Communiqué
January to March 2010
In this issue:
G-482The Grievor filed an harassment complaint alleging
that a number of actions by certain members of
management over a two-year period constituted harassment. The
alleged actions included improper performance reports, punitive
transfers, unnecessary fitness for duty assessments, unwarranted offduty
sick time, and retaliatory discipline proceedings.
Persons who reviewed the complaint advised the then-Assistant
Commissioner (A/Commr.) to request further particulars in order
to make a determination. However, the A/Commr. did not follow
this advice. Instead, the A/Commr. determined that the conduct
complained of did not meet any of the "quite specific" definitions
of harassment contained in the RCMP's Policy on Internal Conflict
and Harassment in the Workplace, chapter XII.1 of the RCMP
Administrative Manual (AM.XII.1), and decided that he would not
investigate the complaint. The Grievor grieved the A/Commr.'s
determination and decision.
Procedural errors occurred in the Level I proceedings, including:
- when the Grievor requested a ruling on a preliminary issue, the
Office for the Coordination of Grievances (OCG) wrongly identified
the issue, and instead asked the Level I Adjudicator to rule on
another issue, which he did;
- when the Grievor made a reasonable and timely request for a brief
extension of time to file his submissions on the merits, the OCG
denied his request by stating, erroneously, that it did not have
authority to grant extensions;
- although the Grievor filed his submissions shortly thereafter,
the OCG advised the Respondent that he need not review them,
and wrongly advised the Level I Adjudicator that the Grievor's
submissions did not address the merits; and
- despite the OCG's rationale for denying the Grievor's request for
extension, it subsequently granted the Respondent's late and/or
unjustified requests for extensions.
ERC Findings
Procedural Fairness: In managing the grievance process, the OCG
committed procedural errors which created unfairness for the Grievor
and seriously restricted the Grievor's right to be heard.
The Merits of the Grievance: The ERC
reviewed the steps to be followed upon
receiving an harassment complaint, as
set out in the Treasury Board's Policy on
Prevention and Resolution of Harassment
in the Workplace, and the RCMP's policy,
AM.XII.1. The ERC found that the A/Commr.
failed to treat the complaint in accordance
with the policies. First, the A/Commr. should
not have reached a decision without first
meeting with the Grievor and seeking
additional information. Second, if found to
be true, the allegations could possibly fall
within the broad definition of harassment,
and in particular, within the definition of
abuse of authority. Therefore, this was not
one of the rare cases in which it was justified
to refuse to initiate an investigation.
ERC Recommendations
The ERC
recommends that the Commissioner of
the RCMP allow the grievance both on the
basis of procedural fairness and on the
merits. The ERC further recommends that
the Commissioner order that a different
Delegated Manager/Commander/Supervisor
be named to be responsible for processing
this harassment complaint, and that the
complaint be dealt with according to the
Treasury Board's Policy and the RCMP's
policy, AM.XII.1.
G-483The Grievor made a
harassment complaint
against her supervisor. The Respondent
in this grievance, who was the District
Officer, ordered a critical incident review of
the complaint. He then decided that the
Grievor's complaint was not harassment but
rather amounted to a workplace conflict
situation. The Grievor objected to the
decision and argued that the Respondent
referred to her as being over-sensitive and
cited work performance issues, rather than
discussing all the incidents of the alleged
harassment complaint
The Level I Adjudicator decided that the
Grievor lacked standing, as the Respondent
did not have the authority to respond to the
Grievor's harassment complaint. However
the Level I Adjudicator also stated that the
Grievor would then be able to send her
complaint to the authorized decision-maker.
ERC Findings
The authority of the
Respondent as the decision-maker in
a grievance is not an issue of standing
under s. 31(1) of the RCMP Act but rather
is a question with respect to the merits
of the grievance. The proper course of
action for the Level I Adjudicator was to
allow the grievance on the basis that the
Respondent was the wrong person to make
a determination about the harassment
complaint and then order the complaint to
be dealt with according to the applicable
Treasury Board and RCMP policies.
