# 2012-100 Careers, Administrative Action, Recorded Warning

Case Summary

F&R Date: 2012–11–26

The grievor was issued a recorded warning (RW) for his conduct during a military occupation-related training. The RW stated that the grievor failed to exercise leadership, conduct and professionalism expected of a junior leader of his rank and experience.

The grievor was of the view that the RW was the result of unfair treatment on the part of his chain of command (CoC). The grievor admitted to talking loudly during a particular class, but stated he complied immediately after being told to keep quiet. He argued that a RW was excessive and unjustified in the circumstances. He requested that the RW and a note to file dated two years previously, be withdrawn from his personnel file. As well, the grievor was of the opinion that it was not appropriate for his Commanding Officer (CO) to act as the initial authority (IA) since the latter had been involved in discussions about the matter prior to the issuance of the RW.

In response to the grievor's assertion that he should not act as the IA, the CO indicated that, although he had fully supported a recommendation that the grievor be issued the remedial measure, he did not personally direct the RW and therefore was in a very good position, as the grievor's CO, to act as the IA. As for the RW itself, the CO explained that the grievor was part of the first level of leadership and, as such, was expected to set a positive example. Given the training assessment which indicated the grievor need supervision, was inattentive and disruptive, the CO concluded the RW was justified and denied the grievance.

The Board agreed with the grievor that the CO should not have acted as the IA on the basis that the CO's subordinate had obviously discussed the matter with him and the CO agreed that a RW should be issued; in the circumstances, the Board was of the view that the CO could not be said to be an objective adjudicator. However, in the Board's opinion, since the grievance was now at the final authority level, returning it for a decision by an appropriate IA at this point would only delay the process further.

The Board reviewed Defence Administrative Order and Directive 5019-4 - Remedial Measures, which provides the policy with regard to the issuance of a RW, the report prepared by the instructor who conducted the training, as well as the wording of the RW itself. In the Board's opinion, on a fair reading of the RW, it overstated the problem reported by the instructor. The RW contained severe descriptives such as "consistently disruptive behaviour", "disturbing the learning environment", "a blatant leadership failing", which were not found in the training assessment report, the document relied upon to impose the RW.

The Board noted that several months after the issuance of the RW, the CoC sought and received a more detailed account of the grievor's alleged transgressions from the instructor. In the Board's view, the CoC either had the justification for the RW at the time of issuance or they did not; to seek to bolster the case against the grievor after the fact gives rise to the inference they did not have sufficient evidence in the first place. The Board also noted that the summary of the requested performance assessment letter seemed specifically designed to buttress the second paragraph of the RW as the phrasing is largely identical. The Board gave little weight to the letter in question and opined that it ought not to have been requested.

Lastly, concerning the grievor's request that a note to file be removed from his personnel file, the Board concluded the grievor was clearly out of time to grieve this particular matter.

The Board found that the RW was excessive in the circumstances.

The Board recommended that the Chief of the Defence Staff (CDS) partially uphold the grievance.

The Board recommended that the CDS order that the RW form and any correspondence related thereto, including the 27 September 2011 letter from the instructor, be expunged from the grievor's personnel file.

CDS Decision Summary

CDS Decision Date: 2013–04–24

The FA agreed with the Board's recommendation that the grievance be partially upheld. Consequently, the FA directed the grievor's CO to remove the RW and all references to it from his personnel file. The FA also agreed with the Board that the information collected after the RW was issued cannot be used by the Chain of Command to justify its decision.