# 2014-196 - Counselling and Probation (C&P), Progressive application of Remedial Measures, Promotion

Counselling and Probation (C&P), Progressive application of Remedial Measures, Promotion

Case Summary

F&R Date: 2015–01–29

The grievor claimed that a five-month delay in administering a Counselling and Probation (C&P) unfairly delayed his promotion. Following an Administrative Review for alcohol misconduct, the Director Military Careers Administration (DMCA) directed that the grievor, a Private at the time, be placed on C&P with a six-month monitoring period. The grievor's unit stated that they did not receive the DMCA direction until five months after the DMCA's direction during which time the grievor had been posted. On being advised of the C&P, the grievor's new Commanding Officer (CO) placed him on C&P, with the required six-month monitoring period.

The Initial Authority (IA) found that, notwithstanding the delay, the C&P was administered in accordance with policy. The IA also found that the delay adversely affected the grievor's promotion and that there were grounds to back-date the promotion but that that decision rested with the DMCA.

The Committee first considered whether the issue of the C&P was an error discovered in the review of a grievance that should be corrected pursuant to article 29(5) of the National Defence Act. The Committee explained that each case must be assessed based on: the facts of the case, the member's entire period of service, previous deficiencies, leadership role, capacity to lead and any history of medical referral. Further, a C&P is the most serious remedial measure and is the last chance to salvage a member's career. Considering the grievor's otherwise short and unblemished career, his CO's recommendation for a Recorded Warning (RW) and the lack of DMCA's reasons for not accepting that recommendation, the Committee determined that C&P was excessive and that it should be replaced by a less severe remedial measure.

The Committee recommended that the C&P be replaced by a RW effective one week after the DMCA decision, with a six month monitoring period, that the grievor's file be reviewed to determine the appropriate promotion date, and that the grievor's personnel file and Performance Evaluation Reports (PER) be amended accordingly.

In the event that the Final Authority (FA) disagreed with the Committee and decided to uphold the C&P, the Committee also reviewed the administration of the remedial measure. While the Committee acknowledged that there is no specified timeline to issue a C&P, it nonetheless considered a five-month delay to be excessive and unduly detrimental to the grievor as a C&P would normally be issued within a week or so of the DMCA decision, with a monitoring period ending six months thereafter. Should the FA maintain the C&P, the Committee recommended that the effective date of the C&P be one week after the DMCA decision with a six-month monitoring period. The Committee also recommended that the grievor's file be reviewed to determine his promotion date and that the grievor's personnel file and PER be amended accordingly.

The Committee made a Systemic Recommendation with regard to the level of the conduct or performance deficiency and the remedial measure applied.

CDS Decision Summary

CDS Decision Date: 2015–06–03

The FA agreed with the Committee's alternative recommendation regarding the C&P. Considering the seriousness of the incident, the FA found that the C&P was the appropriate administrative measure. The FA found that the grievor's chain of command failed to fulfill their responsibilities for both the remedial measure program and grievance administration. The five-month delay for the grievor's promotion is directly attributable to the negligence of two units. The FA decided to replace the C&P by a new one, with a monitoring period starting the date it should have normally started. The FA directed that the grievor be promoted at the end of the monitoring period, back on December 2012, and that his pay be adjusted accordingly. Since there was no mention of the grievor's C&P in his subsequent PER, the FA found that there was no need to amend it.

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