The ERC noted that the process set out in
the RCMP policy for the investigation and
determination of a harassment complaint
was not followed in this case. According to
the then RCMP Policy, AM XII.17, the Human
Resources Officer (HRO) was responsible
for the screening and investigation of the
harassment complaint as well as advising the
Commanding Officer (CO) of the Division
who was the final decision-maker. The
Respondent was neither the HRO, nor the
CO. The ERC noted that had the Respondent
followed the policy, the significant delay
would have been reduced, thus minimizing
the adverse consequences for the Grievor
and the integrity of the process.
ERC Recommendations
The ERC
recommends that the grievance be allowed
and that the Commissioner of the RCMP
ensure that the harassment complaint be
dealt with in accordance with Treasury Board
and RCMP policies, if it has not already been
done. The ERC also recommends that the
Commissioner order that the harassment
complaint be deemed to be filed within the
one year as required by the policy.
G-484 The Grievor served at an
isolated post. He believed
that the Treasury Board Secretariat (TBS)
undervalued the Vacation Travel Assistance
(VTA) rate for his isolated post. In his
opinion, the rate was both too low and
contrary to a provision of the TBS Directive
under which it was established. Other
members felt similarly. The Respondent
learned of this issue. He allegedly raised it
with the TBS as the TBS Liaison on behalf of
the Force. He later stated that the VTA rate
for the Grievor's isolated post was correct.
However, he did not reply to requests for a
rundown of what he had told the TBS, or for
an account of the TBS's rationale for the rate
at issue. The TBS released a series of new
VTA rates. The disputed one remained the
same.
The Grievor filed a Level I grievance. He
argued that the VTA rate for his isolated
post was too low. He also urged that the
Respondent did not engage the TBS about
his problem with it. The Level I Adjudicator
denied the matter on the ground that the
Grievor did not have standing. He held
that the TBS properly fixed the disputed
rate under statute and policy, and that it
therefore did not represent a decision, act or
omission made in the administration of the
affairs of the Force. The Grievor submitted
a Level II grievance after the deadline for so
doing had expired.
ERC Findings
The ERC found that the
Grievor should be given a statutory
extension so that his grievance could
be heard at Level II. It reasoned that
the concerns he raised were of broad
importance to the Force, given that they
were prevalent at multiple isolated posts,
and had led to several related grievances.
It then found that although the Grievor
had a compelling case for showing that
the disputed VTA rate was too low, the
Level I Adjudicator was right in that the
Act barred the Grievor from contesting
it via the Force's grievance process. This
was so because, by law, only the TBS could
create or amend the rate. However, the
ERC noted that the Grievor could grieve
the Respondent's alleged failure to address
concerns about the VTA rate with the TBS.
The record revealed that this was part of the
Respondent's duties.
The ERC assessed the merits, given both
the passage of time and the fact that the
parties had been heard on all the issues. It
found that the Grievor had not established
that the Respondent omitted to address the
purportedly faulty VTA rate with the TBS.
It pointed to correspondence in the record
which indicated that the Respondent did
engage the TBS about that issue. It also
observed that the TBS's failure to change
the disputed VTA rate did not, in and
of itself, show that the Respondent had
neglected to bring the Grievor's concerns
to the TBS. Lastly, the ERC commented that
the Respondent should have handled this
matter more openly and accessibly, as per
the stated aims of the TB Directive, and the recommendations of a federally-appointed
task force.
ERC Recommendation
The ERC recommends
that the Commissioner of the RCMP deny
the grievance.
G-485
The Force assigned a
bilingual 'C' oral linguistic
profile to a position in a province. It later
advertised the job. The Grievor wanted to
compete for the position, as it represented
a promotion for him. The Force stopped
him from doing so because he did not have
a 'C' oral rating in French. The Grievor
filed a grievance. He contended that the
Force inappropriately prioritized language
qualifications for jobs in general, assigned
inconsistent linguistic requirements to
positions in that province, and unfairly
prevented him from competing for the
position because he did not meet its oral
profile. He also urged that his area was
mostly English-speaking, that his French was
good, and that the job's bilingual designation
was too strict, given those and other factors.
