# 2019-299 Careers, Initial Counselling, Removal from military duties

Case summary

F&R Date: 2021-05-11

The grievor challenged an initial counselling (IC) he received for conduct deficiencies in three separate events and his removal from command. 

The Initial Authority (IA) found that the IC was reasonable and justified, with the exception of one event. As redress, the IA directed that the IC be replaced with one that reflected the grievor's conduct deficiency related to the first two events cited. 

The Committee found that the evidence on file in the IC only supported the first event cited as a conduct deficiency. The Committee also found that it was of sufficient severity to warrant a remedial measure and that an IC was most appropriate. 

Regarding the grievor’s removal from command, the Committee found that the grievor was not afforded the required procedural fairness. It was not in accordance with the Chief of the Defence Staff Guidelines - Removal from Command and, as such, was not justified. 

The Committee recommended the Final Authority (FA) afford the grievor redress by directing that the IC be re-written to include only the first conduct deficiency event. The Committee also recommended that the FA quash the decision to relieve the grievor of command and forward the grievor's case to the Director Claims and Civil Litigation for consideration of compensation. The Committee further recommended that the FA acknowledge that this decision was not justified.

FA decision summary

The Chief of de Defence Staff (CDS) agreed with the Committee's findings and partially with its recommendations. The CDS agreed with the Committee that the first event warranted an initial counselling (IC), while the two other incidents did not. However, the CDS determined that while he has the authority to replace the defective IC with a policy compliant remedial measure, since the grievor has been released from the CAF and has indicated having no desire to rejoin, there was no value in providing a replacement IC. Regarding the removal from command, the CDS agreed with the Committee that while the concerns raised by the grievor's chain of command may have been valid, there should be no variance from the guidelines where removal is concerned. The grievor should have been temporarily relieved of his duties while an investigation was conducted into all the facts of the case, and since the formal process was not followed the CDS found that the decision to remove the grievor as Commanding Officer to be invalid. Given the passage of time and the fact that the grievor has now retired from the CAF, there is little value in ordering an investigation as requested. The CDS did not agree with the Committee's recommendation that the grievor's file be forwarded to Director Claims and Civil Ligation with his support since the grievor's service in the CAF was not governed by employment contract. The CDS also declined to grant the grievor an ex gratia payment because it would be circumventing Queen's Regulations and Orders for the Canadian Forces 208.31; it would amount to filling a gap in existing policy. The CDS directed that the Director Knowledge and Information Management ensure that the IC with the three incidents, as well as all correspondence related to the grievor's removal from command and any associated documents be removed from his personnel file.