Case # 2009-082

Harassment, Progress Review Board (PRB)

Case Summary

F&R Date: 2010-06-23

This grievance arose in the context of the grievor's occupational training, which had been marked by communication issues and conflict between himself and some of the individuals involved in his training, eventually resulting in administrative measures being taken in regard to the grievor. The grievance orginated as two distinct grievances, which were subsequently combined into one grievance.

In the first grievance , the grievor contested the findings and decision of a Progress Review Board (PRB) that was convened to determine his suitability to continue training for his position after he experienced difficulties. The PRB recommended that the grievor be cease-trained. The grievor alleged that the PRB had not been conducted in accordance with relevant policies and procedures, and he raised concerns regarding the circumstances surrounding the PRB. In particular, he indicated that his training reports were not accurate.

As redress, the grievor requested that an independent party conduct an inquiry into the circumstances leading to the PRB and its conduct, that the decision of the PRB be reversed, and that he be returned to training under new supervision.

In response to the first grievance, the initial authority (IA) directed that a new PRB be initiated with members from outside the grievor's unit and that the PRB be conducted in accordance with relevant policies.

A new PRB was held, and the new PRB recommended that the grievor be cease-trained.

Following the new PRB, the grievor requested that his grievance be forwarded to a higher authority for consideration and determination due to his belief that, while the issue of the application of the relevant policy had been addressed by the IA, the other issues in the grievance had not. However, the grievance was not forwarded.

The grievor requested a voluntary release. Subsequently, the grievor's Commander recommended that the release be changed to a compulsory release under item 5(f) of the table to the Queen's Regulations and Orders (QR&O) article 15.01 due to a pattern of conduct deficiency, and he forwarded the matter for administrative review (AR). Pursuant to an investigation by the Director Military Careers Administration and Resource Management 5, the Director Military Careers Administration 2-9 determined that the grievor had not exhibited conduct sufficient to justify mandatory release and that his voluntary release should proceed, as requested.

The grievor submitted a second grievance objecting to the date that had been set for his voluntary release and the circumstances leading to his release. As redress, he requested an alternate release date and an investigation into the events that had occurred over the period of time leading to his release. He indicated that such a request had been made on previous occasions, with no results. The second grievance did not provide any specific information regarding the events that the grievor considered to be problematic. In subsequent submissions, the grievor indicated that the relevant content had already been submitted in relation to his first grievance.

There was no IA decision in regard to the second grievance as the grievor's chain of command was of the view that the grievance did not contain the minimum content required of a grievance.

Ultimately, the grievor submitted both of his grievances to the Director General Canadian Forces Grievance Authority himself, explicitly requesting that his first grievance receive final authority (FA) consideration.

The Board found that, in accordance with paragraph 7.10(1) of the QR&O, the grievor was entitled to FA consideration of the issues raised in his first grievance given that the IA did not grant the redress that the grievor believed was warranted. Specifically, the grievor had requested that he be returned to training under new supervision, and this was not granted.

The Board considered the submissions from the grievance in support of the contention that the grievor should have been returned to training. The Board found that all of the concerns that the grievor had raised had been addressed by the convening of and in the determinations of the new PRB. The Board noted that the new PRB had stated that even if the training reports at issue were disregarded, there were sufficient areas of difficulty to indicate that the grievor could not meet the standard required for his position. The Board found that the grievor was not entitled to be returned to training.

In regard to the issues raised in the second grievance, there was evidence that the issue of the grievor's release date had been resolved to the grievor's satisfaction following the submission of the grievance, and the Board found that this was, in fact, the case. With respect to the grievor's request for an investigation, the Board questioned whether such a request was sufficient to demonstrate that the grievor was "aggrieved" within the meaning of subsection 29(1) of the National Defence Act, R.S.C. 1985, c. N-5. Nonetheless, the Board indicated that, in the interests of fairness and completeness, it would consider the grievor's allegation that there was a failure to investigate. The Board reviewed all of the requests for an investigation that were referred to by the grievor and found that, beyond the measures that had already been taken by the CF to address the grievor's concerns, including the new PRB and the independent review of the grievor's matter through the AR process, the grievor had not provided justification that there was an obligation to conduct a further investigation.

The Board recommended that the grievance be denied.

CDS Decision Summary

CDS Decision Date: 2011-06-23

The CDS disagreed with the Board's findings and its recommendation to deny the grievance. The CDS partially granted the grievance. After considering that the grievor's letter constituted a valid grievance, the CDS essentially found that a harassment investigation should have taken place regarding the actions of members of the grievor's chain of command. The CDS had concerns that the MWO was not in the position long enough to observe whether or not the grievor had any serious mental issues, yet rushed to request an unsubstantiated psychological assessment. Nevertheless, the CDS concluded that it was no longer possible to conduct an investigation at this time. Given the inappropriate actions of some members of the grievor's chain of command, the CDS ordered that his C&P be removed from his records. The CDS decided that the RW will remain, since the grievor's behaviour in response to the chain of command's failure cannot be excused. The CDS found that there was support for the grievor's contention that the impetus for the chain of events leading to his voluntary release was possibly harassment on the part of the chain of command. Therefore, the CDS also directed that the notes, training reports, and documents pertaining to the Independent Review Board, the PRBs, the DMCARM AR and the related PER be removed from files at all levels and disposed of in accordance with the Library and Archives of Canada Act.