's initial submission had addressed whether the RW was appropriate. The Board also observed that the second decision was signed by a delegate acting as the Cmdt, and was signed using the Cmdt's signature block. Assuming the delegate had the proper authority to render a decision on the grievance; it should have been signed using the delegate's signature block.

In considering whether the RW was justified, the Board first noted that the RW described six conduct and performance deficiencies. This was contrary to the provisions of the Defence Administrative Order and Directive 5019-4, which directs that each deficiency be dealt with separately.

Next, the Board considered whether the grievor had received any prior counseling for the same type of deficiency as was indicated by the grievor's Sergeant (Sgt) when the RW was issued. The Board found no evidence that the grievor had been counseled on any other occasion for acting on directions from his VIP that conflicted with directions from his supervisor. Further, although the chain of command indicated that the grievor had previously been issued an Initial Counselling (IC) for lack of judgment, the Board determined that the circumstances of that IC were quite different from the situation giving rise to this grievance. Accordingly, the Board found that the previous IC was not issued for a substantially related reason and, therefore, it was inappropriate to rely on the IC to justify issuing a RW to the grievor.

Finally, the Board considered the primary event leading to the issuance of the RW - that the grievor had proceeded directly to his test as instructed by his VIP rather than first reporting to his normal place of duty as his Sgt asserts he should have done. The RW alleged that the actions taken by the grievor in relation to his work schedule on the day of his language test were inappropriate. The grievor argued that the steps he took that day were reasonable, given the circumstances. The Board examined, in detail, the circumstances surrounding the test and the instructions/directions to the grievor. In so doing, the Board sought additional clarification from the VIP, from the grievor's direct supervisor [a Master Corporal (MCpl)], and from the grievor's Sgt.

The VIP confirmed that he had instructed the grievor to go directly to his test that morning and that the grievor had returned to his VIP duties after the test and had worked until after 1700 hrs.

The MCpl confirmed that it was standard practice for the drivers to respond to direction from their VIP so long as their chain of command was informed and that it was also normal for drivers to go directly to their morning appointments provided a replacement had been identified. Finally, the MCpl confirmed that it had been her expectation at the time that the grievor would proceed directly to the site of his test on that day. She added that she considered the grievor to be a dependable, good driver who frequently sought clarification in order to ensure that he understood directions.

The grievor's Sgt confirmed that he had instructed the grievor to report for his test not later than 1000 hours and that he had assigned a replacement driver for the day of the test. The Board concluded that both the VIP and the grievor's chain of command [his direct supervising MCpl] were aware that the grievor would proceed directly to his test and that a replacement driver had been assigned. The Board also found that the RW was misleading in its depiction of the grievor's actions on that day.

The Board found that the issues surrounding the grievor's schedule were complicated by the number of supervisors and authorities involved, and by miscommunication. The Board found that the direction provided by the Sgt was unclear and that, given the other direction he had received, it was reasonable for the grievor to believe he could proceed directly to his test. Accordingly, the Board found that the RW was not justified in the circumstances.

The Board recommended that the Chief of the Defence Staff uphold the grievance by quashing the RW and directing its removal from his personnel file, along with any references to the RW.

CDS Decision Summary

CDS Decision Date: 2013–05–21

The FA agreed with the Board's findings and recommendation that the grievance be upheld.