# 2012-089 Releases, Release - Compulsory, Release - Conduct/Performance

Case Summary

F&R Date: 2012–11–13

The grievor failed to complete a module of his basic military occupation course due to medical issues and while awaiting a later course was awarded a recorded warning (RW) for conduct deficiencies. The grievor subsequently failed to complete that same module a second time and was released from the Canadian Forces (CF).

The grievor argued he only failed his career course once since the first time was due to health reasons and he should have been offered an occupation transfer (OT). He also alleged that he should not have been loaded on the second course because he was still undergoing treatment for his health-related issues. He pointed out the personnel development reviews (PDRs) he received "did not follow proper process"; as well, he contended that since he successfully completed the monitoring period associated with the RW, he should not suffer further career consequences. Finally, the grievor alleged malicious intent by his chain of command (CoC) for not registering his grievance in a timely manner and stated that he was discouraged from submitting a grievance by his assisting officer.

As redress, he requested that his release be cancelled, that he be offered an OT with retroactive pay and benefits, that the RW be removed from his files and that his Commandant and other officers be punished by disciplinary action. The grievor also requested compensation for mental frustration and for pain and suffering.

The initial authority (IA) identified to deal with the grievor's allegations concerning the handling of his grievance did not render an IA decision, but dealt with the matter outside the grievance process.

The Director General Military Careers, the IA for the remaining issues rejected the submissions concerning the RW and the PDRs on the basis that they were submitted outside the prescribed time limit. In the matter of the grievor's release, the IA agreed that it was the appropriate decision in the circumstances given the serious and extensive weaknesses in the grievor's conduct and performance. While the IA agreed that the grievor should not have been loaded on the course the second time because of his medical issues, he noted that the module in question did not require any of the physical activities the grievor was prohibited from doing. The IA concluded that the grievor's condition had very little, if any, effect on his ability to attend or succeed on the course.

It was the Board's opinion that it was open to the grievor to challenge the IA decision concerning the RW and the PDRs and to provide reasons or evidence as to why these two issues should be accepted and reviewed in the interests of justice; however, the grievor did not do so and consequently, the Board found that the IA decision was reasonable and should stand. Notwithstanding this finding, as the RW and the PDRs were instrumental and relied upon in deciding to release the grievor, the Board was of the view that the probing value of both documents must be assessed and weighed. The Board noted that the mere existence of those documents did not mean they should be given absolute deference; however, the Board also pointed out that non-compliance with an established procedure did not necessarily invalidate the RW and the PDRs.

The Board noted that other than stating that these documents were not compliant with the respective policies, the grievor did not contest the content of the RW and the PDRs, nor did he provide evidence that would cast doubt on the validity of their content. In the absence of such evidence, the Board considered both documents at face value. On the issue of the RW, the Board noted that two obligations were not complied with by the initiating authority pursuant to Defence Administrative Order and Directive (DAOD) 5019-4 - Remedial Measures, which requires that at the end of a monitoring period, when a CF member has overcome a deficiency, the member shall be so informed in writing and a written summary by the initiating authority shall be placed on the CF member's personnel record and distributed in accordance with the DAOD.

On the issue of the grievor's attendance on the course the second time, the Board was of the opinion that the grievor's medical employment limitations could not interfere with his ability to pass the performance objective that he failed because the objective was theoretical in nature.

In the matter of the grievor's release, after a thorough review of the materials on file, as well as the publication Duty With Honour - The Profession of Arms in Canada, the Board was of the opinion that, in addition to the fact that the grievor was unable to be successful on his basic military occupation course, considering the behavioural nature of the identified deficiencies, the grievor's conduct and personal attributes would have been similar, regardless of military occupation and rank, whether employed as an officer or a non-commissioned officer. The Board found that the decision to release the grievor was the most reasonable course of action in the circumstances.

Finally, as mentioned before, the grievor never did receive an answer from an IA regarding his allegations concerning the handling of his grievance by his CoC. In correspondence provided to the Board, although it was explained that lessons were learned from this case and that the CoC in question has now put in place mechanisms to administer grievances appropriately, there was no indication that the grievor was ever informed of those findings. While the Board appreciated that the CoC in question may have improved its internal grievance process, it remains that the grievor made serious allegations which, if proven, could have fallen within the definition of harassment; however, since the grievor has been released from the CF, a release the Board has found warranted, and given that the CoC has reviewed its process, the Board did not believe that an investigation into the grievor's allegations was warranted.

The Board recommended to the Chief of the Defence Staff (CDS) that the grievance be denied.

The Board recommended to the CDS that he acknowledge that the grievor successfully completed his RW monitoring period.

The Board recommended to the CDS that he direct that a written summary on the RW be prepared and placed on the grievor's personnel record in accordance with DAOD 5019-4.

CDS Decision Summary

CDS Decision Date: 2014–01–16

The CDS partially agreed with the Committee's findings and recommendations. He agreed that the grievor's release was reasonable but concluded that a 5d) item of release was more appropriate in the circumstances. The CDS also found that the grievor's RW needed to be annotated to show that the grievor had successfully completed a RW monitoring period and that a memorandum needed to be prepared in accordance with the DAOD. Finally, as a result of changing the grievor's release item from 5f) to 5d), the CDS awarded the grievor the second installment of a his Recruitment Allowance.