# 2015-284 - Counselling and Probation (C&P), Remedial Measures

Case Summary

F&R Date: 2016–03–11

The grievor contested the decision to place him on Counselling and Probation (C&P). During a reverse manoeuvre, the vehicle he was driving hit a tree, which struck a member of his crew and caused injuries to his neck and head, requiring an immediate emergency medical evacuation. This was the second such incident within a short period of time, indicating an unsatisfactory performance on the part of the grievor as Patrol Leader. The grievor said that he was aware of the seriousness of the shortcomings attributed to him but pointed to alleged breaches of procedural fairness in the administration of the C&P. He maintained that the C&P documents had been changed without his knowledge, that the initiating authority had been biased against him and that not all the documents forming the basis of the decision to place him on C&P had been disclosed to him. He asked that the C&P be removed from his files.

The initial authority (IA) denied this grievance, concluding that the grievor had clearly shown a performance deficiency in driving his vehicle and that there are reasonable grounds for placing him on C&P.

The Committee was asked to determine whether the C&P was warranted under the circumstances and whether it had been administered in compliance with the applicable policies.

The Committee noted that the changes to the C&P form were made after the grievor submitted his comments, modifying the overall characterization from a safety infraction to a failure of command and control. The Committee stated that it disagreed with the grievor's contention that this was a breach of procedural fairness requiring cancellation of the measure. The description of the incident was also clear and unaltered and was such the grievor was fully capable of understanding the nature of the allegations against him. Neither did the Committee agree with the grievor's claim that his commander was biased against him when he decided to place him on C&P.

The Committee did conclude, however, that not all the information taken into account by the initiating authority was not disclosed to the grievor, thus depriving him of the opportunity to formulate observations fully supported by the facts before being placed on C&P. However, this breach of procedural fairness in no way invalidated the decision to impose the corrective measure. The grievor received all the information during the review of his grievance, and the Committee proceeded with a de novo review of all the evidence, including the additional allegations and comments of the grievor, in order to examine the merits of the C&P. The grievor may also submit his observations concerning the Committee's report to the Final Authority.

Based on the testimony and the photographs of the scene, the Committee concluded that the accident was the result of a lack of judgement on the part of the grievor and that he demonstrated a poor application of his knowledge as crew leader. Given the circumstances, the Committee considered that the C&P was warranted.

The Committee recommended that the CDS deny the grievance.

FA Decision Summary

The FA did not agree with the Committee's recommendation to deny the grievance. The FA agreed with the Committee's finding that an investigation pursuant to QR&O 21.46 was not carried-out, but held that it was unnecessary to do so at this point. The FA also found that procedural fairness principles had been violated, but that the grievance process can cure such breaches. Unlike the Committee, the FA found that the grievor had been aggrieved. The FA found that the incident was not of a serious enough nature to justify terminating the IC, issued only seven days prior to the incident, and replacing it with C&P. The FA considered the low impact of the vehicle, the condition of the tree and the fact that the serious injury was a second order effect, which did not warrant escalating to a more severe remedial measure. The FA ordered that the C&P and all related documentation be removed from the grievor's personnel files.