The Respondent was late in furnishing his
submission. It was not considered for that
reason.
The Level I Adjudicator partly allowed the
grievance. He supported the position's
oral linguistic rating, reasoning that the
incumbent had to be able to appraise
bilingual subordinates with high proficiency
in their chosen official language. Yet he
also found that part of the language profile
had not been adequately justified. He
therefore directed that an Official Languages
Coordinator review the matter and provide
an acceptable justification, or alternatively,
that the Force amend one of the position's
linguistic stipulations and reopen parts of the staffing action to the Grievor. The Grievor
contested this decision at Level II. He stressed
that the Force assigned conflicting language
classifications to positions in that province.
He provided job postings to validate his point.
The Respondent also presented a submission,
as well as documentation in support of it.
ERC Findings
The ERC began its analysis by
addressing some preliminary issues. It found
that the RCMP Act prohibited the Grievor
from grieving broad policy matters regarding
how the Force dealt with language profiles
in staffing actions throughout Canada and
that province. However, it observed that the
Grievor could grieve the linguistic rating given
to the Position, as it represented a specific
decision which directly affected him. The ERC
also found that neither the Grievor's Level II
job posting exhibits, nor the Respondent's
entire Level II presentation, were admissible.
It reasoned, in part, that those materials could
have been provided at Level I.
The ERC then reviewed the merits. It
found that the evidence and the applicable
authorities supported the Level I conclusion
that the position's oral language profile was
suitable. It added that when the Position
was viewed globally, the record showed that
the 'C' oral rating was most appropriate,
in light of the language skills required to
handle the sensitivities of managing and
appraising bilingual members. It also relied
on Federal Court and Supreme Court decisions
in dismissing as irrelevant the Grievor's
arguments that his posting was mostly
English-speaking, that his French was good,
and that similar, nearby positions had more
relaxed language ratings.
ERC Recommendations
The ERC
recommends to the Commissioner of the RCMP that he deny the grievance. It also
recommends that he endorse the Level I
Adjudicator's decision and that he ensure
that the remedy ordered at Level I is fully
instituted.
G-486
The Grievor was off
duty sick (ODS) when he
was ordered to visit with a Health Services
Officer (HSO) in another city. The day
before his trip, he told his supervisor of
his impending journey. However, neither
authorization for travel expenditure nor
transportation methods were discussed.
He later filed a travel expense claim which
included a mileage claim for the use of his
personal vehicle. The Respondent denied
the mileage claim in early February 2007 on
the basis that the Grievor did not have preauthorization
to travel, and that he should
have driven a police vehicle instead of his
personal vehicle. Yet he offered to allow a
payment of the Grievor's gas and meal costs.
The Grievor later presented his claim to the
HSO, who told him it needed to be sent to
the Respondent. The Respondent rejected it
again on February 22, 2007.
In his grievance, the Grievor argued that his
travel was mandatory, that nobody told him
to use a police vehicle, and that others had
received mileage costs in similar cases. The
Level I Adjudicator denied the matter on
the ground that it was untimely. She said
the Grievor knew that his claim had been
rejected in early February 2007, and that the
second denial of his claim on February 22
was not a new decision which could restart
the time limit clock. She added that she
would have denied the case on the merits.
She partly reasoned that members on ODS
status were not exempted from obtaining
pre-approval to travel
ERC Findings
The ERC found that the Level I
Adjudicator should have afforded the parties
a chance to address the time limit issue
before ruling on that subject. Yet given
the passage of time, and the fact that the
parties made submissions on the matter at
Level II, the ERC chose to deal with the issue.
It agreed that the grievance was untimely.
However, it also opined that it would be
appropriate to retroactively extend the time
limit in this case. It felt that the Grievor's
late submission was partly attributable to his
genuine confusion over who could allow his
claim.
