# 2017-036 - Personnel Evaluation Report (PER)

Case Summary

F&R Date: 2017–11–02

The grievor, a Regular Force officer, was temporarily removed from command as a result of being charged with criminal offences. The case went to a civilian court and eventually all charges were withdrawn by the Crown. However, despite all charges being dropped, the temporary removal continued on for many months. The grievor also signed his Personnel Evaluation Report (PER), which made mention of alleged criminal conduct, and indicated that he was not ranked, but recommended for immediate promotion. The grievor argued that, once all charges were withdrawn, the temporary removal from command was no longer justified. In addition, he contended that he had been given no remedy for the negative impact on his career. He stated that his PER had dropped from previous years with no justification, and he was not ranked, therefore, not competitive with his peers. He also noted that the PER made mention of alleged criminal conduct, which was in contravention to the Canadian Forces Personnel Appraisal System (CFPAS).

There was no Initial Authority decision, given that the decision and acts raised in the grievance were made by high level officers who report directly to the Chief of the Defence Staff (CDS). In accordance with Queen's Regulations and Orders for the Canadian Forces Chapter 7, the grievance had to be adjudicated by the CDS at the Final Authority level.

The Committee reviewed the CFPAS and determined that there was no authority, normally granted by DMCSS 2, to mention any charges or alleged criminal conduct in the grievor's PER. However, the Committee also determined that the grievor had put forth no evidence aside from his past PERs to support changing or improving any aspect of the already excellent PER.

The Committee reviewed the CDS Guidelines on Removal from Command (the Guidelines). It determined that, given the information the grievor's chain of command had at the time of the temporary removal, notably the criminal charges against the grievor, it was reasonable and in accordance with the Guidelines to remove him from command on a temporary basis.

The Committee confirmed that neither Annexes C (Notice of Intent to Review the Necessity to Continue or Cease your Removal from Command) nor E (Re-instatement to Command) had been completed by the grievor's chain of command for the duration of the grievor's lengthy temporary removal, despite having a number of opportunities to do so. The Committee noted that, once all charges were withdrawn, the reasons for the temporary removal did not exist. The Committee also pointed out that at the very least, his file should have been reviewed and the Guidelines followed. However, months after the withdrawal of charges, the grievor was still awaiting a decision with respect to the temporary removal from command, with no update or reasons for its continuance.

The Committee stated that the Guidelines are quite clear – the decision to remove someone from command has very serious consequences and must be reviewed when new information comes to light. In this case, that clearly did not occur. The Committee found that the chain of command's lack of action and their omission to deal with this matter administratively was not fair to the grievor and caused him prejudice.

The Committee recommended that the CDS acknowledge that the grievor's temporary removal from command was not administered in accordance with relevant policy. The Committee also recommended that the CDS direct the chain of command to initiate and complete the re-assessment of the grievor's status as soon as possible to either reinstate him in a command position or remove him permanently, in accordance with policy and procedural fairness. Lastly, the Committee recommended that the CDS direct the chain of command to re-write the grievor's PER with the goal to remove any mention of alleged criminal conduct or criminal proceedings.

FA Decision Summary

FA Decision Pending