# 2018-038 Careers, Procedural Fairness, Procedural fairness and DAOD 5019-4, Remedial Measures, Recorded Warning, Remedial Measures

Case summary

F&R Date: 2019-05-21

The grievor requested that the recorded warning (RW) he received be cancelled and removed from his file, since his chain of command (C of C) had breached procedural fairness.

The Initial Authority (IA) denied the grievance and found that the C of C had sufficient justification for a remedial measure. Specifically, there was reliable evidence which established that the grievor had demonstrated a conduct deficiency based on the applicable standard of conduct. In addition, the IA explained that even if the C of C was not obliged to ensure procedural fairness, because the only corrective measure subject to procedural fairness is Counselling and Probation, it had met with the grievor to explain the events to him and ask him for his written version of the events.

The Committee has reached conclusions in a number of previous cases, and the Final Authority (FA) agreed, that even though Defence Administrative Order and Directive (DAOD) 5019 4, Remedial Measures, establishes the formal requirements for procedural fairness only in the case of Counselling and Probation, the underlying principles apply, in varying degrees, to all remedial measures.

Lastly, the Committee found that the grievor had demonstrated a conduct deficiency on two occasions. However, it found that the RW imposed on the grievor was too severe and that it should be replaced by an Initial Counselling (IC).

The Committee therefore recommended that the remedial measure be reduced to an IC and that it contain a more detailed explanation of the grievor's conduct, as well as an explanation of the standard of professional conduct the Canadian Armed Forces expects of him.

The Committee also recommended that DAOD 5019-4 be modified to include the duty to ensure procedural fairness when imposing any remedial measure.

FA decision summary

The Chief of the Defence Staff (CDS) disagreed with the Committee's recommendation to allow the grievance in part in order to reduce the remedial measure to an IC, and instead ordered that the remedial measure be removed. The CDS agreed with the Committee's systemic recommendation to amend DAOD 5019-4 so that it states that the duty of procedural fairness must be respected when imposing any remedial measure.

Like the Committee, the CDS concluded that the failure to disclose the administrative investigation conducted by the commanding officer (CO) violated the grievor's right to procedural fairness. The CDS agreed with the Committee's conclusion that it was inappropriate for the CO to obtain and use vague testimony regarding the parties' characters to assess their credibility. The CDS concluded that the breach of procedural fairness invalidated the RW, which was therefore considered to be [translation] “null and void”.

The CDS continued his analysis by reviewing the contents of the file to determine whether the grievor had failed to follow any orders or regulations. First, the CDS noted that there was a workplace conflict between the grievor and his subordinate. The CDS also noted that there was some confusion as to each of their roles. The CDS concluded that the grievor's C of C should have offered him more mentoring rather than escalating the two incidents directly to an RW. He ordered that the measure be removed from the grievor's file.