# 2014-038 - Removal from Military Duties

Case Summary

F&R Date: 2014–11–28

Permanent employment limitations were imposed on the grievor for medical reasons. He was assigned to another unit to ease his transition to a civilian career. After a few months, his new commanding officer, highlighting his success in the position, recommended a three-year accommodation period, which was granted. Shortly thereafter, allegations were reported against the grievor. The commanding officer then made the decision to relieve him from his duties and tasked subordinates with informing him of this decision. The Military Police also launched an investigation. The grievor remained without duties for a few days. He requested a meeting with his commanding officer on three occasions, but to no avail. One month after relieving him from duty, the commanding officer signed a letter notifying the grievor that he would be subject to a temporary change of duties as a preventive administrative measure.

The grievor filed a grievance a year later, seeking to determine why he had been relieved from his duties and why he had not been questioned as part of the police investigation. The grievor, suffering from severe stress and still without answers, had to be transferred to the Joint Personnel Support Unit.

The initial authority granted the grievance and provided written responses to the grievor's three questions regarding the reasons for his removal from duty and for the investigation, and an explanation as to why he had not been questioned during the police investigation. Dissatisfied, the grievor asked additional questions and requested that the grievance be referred to the final authority.

The Committee was of the opinion that the initial authority's response had not addressed the real underlying issue in the grievor's grievance, i.e., whether the treatment to which he had been subjected was, overall, acceptable. The Committee noted that the commanding officer and the initial authority both seemed to believe that the relief from duty had been carried out in accordance with the procedure for disciplinary action under article 19.75 of the Queen's Regulations and Orders for the Canadian Forces. That article did not apply, however, as this was an administrative measure taken under Defence Administrative Orders and Directives (DAOD) 5019-4 and 5019-2. Nevertheless, the Military Administrative Law Manual requires a minimum of procedural fairness at all times, with higher standards the greater the impact of a decision on a military member's career. Fundamentally, the member must be informed of the relevant facts and be allowed to make representations, which must be taken into consideration before making a decision, and, once made, the decision must explain the reasons.

In this case, the reasons for relieving the grievor from his duties were not explained to him and he was not given the opportunity to present his case before the decision was made. The decision does not seem to have been made based on carefully validated information, but rather on mere allegations, which, for the most part, would have been disproven if even the most cursory check had been performed. The grievor's commanding officer never met with or spoke to the grievor despite his repeated requests. Hardly any follow-up was carried out with the Military Police, thus allowing the investigation to drag on for nearly three years before a conclusion was reached that cleared the grievor of all allegations. Furthermore, even if the allegations had turned out to be true, the Committee is of the opinion that it was highly unlikely that they could justify relieving him from his duties, given the nature of the allegations and the circumstances.

The Committee recommended that the CDS recognize that the principles of procedural fairness were violated, resulting in serious consequences for the grievor, and that he refer the grievor's file to the Director Claims and Civil Litigation, for assessment of the possibility of financial compensation.

CDS Decision Summary

CDS Decision Date: 2015–06–29

The FA agrees with the Committee that the grievor was aggrieved, but he does not agree with all of the Committee's reasoning. The FA is erroneously interpreting the Committee's analysis concerning the grievor's removal from his duties. Essentially, the FA is of the opinion that, as the grievor was in a retention period, his right to procedural fairness was not a legal obligation. The FA is of the opinion that the existence of allegations against the grievor indicated that CAF resources were being used for an improper purpose and justified the actions of the chain of command, but the FA has not considered the validity of those allegations. The FA is of the opinion that the chain of command did not hear the grievor's version, which, had it been obtained, could have shed light on the situation. The FA is also of the opinion that the military investigation was not conducted within a reasonable time frame, and that it is unacceptable for the investigation to have been delayed because the investigator was on leave. The FA will bring these breaches to the attention of the CAF Provost Marshal. Regarding the referral of the case to the DCCL to determine whether the grievor may be compensated, the FA argues that, since the incident took place in Quebec, the Crown Liability and Proceedings Act applies, but the grievor has not shown that the circumstance could result in a claim against the Crown.