# 2023-073 Careers, Class B Reserve Service, Recorded Warning, Remedial Measures

Case summary

F&R Date: 2024-11-19

On 5 July 2024, the Committee was provided a short decision letter, signed by the Final Authority (FA) on 1 May 2024, denying three of the grievor's four grievances. The decision letter simply referred to FA accepting the Initial Authority's (IA) conclusions and did not provide any analysis. The Committee's position is that this decision letter is not valid. Pursuant to article 7.24 of the Queen's Regulations and Orders for the Canadian Forces, once a grievance file has been referred to the Committee, the FA may only exercise its duties after receiving the Committee's Findings and Recommendations (F&R). Consequently, this F&R report dealt with all four grievances referred.

The grievor disputed the decision to issue him a Recorded Warning (RW) for consuming an unidentified beverage in a Department of National Defence (DND) rented vehicle, and its subsequent effects on his career. He submitted that he did nothing illegal nor violate any Canadian Armed Forces (CAF) policies, and simply looking at the label on the can would have shown that he was consuming a non-alcoholic beverage. He contended that the measure of his expected conduct, as outlined in the RW, was subjective in nature. As redress, the grievor requested that the RW be rescinded and all associated documentation, including a Unit Disciplinary Investigation (UDI), is removed from his personnel file.

The IA denied redress. The IA found that the RW was warranted as the grievor's actions projected a negative image on the CAF, thus he had demonstrated a conduct deficiency. The IA also explained that the action plan that accompanied the RW was measurable, achievable and related to the deficiency.

The Committee found that there was no evidence of firsthand reporting to the Chain of Command (CoC) that the grievor had consumed alcoholic beverages while on duty in the DND rented vehicle. As such, the Committee found it unreasonable that a rumour, which was ultimately proven false, could possibly lead to the issuance of a RW against the grievor for poor conduct. Consequently, the Committee found the issuance of a RW to be unjustified.

The grievor disputed the decision not to extend his period of Class “B” Reserve Service and deny him future employment opportunities within the CAF. The grievor stated that he was led to believe his employment would be extended given an implied agreement, the need for that position to be occupied, and his accepted leave plan which included dates in the new year. As redress, he requested retroactive appointment into a suitable position based on his qualifications and experience, and lost wages.

The IA denied redress. The IA explained that granting a new period of Class “B” Reserve Service is not a right and the grievor ought to have reasonably known that consuming a non-alcoholic beer in a military vehicle could create a serious misperception. The IA found that the resulting loss of confidence in the grievor's judgement and leadership supported a decision not the extend his service or offer him further employment at that time.

The Committee found that the grievor was denied employment as a direct result of the UDI into the reported beverage incident. Having found that the RW was unjustified, the Committee thus also found that the grievor was aggrieved by the decision to deny future CAF employment.

The grievor disputed the decision to issue him a RW for comments he made on social media while he was under significant financial and emotional stress. He contended that the decision not to extend his period of Class “B” Reserve Service was sudden, unexpected, and resulted in an “ill-advised” post expressing his dissatisfaction about the decision made. The grievor submitted that an Initial Counseling (IC) should have first been issued before progressing to a RW. As redress, the grievor requested that the RW be removed from his personnel file.

The IA denied redress. The IA stated a RW was warranted as the grievor's comments were improper, discredited the CAF, and the grievor failed to meet an established standard of conduct. The IA explained that the comments justified an immediate escalation to a RW, as opposed to an IC, regardless of the grievor's mental health at the time.

The Committee found that the grievor ought to have known not to make improper comments on a public forum given his rank, experience, and senior position within the CAF. The Committee thus found that the RW was justified.

The grievor disputed the decision to deny his request to participate in an exercise that would maintain his qualifications current. He contended that the conditions of his RW did not allow him to remain current and proficient. He stated that there was no option for a certification waiver and the decision to deny his participation in the exercise was punitive. As redress, the grievor requested to be permitted to participate in training to maintain his qualifications, that he not be denied employment opportunities, and that he be compensated financially for missed employment opportunities and training.

In the IA disclosure, the analyst stated that the grievor's CoC had offered the grievor a one-month certification waiver as an option to meet his currency requirements. The analyst stated that the grievor declined, purportedly because he preferred to attend a three-week recertification. The IA rejected the grievance, finding that the issues raised were addressed in previous grievances.

The Committee found it reasonable for the grievor's CoC to have limited or modified his leadership responsibilities for a period of time following his disparaging comments on social media. The Committee also found that the grievor had made a personal choice to decline the certification waiver – a solution that would have allowed him to keep both his certification and abide by the requirements of his RW. As such, the Committee found that the grievor was not aggrieved by the decision not to allow his participation in the exercise.

The Committee recommended that the FA afford the grievor redress by quashing the RW relating to consumption of non-alcoholic beer and removing all references to it from the grievor's personnel file. The Committee recommended that the grievor be offered suitable periods of Class “B” Reserve Service commensurate with his rank and trade upon conclusion of his current career limitations. With respect to the grievor's request to quash the RW related to social media comments, the Committee recommended the grievor not be afforded redress. Lastly, while the Committee made no specific remedy recommendation with respect to the grievor's dive qualification recertification, the Committee recommended he not be actively excluded from future dive exercises resulting from the chain of events depicted in these four grievances.