# 2013-086 - Administrative Review, Harassment, Promotion, Release, Remedial Measures
Administrative Review, Harassment, Promotion, Release, Remedial Measures
F&R Date: 2013–10–31
The grievor filed a first grievance relating to the deferment of his promotion, his failure on a re-course (Phase IV – Land Environment), numerous administrative measures taken against him, five personnel evaluation reports and the harassment he allegedly suffered. Following an administrative review resulting in his release from the Regular Force, the grievor filed a second grievance contesting this decision.
The initial authority partially upheld the grievance. He first noted that an administrative error in the processing of the promotion had been acknowledged and remedied to the grievor's satisfaction. Regarding the personnel evaluation reports, the initial authority stressed that despite the identified errors the individual personnel evaluation reports remained valid; however, he ordered that corrections be made.
The initial authority concluded that the harassment investigation had been carried out in accordance with the Harassment Prevention and Resolution Guidelines and that only one allegation met the definition of harassment.
Regarding the administrative measures taken against the grievor, the initial authority concluded that all save one had failed to comply with Canadian Forces Administrative Order 26-17 (Recorded Warning and Counselling and Probation) in effect at the time, quashing the non-compliant administrative measures.
On the issue of the grievor's failure on the re-course, the initial authority concluded that all the foremost causes of the failure were related to individual factors and to the grievor's failure to meet the course standards a second time.
First grievance. The Committee concluded that the matter of promotion to the rank of captain was closed and indicated his agreement with the measures ordered by the initial authority concerning the grievor's personnel evaluation reports.
Harassment. The Committee concluded that two and not one of the grievor's allegations against the former unit commanding officer were founded. The Committee also concluded that the actions and conduct of the former commanding officer surrounding a third incident constituted harassment against the grievor. The Committee was of the opinion that the former unit commanding officer's three harassment incidents were serious enough to warrant issuance of a recorded warning.
Regarding the corrective measures, the Committee concluded, given the decision of the initial authority, that the administrative review for violation of counselling and probation that led to the grievor's release was premature under the circumstances.
Failure in training. The Committee was of the opinion that it would be inappropriate to credit the grievor with his Phase IV because he had not passed the course owing to his failure on certain performance objectives. However, the Committee concluded that under the circumstances sending the grievor on his Phase IV re-course was premature.
Second grievance. The Committee concluded that since it had been premature to hold the administrative review, the grievor's second grievance automatically became obsolete. The Committee did note, however, that the commander who had taken the decision to release the grievor lacked the requisite authority to approve the release.
The Committee recommended that the CDS grant the grievor partial redress.
The Committee recommended that the CDS order the issuance of a recorded warning to the grievor's former commanding officer.
The Committee recommended that the CDS order the grievor's transfer from the Reserve Force to the Regular Force and that the grievor be given the opportunity to complete his Phase IV training.
The Committee recommended that the CDS forward the grievor's file to the Director Human Rights and Diversity to allow for a negotiated settlement to the harassment issue.
FA Decision Summary
The CDS partially agreed with the Committee's findings and recommendations. The CDS first determined that he could not give any weight to the grievor's allegations, as these were not supported by documentary evidence of what the witnesses named by the grievor had reported. The CDS held that responsibility for the grievor's failure on his second attempt at Phase IV was shared: the chain of command had the obligation to put in place an adequate on the job training, while the grievor had to prepare for his course accordingly. The CDS agreed with the Committee's finding that it was inappropriate for the CO of an operational unit to write to a training establishment and that the letter should be remove from the grievor's file. Although the Committee had recommended that the CO be informed of this mistake without any remedial measure being taken, the CDS deemed that any potential administrative or disciplinary action taken against the individual was not within the purview of the grievance system. The CDS considered the grievor's request for retroactive promotion to the rank of capt. As the grievor had not successfully completed Phase IV, the CDS found that the grievor had not achieved the functional operational point and did not satisfy the conditions for promotion to that rank. Consequently, as the grievor did not meet the qualifications for the rank of capt, he also did not meet those for the rank of major. The CDS did not agree with the Committee's finding that the grievor ought to have been granted a third and final attempt to complete his Phase IV. The CDS agreed with the Committee's recommendation to remove the corrective measures taken against the grievor from his file.
With regard to the grievor's allegations, the CDS held that the investigators had carried out a policy compliant investigation, as well as a detailed analysis of the allegations. The CDS partially agreed with the Committee's conclusions in respect to harassment, finding that none of the grievor's allegations met the definition of harassment. However, the CDS did not share the Committee's view that the "intentions" of an individual is not a factor to be taken into consideration in determining whether an allegations is founded or not. The CDS rather held the view that while one of the respondents may have been awkward in her comments towards the grievor, she had no intention to cause harm to the grievor. Consequently, the CDS found that the findings of the investigation with regard to that allegation were reasonable.
Lastly, the CDS did not agree with the Committee's recommendations to issue a RW to the grievor's former CO and that the file be referred to the Director Human Rights and Diversity
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