# 2021-326 Careers, Counselling and Probation, Procedural Fairness, Remedial Measures

Case summary

F&R Date: 2023-04-03

The grievor challenged the counselling and probation (C&P) he was issued for a conduct deficiency. The grievor argued that the C&P was unjustified and that the process lacked procedural fairness. As redress, he requested that the C&P be quashed and his opportunities for career progression be restored.  

The Initial Authority (IA) found that the C&P was warranted. The IA noted that the burden of proof required to issue a remedial measure is that of a balance of probabilities, and that this was appropriately applied to the grievor's circumstances. 

Regarding the administration of the remedial measure, the Committee noted that the Commanding Officer, who served as IA, was the same person who served as the initiating authority for the C&P. The Committee found that this constituted a violation of paragraph 7.14(2) of the the Queens Regulations and Orders for the Canadian Forces and the IA's decision must subsequently be set aside. 

The Committee found that there was no evidence that the initiating authority considered the factors listed in paragraph 4.5 of Defence Administrative Orders and Directives (DAOD) 5019-4, Remedial Measures, prior to issuing the C&P. The Committee also concluded that the description of the deficiency was unclear, in contravention of paragraph 5.1 of DAOD 5019-4. The Committee subsequently found that the C&P was not administered in accordance with DAOD 5019-4. 

After a de novo review of the circumstances surrounding the incident that precipitated the C&P, the Committee found that there was reliable evidence that the grievor breached a standard of conduct. The Committee further found that a remedial measure of an initial counselling was the most appropriate administrative action in consideration of the factors outlined in paragraph 4.5 of DAOD 5019-4. 

The Committee recommended that the Final Authority direct that the C&P be quashed and removed from the grievor's personnel records. The Committee further recommended that an initial counselling for a conduct deficiency be issued to the grievor.