# 2014-149 - Procedural Fairness, Remedial Measures

Case Summary

F&R Date: 2014–12–30

The grievor contested the administration of two remedial measures (RM), employment restrictions, a memorandum containing allegations against her and her removal from a Commanding Officer position. The grievor argued that all of the actions taken against her were unfounded and unjust and that she was denied procedural fairness in all of the actions.

There was no Initial Authority (IA) decision as the grievor requested Final Authority adjudication due to the IA not having adjudicated the grievance one year after it was submitted.

The Committee observed that all of the administrative actions being grieved were based on the memorandum which contained allegations against the grievor and recommended actions to take against the grievor. The Committee found that the allegations, though stated as fact, were vague, unsubstantiated, unsupported by any real investigation and that no apparent effort had been made to verify any of the statements. Furthermore, the grievor had not been given any opportunity to respond to the allegations before they were included in the report. The Committee found, based on the lack of evidence and the absence of procedural fairness, the memo itself could not stand.

The Committee considered Defence Administrative Orders Directive (DAOD), 5019-4 - Remedial Measures, and determined that there were significant procedural deficiencies in the administration of the two RMs which warranting the cancellation of both of the Recorded Warnings (RW). In addition, the RWs were based on the uninvestigated allegations contained in the memo and the lack of evidence to support the allegations made the RWs appear to be punitive rather than corrective in nature, contrary to DAOD 5019-4.

After reviewing the letter restricting her employment written by the grievor's Commanding Officer, the Committee found that it was not in accordance with any Canadian Armed Forces policies and determined that it should be annulled.

As for the removal of her CO position, the Committee found that the grievor had been informed one year in advance that she would be in another CO position.. Although the initial plan for her to move to the other CO position never materialized, the grievor had no proprietary right to remain in the first position. Therefore, the grievor had not been aggrieved by the CO's decision to remove her from her position and to appoint someone else.

The Committee recommended that both RWs, the employment restrictions, and the memorandum containing allegations against the grievor all be quashed or annulled and that all reference to them be removed from the grievor's records. The Committee also recommended that the Chief of the Defence Staff forward the file to the Director Claims and Civil Litigation in order that consideration be given to compensate the grievor for the loss of income she suffered due to the employment restrictions which had been wrongly placed upon her.

FA Decision Summary

The FA did not agree with the Committee's findings and recommendations. The FA found that any procedural defect was cured through the grievance process. On the facts leading to the measures taken against the grievor, the FA was of the view that as CO, it was the grievor's duty to take control of the unit's social media sites. The FA received confirmation from a witness regarding important information, which contradicted the grievor's position and what was told to her CO. The FA did not agree with the Committee's finding that the memorandum was a collection of vague allegations and hearsay: the FA found that there were eye witness confirmation and evidence of the incidents and the memorandum was a compendium of the information received. In summary, the FA was left with no doubt that the responses to the grievor's actions were reasonable and supported by the policy. Therefore, the FA did not agree with the Committee's findings the both RW imposed to the grievor: the FA found there were reasonable and justified. Contrary to the Committee, the FA also found that the grievor's employment limitations were also reasonable, given the facts related to the RWs. The FA was of the view that the grievor's CO acted in a prudent manner in ensuring that the grievor was given time to address her very serious shortcomings and to educate herself as to the duties and responsibilities of an officer.