Grievance Case Summary
The Grievor worked full-time for 13 years. He then received approval to and worked part-time for 12 years, as follows: “50% of full-time hours using alternating work weeks, i.e. 40 hours one week with zero hours the next week”. Throughout the period of part-time service, the Grievor's pension contributions were pro-rated to 50% of full-time contributions. When this period ended, the Grievor returned to full-time service and resumed making full-time pension contributions. Subsequently, he asked that the hours he did not work during his 12 years of part-time service be treated as Leave Without Pay (LWOP). He made this request because the Royal Canadian Mounted Police Superannuation Act (RCMPSA) permitted the buyback LWOP as pensionable service. The Grievor's request was refused on the basis that, pursuant to the RCMPSA, time not worked during a part-time schedule was not elective pensionable service.
The Grievor filed a grievance. On his grievance form, he disputed the refusal of his request for elective service for time not worked during his period of part-time service. Subsequently, he added to his position by asserting that the RCMP should not have pro-rated his pension contributions during a segment of his part-time service. He asked that the RCMP retroactively collect from him full-time pension contributions for that segment. A Level I Adjudicator denied the grievance on its merits. The Grievor resubmitted his grievance at Level II.
The ERC found that the subject of the grievance before it was the decision not to treat as LWOP the hours the Grievor did not work during his part-time service. The pro-rating of his pension contributions during his part-time service was not the subject of the grievance. The Grievor had not previously disputed the pro-rating, neither the impugned decision nor his initial grievance form addressed the pro-rating and there was no necessary nexus between that issue and the LWOP decision. The LWOP and pro-ration arguments were distinct arguments which gave rise to distinct timeliness, substantive and remedial considerations. They also derived from different actions or decisions of the Force.
The ERC found that the RCMP's refusal to treat the hours the Grievor did not work during his part-time service as LWOP was consistent with the terms and conditions of the Grievor's employment and applicable authorities. The relevant RCMP and Treasury Board LWOP policies contained requirements that had to be satisfied before LWOP could be granted. The Grievor did not contemplate or satisfy any of those requirements. Moreover, nothing in a Memorandum of Agreement (MOA) signed by the parties suggested that the parties intended to treat as LWOP the unworked hours during the Grievor's part-time service. Rather, the MOA demonstrated that, from the outset, the Grievor was aware of the specific terms and conditions of his part-time service and of the effect of that service on his benefits. This was not a case where a member was confused or misled regarding his change in circumstances and benefits. Neither the case law nor the other principles upon which the Grievor relied bolstered his position.
ERC Recommendation dated June 29, 2016
The ERC recommended to the Commissioner of the RCMP that he deny the grievance.
Commissioner of the RCMP Decision dated November 2, 2016
The Commissioner's decision, as summarized by his office, is as follows:
The Grievor presented a grievance against the Respondent's decision to deny the request to treat the hours he did not work during part-time service as though it were a period of LWOP for pension purposes. The Commissioner agreed with the ERC that the applicable authorities do not recognize unworked part-time hours as LWOP hours. Therefore, the Commissioner found that the Respondent's decision is consistent with applicable authorities.
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