# 2014-159 - Initial Counselling (IC), Remedial Measures

Case Summary

F&R Date: 2015–03–24

The grievor was issued an Initial Counselling (IC) for a leadership performance deficiency following a unit investigation into a meeting the grievor held with his subordinates. He argued that he was not afforded procedural fairness in the sequence of events leading to the issuance of the IC. As a remedy, he requested that the IC be rescinded and removed from his personnel file.

The Initial Authority agreed that the grievor was not afforded the requisite degree of procedural fairness but denied the grievance on the basis of other evidence that suggested he displayed a sustained leadership performance deficiency.

The Committee carefully examined the series of events leading up to the issuance of the IC and concluded that there were significant breaches of the grievor's right to procedural fairness. Specifically, the unit investigation report was not disclosed to the grievor nor was he provided an opportunity to respond to the findings of the investigation before the IC was issued.

Furthermore, the Committee found that there was a reasonable apprehension of bias in the manner in which the decision was made. Indeed, the decision to issue the IC was made before the unit investigation was complete, and the investigation report was not an accurate and fair portrayal of the evidence upon which it was based. Instead, the report focused entirely on prejudicial comments made about the grievor while not acknowledging that there were other more salutary comments. The report also contained factual inaccuracies, conjecture, and opinion that the Committee found was inappropriate for an investigation report. Finally, the investigator chose to interview some witnesses and formed a presumption that the remaining possible witnesses would provide negative commentary about the grievor.

The Committee found that the IC should be rescinded, based on the breaches of procedural fairness and the reasonable apprehension of bias. The Committee also found that it would not be appropriate to conduct a de novo review now as it would be impossible to determine what impact a fair and unbiased investigation combined with an opportunity for the grievor to make submissions might have had on the Commanding Officer's decision-making process.

The Committee recommended that the IC should be removed from the grievor's personnel file.

CDS Decision Summary

CDS Decision Date: 2015–11–05

The FA did not agree with the Committee's findings and recommendation that the IC be removed from the grievor's personnel file. The FA was of the view that its de novo review cured all the procedural fairness breach and that considering the evidence on file, the grievor's IC was well deserved and will stand.