# 2012-147 Careers, Remedial Measures, Reserve Force, Termination Class B Reserve Service

Case Summary

F&R Date: 2013–01–31

The grievor was issued an initial counseling for failure to follow direction. Five months later, the initial counseling was upgraded to a recorded warning and, less than one month later, the grievor was given a 30-day notice of the early termination of her Class B employment based on three security infractions in addition to the remedial measures. The Initial Authority concluded that the remedial measures and the early termination of employment were warranted and denied the grievance.

The Board reviewed the initial counseling and determined that the Initial Authority had unfairly placed the burden on the grievor to disprove the examples used to justify the initial counseling. The Board noted that witnesses and potential witnesses for the grievor were not questioned and that the chain of command was not required to provide evidence to support their examples. Therefore, the Board found that the initial counseling should be rescinded.

In examining the recorded warning, the Board found that the incidents noted therein warranted a remedial measure. However, given that the prior initial counseling was not merited, the Board found that the recorded warning should be rescinded and a new initial counseling should be issued in its place.

The early employment termination was based on the remedial measures and three security infractions, one of which was subsequently removed by the Initial Authority. Of the two remaining, the Board concluded that only one should have been attributed to the grievor. The Board found that the chain of command held the grievor responsible for repeated security failings without having properly validated their conclusions. Given that the chain of command's reasons for the early termination did not stand up under scrutiny, the Board found that the termination decision was premature.

At the time that the notice was given, the grievor was subject to a monitoring period for a recorded warning that had been issued less than 30 days prior. Canadian Forces Military Personnel Instruction 20/04 states that the CF members shall be given a reasonable time to overcome shortcomings. Furthermore, Defence Administrative Order and Directive 5019-4 provides that the minimum monitoring period is three months. The grievor should have received the benefit of three months of counseling in order to assist her to correct and overcome her deficiency. In the Board's opinion, the chain of command failed to provide the expected leadership. Therefore the Board found that the grievor's early termination of Class B employment was not reasonable nor in accordance with policy requirements.

The Board recommended that the Chief of Defence Staff grant partial redress by rescinding the initial counseling and the recorded warning and issuing a new initial counseling using the examples found in the recorded warning. The Board also recommended amending the grievor's records appropriately and facilitating a Class B employment opportunity for the grievor in a suitable position.

CDS Decision Summary

CDS Decision Date: 2014–11–18

The Chief of the Defence Staff (CDS) agreed with the Committee that the grievor was aggrieved and its recommendation that partial redress be granted. The CDS agreed with the Committee's finding that the grievor's Initial Counselling (IC) be rescinded, because he could not certify if the grievor was briefed in accordance with Defence Administrative Orders and Directives 5019-4. However, except for 2 out of 3 portions of the Recorded Warning (RW) to be removed, the CDS disagreed with the Committe's recommendation to revert the grievor's RW to an IC because of conduct deficiencies on several occasions. Finally, the CDS did not endorse the Committee's recommendation that a Class B Reserve employment opportunity for the grievor be facilitated: he determined that the termination of grievor's Class B Reserve employment was done in accordance with the policy.