# 2012-099 Careers, Administrative Action, Recorded Warning

Case Summary

F&R Date: 2012–11–20

The grievor objected to a recorded warning (RW) he received for failing to cease an allowance to which he was no longer entitled and to repay an Emergency Standing Advance within the prescribed time limits, as well as for the mishandling of personal documents contrary to established procedures.

The grievor contended that the RW was unfair and biased and also suggested that a posting which followed the issuance of the RW was unreasonable. As redress, he requested that the RW and all associated documents be removed from his personnel record, that he be considered for employment in a position requiring leadership, experience and skills similar to his previous position and that a formal summary investigation (SI) be ordered into the briefing note which was used as the main point of reference for the RW.

The grievance was referred to the Board without an initial authority (IA) decision because, following the disclosure of a synopsis prepared for the IA, the grievor indicated he wished his grievance to be forwarded to the final authority.

As a preliminary issue, the Board noted that the grievance regulatory scheme does not give a grievor the right to opt out of an IA review, except in circumstances where the IA cannot reply to the grievance within the time allocated by regulations; notwithstanding that the IA supported the request, the Board was of the view that this should not have happened. However, the Board was also of the opinion that returning the file for an IA decision at this point was not in the interests of justice as it would only delay the process further.

In the matter of the deficiencies that led to the RW, the Board opined that these deficiencies would have been more appropriately described as conduct rather than performance deficiencies. After a thorough review of all materials, including consideration of the grievor's military occupation, rank and experience, as well as the position he held at the unit, the Board was satisfied that the grievor demonstrated unacceptable conduct as alleged and that the imposition of a RW for his actions and inactions was justified. The Board was of the view, however, that the mention of a non-sufficient fund (NSF) cheque in the RW should be removed since the grievor provided documentation indicating that the NSF cheque was the bank's error.

Despite having some concerns relating to how the information was obtained, the Board did not find any evidence that the Commanding Officer (CO) relied on the briefing note with regards to any of the actions taken against the grievor and therefore did not support the grievor's request that an SI be conducted. On the issue of the grievor's position change, the Board found no suggestion that the grievor's current position was not appropriate to his rank and occupation. The Board was of the view, however that not sharing the information gathered during interviews conducted by the CO was unfair; if the CO had negative information about the grievor he should have disclosed it and given the grievor a chance to respond. Notwithstanding, the Board noted it was clear that the CO had lost confidence in the grievor and although concerned with the CO's gathering information "after the fact", in the circumstances, the Board was in agreement with the decision to cross-post the grievor. The Board added that the Chief of the Defence Staff (CDS) may want to ensure the CO is made aware that such an approach is unfair and should not be repeated.

The Board recommended to the CDS that the grievance be denied.

The Board recommended that the RW be amended to reflect a conduct deficiency, rather than a performance deficiency.

The Board further recommended that the second deficiency be amended to delete the reference to the NSF cheque.

CDS Decision Summary

CDS Decision Date: 2013–11–27

The FA agreed with the Committee's findings and recommendations, including the recommendation that the grievance be denied.