# 2013-018 Others, Repatriation

Case Summary

F&R Date: 2013–06–07

The grievor was repatriated early from a posting abroad on the basis that he lacked the required language proficiency. The grievor held that he was wrongfully dismissed from the position given he had successfully attained the language proficiency level identified by staff at the Director of Foreign Liaison (DFL) prior to his posting. He also alleged his superior acted improperly in the process. The decision to repatriate was made by the Director Military Careers (D Mil C) based on staff advice and the mutual recommendation of DFL, the grievor's superior and his career manager. The issue before the Board was whether the decision of early repatriation was reasonable and justified in the circumstances.

The Initial Authority in the matter, the Director General Military Careers, found that the grievor did not meet the required language proficiency level to carry out his responsibilities, which in turn impaired the operational effectiveness of the office and made it difficult for his superior to achieve mission success. While the Initial Authority acknowledged that, prior to the grievor being posted, the language requirements for this new position had not been properly identified, he found that the repatriation was policy-compliant and denied the grievance.

The grievor was not provided an opportunity to review all of the evidence that was put before D Mil C in reaching this decision. While this was not in keeping with procedural fairness, the grievance process cured the breach through a de novo review by providing full disclosure and affording the grievor the opportunity to make informed representations.

In its review the Board examined the applicable policy, Canadian Forces Administrative Order 20-6, Posting Policy – Tour Lengths for Members at Fixed-tour Units and Non-fixed-tour Units, which allows for the reduction of a tour length for valid operational reasons. The DFL staff, the grievor's superior and his career manager all indicated that, despite not identifying the proper language proficiency level for the position earlier, it remained that the grievor's language skills did not meet the requirements of the position. The grievor himself admitted that the required proficiency in comprehension for this position was very high, to a level which only a person who is almost equivalent to native speaking would manage to meet the requirements. The Board found that there were valid operational reasons to reduce the grievor's tour given the grievor did not possess the language proficiency that was truly required for the position. The Board acknowledged that this was through no fault of the grievor who had successfully passed training, but that of Canadian Forces authorities who should have been better aware of the language requirements for the position.

Regarding the grievor's contention that his superior acted improperly in recommending his repatriation, allegedly without justification, the Board noted that abuse of authority is dealt with in a separate process under Defence Administrative Order and Directive 5012-0, Harassment prevention and resolution. Still, the Board found that it was well within the superior's authority to recommend the grievor's repatriation, and his actions were consistent with the proper exercise of command and supervision responsibilities.

The Board recommended that the Chief of the Defence Staff deny the grievance, but that he might wish to express regret to the grievor for this unfortunate situation.

CDS Decision Summary

CDS Decision Date: 2013–12–17

The CDS agreed with the Committee's findings and recommendation and denied redress. However, the CDS asked that a briefing note about the incident be removed from the grievor's personal file.