# 2012-116 Careers, Initial Counselling (IC), Remedial Measures

Case Summary

F&R Date: 2012–11–18

The grievor, a non-commissioned member of the Regular Force posted to a Primary Reserve unit, was issued an Initial Counseling (IC) for behaving in a contemptuous manner towards a superior officer. The grievor argued that he was not being contemptuous when he stated that he would consider whether to obey an order to apologize which he believed to be potentially unlawful and unethical. The grievor sought to have the IC quashed.

The issues before the Board were whether: the order for the grievor to apologize was lawful; whether the grievor was contemptuous to a superior officer; whether the IC issued to the grievor was justified; and whether the actions of the grievor’s Officer Commanding (OC) and Commanding Officer (CO) were justified and in accordance with policy.

A Sergeant (Sgt), subordinate to the grievor, refused the grievor’s order to give instructions to some subordinates and swore at the grievor who then admonished the Sgt in front of the subordinates. The grievor then approached his OC, a Major, who had witnessed the confrontation, and demanded that an investigation be conducted into the Sgt’s conduct. Subsequently, the OC interviewed the grievor and ordered both he and the Sgt to apologize together to the sub-unit for their actions.

The grievor considered that the order was potentially unlawful and unethical and responded to the OC that he would consider whether he would obey. The OC then advised the grievor that if he did not apologize, she would initiate disciplinary proceedings. However, shortly thereafter she offered the grievor and the Sgt the choice of apologizing separately or accepting an IC for conduct and both agreed to apologize, doing so on that same day.

The OC then issued the grievor an IC for behaving in a contemptuous manner towards a superior officer for his statement. The grievor denied that he had been contemptuous, citing a previous case where the Board found that ordering an apology conflicted with freedom of expression, a contradiction of section 2 of the Canadian Charter of Rights and Freedoms.

The Initial Authority (IA) upheld the grievance, quashing the IC and ordering a Disciplinary Investigation into the conduct of the grievor and the Sgt. The grievor did not accept the IA’s explanation that the OC’s order was not manifestly unlawful and submitted his grievance to the Final Authority (FA), requesting clarification as to whether the order to apologize was lawful.

The Board commenced by noting that, although the IA had quashed the IC, the grievance process allowed the FA to substitute their decision for that of the IA, i.e., a de novo review.

The Board then addressed the grievor’s question regarding a lawful order, reviewing the Queen’s Regulations and Orders for the Canadian Forces, article 19.015, and determining that for the OC’s order to have been manifestly unlawful, it would have had to appear to be, to an ordinary person, clearly or obviously illegal. The Board was of the view that this was not the case and the grievor himself acknowledged that he was unsure whether it was lawful or not. Therefore, the Board found that the grievor should have obeyed the order and questioned its lawfulness after.

With respect to whether an order to apologize is a lawful order, the Board examined the Canadian Charter of Rights and Freedoms (the “Charter”) and applied the three-point test of section 1 of the Charter and determined that, although ordering an oral apology would result in a minor infringement of the grievor’s rights, the improved working relationship and the positive effects of the apology on the restoration of good order and discipline within the unit would outweigh the negative effects. Accordingly, the Board found that the order given by the OC to apologize was lawful in the circumstances of this case.

The Board then examined whether the grievor acted with contempt towards the OC when he stated that he would consider whether to obey the order. The Board took the view that the grievor’s statement was a challenge to the OC’s authority and demonstrated a lack of respect to the point of being contemptuous. Therefore, the Board found that the grievor had behaved with contempt (disrespect) towards a superior officer. Accordingly, the Board also found that the IC was warranted and that the OC’s decision to issue it was reasonable.

In the process of analysing this case, the Board observed certain actions by the OC and by the IA which it raised to the attention of the FA.

Regarding the OC, the Board questioned why she would ignore the Sgt’s challenge to the grievor’s authority which she had witnessed and which precipitated the problem with the grievor. The Board found that the OC’s failure to initiate a disciplinary investigation into the Sgt’s actions was unreasonable under the circumstances. The Board also took issue with the manner in which the OC advised the grievor that he could either issue an apology and participate in Alternate Dispute Resolution (ADR) or accept an IC. The Board observed that ADR is a service for which one volunteers. One is not directed into ADR.

Finally, the Board was concerned by the direction given to the grievor by the IA not to discuss his grievance with anyone not involved in its resolution. The Board noted that this caution was not supported by regulations and that there was no bar to the grievor revealing and/or discussing the information in his grievance file with anyone he so chooses.

The Board did support the IA’s decision to launch a Disciplinary Investigation into the behaviour of both the grievor and the Sgt.

The Board recommended that the Chief of the Defence Staff (CDS) deny the grievance.

The Board also recommended that the CDS direct that:

• the IC issued to the grievor for his “contemptuous manner” towards his OC be reinstated;

• the OC be informed that her decision to link a forced apology and the compulsory use of ADR to the issue of an IC should not be adopted anymore; and

• the CO be advised that his direction to the grievor to refrain from discussing his grievance with others is not supported by regulations.

CDS Decision Summary

CDS Decision Date: 2014–03–12

The FA partially agreed with the Committee's findings and recommendations that the grievance be denied. The FA agreed that ordering a subordinate to apologize is not manifestly unlawful and, thus, if so ordered, a subordinate is required to follow through as per QR&O 19.015. However, the FA disagreed with the Committee's recommendation that a new IC be issued. The FA was satisfied that the grievor's conduct did not warrant an IC at the time, since there was no evidence that the grievor's comment was meant to be contemptuous or that the tone implied contempt.