# 2017-038 Careers, Counselling and probation

Case summary

F&R Date: 2017-09-27

The Committee had to determine whether a counselling and probation (C&P) issued to the grievor was justified.

The grievor engaged in conversations of a sexual nature with a member of a subordinate rank. The Canadian Forces National Investigation Service investigated the matter but recommended that no charges be laid against the grievor. The matter was referred to the unit who issued a C&P for a conduct deficiency due to his inappropriate actions, which were considered to be in violation of Defense Administrative Orders and Directives (DAOD) 5019-5, Sexual Misconduct and Sexual Disorders.

The grievor submitted that his conversations were consensual and not in violation of any policy.

While the C&P narrative referred to sexual harassment, the Committee was not prepared to find that the grievor's conduct was an act of sexual harassment, given that no harassment investigation had been triggered and the evidentiary foundation required to make a finding of harassment had not been established.

The Committee found that the grievor's conduct failed to meet his obligation under the Chief of the Defence Staff operational order for Operation HONOUR. While a C&P was deemed too severe in the circumstances, the conduct deficiency was perceived as serious enough to warrant escalating directly to a Recorded Warning.

The Committee recommended that the Chief of the Defence Staff quash the C&P and that it be replaced with a Recorded Warning.

FA decision summary

The Final authority (FA) agreed with the Committee that DAOD 5019-5 did not apply, as the behaviour did not amount to sexual misconduct.

The FA disagreed with the Committee's finding that it could not establish, based on the available evidence, that the conduct amounted to sexual harassment. The FA found that there had been harassment of a sexual nature, in breach of Operation Honour and the Commander Canadian Fleet Pacific Policy on Personal Relationships and Harassment.

The FA also disagreed with the Committee's finding that an Recorded warning ought to have been issued versus the C&P. The FA found that the Committee did not put sufficient emphasis on the grievor's rank and position of authority, and the impact his behaviour had on shipmates.