# 2018-095 Careers, Recorded Warning, Remedial Measures

Case summary

F&R Date: 2020-02-17

The grievor disputed an Initial Counselling (IC) he received after his Commanding Officer determined that he had acted in a manner that caused the Federal Transportation of Dangerous Goods Act to be breached. The grievor contended that the Act was not breached by his actions. As redress, the grievor requested that the IC and all references to it be removed from his personal records.

The Initial Authority denied the grievance, finding that the IC was warranted and administered in accordance with policy.

The Committee consulted with the Canadian Armed Forces Subject Matter Expert regarding the federal Act and regulation in question. Based on the expert opinion provided, the Committee found that the grievor's actions did not cause the federal Act to be breached. The Committee then found that there was no evidentiary basis for issuing the disputed IC and that it was not policy compliant and could not stand.

The Committee recommended that the Final Authority (FA) grant redress by directing that the IC be quashed and removed from the grievor's records, including all references thereto.

FA decision summary

The FA, Director Canadian Forces Grievance Authority, agreed with the Committee's findings that the Federal Transportation of Dangerous Goods Act had not been breached and the grievor had been aggrieved, and with its recommendations that the Initial Counselling (IC) be quashed and all references to it be removed from the grievor's personnel records. However, the FA disagreed with the Committee's conclusion concerning a related violation of Department of National Defence/Canadian Armed Forces regulations concerning dangerous goods transport. The Committee acknowledged that the regulations had been violated, but found it was the driver and not the grievor who was responsible for the violation. The FA stated that this is technically true, but that it was important to acknowledge that the driver was a junior non-commissioned member, while the grievor was a senior officer in a leadership position within the unit. The grievor had asked the driver to transport a dangerous good as a favour, and the driver agreed to do so. As a senior officer, the grievor had a special duty of care to ensure that any favour he asks of a subordinate does not place that subordinate in jeopardy. The FA found that the grievor had not exercised due diligence in ensuring the proper procedures were followed in relation to his request and as a result the driver, a subordinate, was subject to disciplinary action.

The FA concluded that in the ordinary course, an IC would be an appropriate means to address the grievor's conduct. However, in this case the FA found that the IC was imposed in a manner that was punitive, rather than administrative, and ultimately resulted in the grievor's removal from a command position. Consequently, the FA declined to issue a replacement IC.