# 2013-094 - Initial Counselling (IC)
F&R Date: 2014–03–20
The grievor submitted six grievances (2013-091, 2013-092, 2013-093, 2013-094, 2013-095 and 2013-096), which the Committee reviewed together.
Grievances 2013-91, 2013-94 and 2013-096
The grievor held that his chain of command took a number of inappropriate and unjustified career actions against him. More specifically, he objected to an Initial Counselling (IC), a Counselling and Probation (C&P) and the Administrative Review (AR) process initiated by his chain of command for allegedly breaching his C&P, leading to the grievor's Commanding Officer (CO) recommending that he be released under item 5(f) – Unsuitable for Further Service.
In its review, the Committee noted a different appreciation of events between the grievor and the Canadian Armed Forces (CAF). The Committee explained that in normal circumstances it would review the evidence to determine, on the balance of probabilities, if the IC, C&P and AR were warranted.
However, in this case, the Committee found that such a review was not necessary. In the course of the AR initiated for misconduct, serious mental health issues were revealed, which led the CAF medical authorities to establish a direct and causal effect between the grievor's medical condition and his behaviour. On this basis, the AR for misconduct was terminated and an AR for Medical Employment Limitations was initiated. Given that the grievor was assigned undisputed permanent medical employment limitations in breach of the Universality of Service principle, the Committee found the decision to release him under item 3(b) – Medical reasonable and in accordance with the applicable policy. That being said, the Committee also found that it would neither be fair nor reasonable to have the grievor's personnel records continue to reflect a series of remedial and administrative actions for misconduct, which in retrospect, had been initiated and taken on the basis of incomplete information.
Grievances 2013-093 and 2013-095
The grievor alleged that after having disclosed wrongdoing within his unit, he was left unprotected from reprisals and attempts to ruin his career. The grievor submitted that he suffered reprisals, in the form of threats and verbal attacks, from his CO and requested that a Situational Assessment (SA) be conducted in response to these actions.
The Committee found that the grievor's allegations of wrongdoing were investigated and, for the most part, determined to be unfounded. The Committee found no evidence of improper exercise of responsibilities or misuse of authority related to his disclosure of wrongdoing. The grievor's allegations were taken seriously; they were not considered frivolous or vexatious. The outcome was just not that expected by the grievor.
However, the Committee conducted a SA based on the grievor's allegations [transcriptions of his conversations with the CO] and found that, at face value, the definition of harassment was met. The Committee determined that the language reportedly used by the grievor's CO, if proven to be true, would be at a minimum, disturbing and inappropriate and could constitute harassment.
The grievor alleged that his chain of command failed to investigate a service related injury he had reported by written memorandum. However, the grievor could not provide any documentary evidence to support his claim. Given that the burden of proof rests with the grievor, the Committee found his allegation to be unsubstantiated.
The Committee recommended that the Chief of the Defence Staff (CDS) direct the grievor's personnel record be reviewed and purged of all information and documentation pertaining to the IC, the C&P, the breach of the C&P and the ensuing AR, insofar as it pertained to the CO's 5(f) release recommendation.
The Committee also recommended that the CDS direct that a harassment investigation be conducted into the alleged CO's use of inappropriate language.
CDS Decision Summary
CDS Decision Date: 2014–12–17
In files 2013-094 and 2013-096, the FA did not agree with the Committee's findings and recommendation that the grievor's record be purged of all information, documentation and action regarding the imposition of IC and C&P insofar as it pertains to the 5(f) release recommendation. The FA found that the lack of follow on mentoring sessions does not make the IC null and void. The FA explained that there is a clear distinction between disciplinary measures and administrative measures, and there are protocols in place to ensure that CAF members are not disciplined or punished for acts that were beyond their control. The FA was of the opinion that the remedial measure program is the vehicle of choice to guide the intervention of the chain of command which has an obligation to document and support the member even if a medical condition was a causal factor for the behavior. The FA concluded that the grievor was treated in accordance with the applicable rules, regulations and policies and denied that grievances on these issues. However, because the actual wording of the IC was found to be incorrect, the FA directed that it be rewritten to reflect the facts. The FA also directed that the C&P be removed and replaced with a new C&P.
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