# 2012-148 Careers, Administrative Action, Counselling and Probation (C&P), Initial Counselling (IC), Recorded Warning,...

Case Summary

F&R Date: 2013–03–28

The grievor was placed on the Basic Training List while waiting to qualify for a new military occupation. A course report, along with a letter referring to major problems with the grievor's conduct during his stay at the teaching establishment in question, were sent to his Commanding Officer (CO) who, basing his actions on the contents of the course report and letter, placed the grievor on initial counseling. The grievor alleged that the persons who helped draft those two documents were biased against him owing to a personal conflict. He also claimed that the initial counselling was imposed on him belatedly and that he did not receive disclosure of the supporting documents. The grievor was later employed on a unit as a candidate in training. After three months, the grievor's supervisor drafted an evaluation letter recommending that the grievor's training be terminated and an administrative review initiated. The supervisor issued the grievor a recorded warning, admonishing him for failing to respect the chain of command, sending inappropriate messages and failing to display the qualities expected of an officer. The grievor argued that the contents of the letter were inappropriate and that the supervisor lacked objectivity in judging him. He claimed as well that the recorded warning was not justified and had no basis in fact.

The grievance was divided into three separate grievances for review by the appropriate initial authorities. The file before the Board comprised two decisions by different initial authorities with the grievor having refused the third initial authority a further extension for the review of the third grievance. To sum up, the grievor alleged that the principles of procedural fairness had been violated during the preparation and issuance of the corrective measures, the course report and the two letters. He claimed that he was a victim of a coordinated campaign aimed at tarnishing his reputation, which ultimately compromised the impartiality of the people concerned.

The Board noted that the initial authority for the course report and the cover letter referred to some personal problems faced by the grievor at the time of the alleged incidents. The Board concluded that pursuant to Defence Administrative Order and Directive 5031-9, Course Reporting and Certificates, both the course report and the accompanying letter should have mentioned these problems to ensure that the grievor's CO was aware of all the relevant facts before deciding what action to be taken. The Board concluded that the report and letter should remain on the grievor's file but recommended that they be annotated. The Board stated, however, that the alleged breaches of conduct were supported by the evidence and that the grievor's personal problems in no way justified his conduct.

The initial authority concerning the initial counseling complaint noted that according to the evidence the grievor read the documents supporting the measure when it was imposed and that this was sufficient to respect procedural fairness and that the measure was justified given the alleged misconduct. The Board began by noting that the grievor's CO had been slow to take action after receiving the letter and course report, several months having elapsed before the grievor was called to a meeting. Although it noted that certain rules of procedural fairness had not been respected, the Board concluded that the grievance process had offset this shortcoming by providing the grievor with all relevant information and enabling him to submit his comments to the decision-making authorities, who had the authority to recind the disputed corrective measure if necessary. The Board concluded that the grievor's conduct warranted the imposition of an initial counseling and that it should be maintained since, according to the evidence, the grievor had violated basic ethical rules.

The grievor refused to grant an extension to the initial authority appointed to deal with the evaluation letter and the recorded warning imposed by his supervisor while he was employed as a candidate in training. The Board concluded that the supervisor's actions were reasonable since the grievor's observed breaches of conduct and behaviour made it imperative that he act. The Board did point out, however, that the supervisor lacked the authority under the provisions of DAOD 5019-4, Corrective Measures, to issue the grievor a recorded warning. The Board concluded that the recorded warning was invalid, but that a second review of the circumstances was needed to determine whether the grievor's behaviour justified the imposition of a corrective measure and, if so, which one?

During this review, the Board noted that the grievor's alleged breaches of conduct and behaviour had continued despite the interventions and actions taken by his chain of command to help him resolve his problems. The Board pointed out that the grievor had violated a number of basic rules relating to military ethics and had continued to justify his offenses without making any effort to accept responsibility or resolve the problem. The Board also determined that the grievor's comments were improper and went beyond the reasonable criticisms permitted under article 19.14 of the Queen's Regulations and Orders regarding what was necessary for the proper presentation of his grievance. The Board concluded that the grievor had developed an unacceptable pattern of behaviour that he followed on almost a daily basis. In light of the gravity and recurrent nature of the grievor's alleged conduct and given his military experience and rank, the Board concluded that the grievor needed to be placed on counselling and probation to ensure that he corrected his deficiencies without delay.

The Board recommended that the Chief of the Defence Staff deny the grievance and order that the grievor be placed on counselling and probation.

CDS Decision Summary

CDS Decision Date: 2013–10–11

The FA concurs with the Board's conclusions and its recommendation to reject the grievance. The FA disagrees with two of the seven recommendations submitted by the Board. Given that the monitoring period for the initial counselling had yet to expire when a second measure was imposed, the FA determined that it would be premature to impose a measure as severe as counselling and probation, as recommended by the Committee, while the efforts aimed at helping the grievor correct his shortcomings were just beginning. The FA felt that a recorded warning was the most appropriate measure. Finally, the FA agreed with the Committee that the grievor's case as a whole required major coordination among the different parties; however, it pointed out that this concerted intervention should be managed by the chain of command and not the Director, Military Careers Administration, even though the latter will be required to play an important role.