Case # 2009-075

Administrative Action, Apologies, Grievance Submitted to CDS Outside the Time Limit (QR&O 7.10), Grievance Submitted to the IA Outside the Time Limit (QR&O 7.02), Honorable Service, Procedural Fairness

Case Summary

F&R Date: 2010–06–18

The grievor filed three grievances (two files) concerning administrative action and a theatre personnel evaluation report (PER). The Board examined the three grievances and formulated its conclusions and recommendations in a single report.

The grievor filed a first grievance concerning the PER he had received after a deployment. That same day, he filed a second grievance concerning the decision of the Land Force Quebec Area Deputy Commander (DComd) not to deploy him again until further notice and the recorded warning (RW) he received one year later related to the same circumstances. Lastly, the grievor filed a third grievance regarding an RW he had received for insubordination, on the grounds that the guidelines on RWs and counselling and probation (C&P) in effect at that time had not been followed.

In his grievance related to the PER, in addition to disputing the evaluation he had received, the grievor asked for explanations concerning the late submission, the loss of the PER, and the reason why this document was not dated. This grievance was forwarded to the final authority (FA) without first receiving a decision from an initial authority (IA).

With regard to the exclusion from deployment and the RW related to the incident in theatre, the IA found that the policies and procedures had been followed in both cases of administrative action and that the restriction imposed should be maintained. The IA refused to consider the third grievance on the grounds that it had been filed after the six month time limit prescribed by regulations.

The Board noted that the grievor had asked many times for explanations concerning the decision forbidding him from participating in domestic contingency operations and international operations until further notice, but had not received a concrete answer. The Board also noted that the grievor had not had the opportunity to submit his representations to the DComd prior to his decision. Given the circumstances, the Board concluded that this decision had been made without procedural fairness. The Board examined the facts and, after considering the seriousness of the offences, the absence of pre-deployment training and the absence of follow-up afterwards, concluded that the DComd’s order that the grievor be barred from deployment was unreasonable and that this order should be removed from the grievor’s files.

Concerning the PER, the Board attempted to reconcile the essentially negative comments regarding the grievor’s performance with the decision to extend his service in an operational theatre on two occasions. The Board was not able to conclude that the grievor’s PER was fair or that it was an accurate representation of his performance and potential during the period in question. As time had passed and as the parties would not move from their respective positions, the Board concluded that it would be pointless to propose that the PER be rewritten, but it recommended that the document be removed from the grievor’s files.

With regard to the third grievance, the RW for insubordination, the Board concluded that the IA’s decision was valid and made within the authority framework. The RW had been justified and reasonable under the circumstances, and the grievor had been treated fairly.

The Board also pointed out that, in his representations, the grievor had disputed a number of other decisions for which he demanded redress. Among other things, the grievor briefly mentioned that the Canadian Forces had refused him the General Campaign Star (GCS) and that he disagreed with the RW he had received a year after certain weaknesses had been pointed out to him.

Regarding the GCS, the evidence did not permit the Board to conclude that the grievor’s service was dishonourable. Consequently, the Board concluded that the refusal to grant the GCS to the grievor was unreasonable under the circumstances.

According to the policy in effect, the Board felt that strictly in terms of the incidents in theatre, the RW of 26 October 2004 was problematic on many levels: it raised a difficulty for which a lack of training and preparation had been identified; other than a general description of the weak point, the RW did not contain any information or indication to the effect that the grievor had received the necessary guidance to improve; instead of indicating how to correct the identified weak point, the RW made reference to a report of shortcomings that has not existed since 1997; and the RW had been issued a year after the incidents in question. For these reasons, the Board concluded that the RW issued in 2004 was unreasonable and should also be removed from the grievor’s personnel file.

The Board recommended that the Chief of the Defence Staff (CDS) partially grant the grievance by ordering the reversal of the decision not to allow the grievor to be deployed, and by ordering that the theatre PER and the RW of 26 October 2004 be removed from the grievor’s files and handled in accordance with the Library and Archives of Canada Act.

The Board also recommended that the CDS grant the GCS to the grievor.

CDS Decision Summary

CDS Decision Date: 2011–03–02

The CDS is partially in agreement with the Board’s findings and recommendations. Contrary to the Board, the CDS has given the benefit of the doubt to the complainant and considers that the issuing of an RW for insubordination was problematic, poorly administered and too severe, taking into account in particular the atmosphere that prevailed in the unit at the time.

The CDS approved the Board’s systemic recommendation to define the concept of dishonourable service and to establish criteria for determining when it has occurred; the Commander of Canadian Expeditionary Force Command has been tasked with presenting a proposal in this regard to the competent authorities.