The ERC then addressed the merits. It
observed that the Grievor's ODS status
did not exempt him from requirements of
Treasury Board and RCMP policy. Although
policy required advanced permission for
business travel, the ERC found that postauthorization
was warranted here. It
explained that the Grievor had told his
supervisor about the trip, and the supervisor
knew the trip was mandatory. Yet the ERC
found that the Respondent was justified
in denying the Grievor's mileage claim, as
the Grievor did not have permission to use
his own vehicle. It also found that it was
reasonable for the Respondent to agree to
authorize a payment of the Grievor's gas
and meal costs. This was so because the
Grievor was ordered to take the trip, and
those costs would have been paid had he
taken a police vehicle.
ERC Recommendations
The ERC
recommends to the Commissioner of
the RCMP that he deny the grievance. It
also recommends that he order that the
Grievor be reimbursed for his gas and meal
expenses. It further recommends that the
Commissioner order a review to ensure that methods are in place to inform members on
ODS status of the policy requirements for
travel to medical appointments. This review
should also ensure that methods are in place
to advise RCMP personnel about the proper
way to process these travel expense claims.
G-487
The Grievor filed a
grievance against the
Respondent's decision not to recognize his
overtime hours. These hours were incurred
during his participation in meetings of the
Mounted Police Members' Legal Fund (Legal
Fund). The meetings were held outside
of his area of work; upon his return, he
submitted a request for compensatory leave
for 12 hours of overtime. The Respondent
informed the Grievor that it would not
authorize his request, because it was not
consistent with established policy.
Shortly thereafter, the Respondent
requested that the Grievor's request for
overtime be subject to an investigation
under Part IV of the RCMP Act. The Grievor
filed a second grievance with the Office
for the Coordination of Grievances (OCG)
alleging that he had been the victim of
discrimination by his supervisor.
The OCG asked the Level I Adjudicator to
determine whether the two grievances
should be combined. The Level I Adjudicator
determined that the two grievances should
be handled separately. The Adjudicator also
found that, given the internal investigation,
other recourse was available to address
the issue, and therefore the Grievor lacked
standing. The Grievor later submitted a third
grievance concerning the OCG's decision to
refer his grievance to the Adjudicator before
hearing his representations on the issues of
combining the grievances and standing
ERC Findings
The ERC found that the OCG
should have met with the parties to hear
their observations on the issue of combining
the grievances. before referring the matter
to the Level I Adjudicator for decision. The
ERC also found that the Level I Adjudicator
erred in finding that the Grievor lacked
standing by rendering that decision without
giving advance notice to the parties. The
ERC finds that the investigation of the
Grievor is not equivalent to a process
through which he may obtain the redress
sought in his grievance.
With regard to the merits of the grievance,
the ERC noted the Legal Fund's status as
an independent entity, separate from the
RCMP. Although employees may be invited
during their work hours to attend meetings
for entities that are independent of their
employer, the onus was on the Grievor to
show that he was entitled to compensation
for attending those meetings. The Grievor,
who understood that he was attending
Legal Fund meetings outside of his work
hours, did not establish that any authority
granted him entitlement to compensation.
Moreover, the Grievor did not establish that
he was entitled to overtime hours as a result
of his participation in the meetings, given
that the applicable policy required that he
seek prior approval from his supervisor to
work overtime hours.
ERC Recommendation
The ERC recommends
that the Commissioner of the RCMP deny
the grievance.
G-488
The Grievor was subject to
Criminal Code and Code of
Conduct investigations, and was suspended
with pay. In November 2004, he requested
that he be provided with legal counsel at public expense. His request was denied on
November 17, 2004. He was aware of this
denial no later than November 24, 2004.
Although the Grievor repeated his request,
he did not present any new information
to merit a reconsideration of the original
decision. The Grievor did not grieve the
original decision until February 28, 2005.
The Level I Adjudicator rendered a
preliminary decision that the grievance
was not filed within the 30-day time limit
required by the RCMP Act, and denied
the grievance on that basis. The Grievor
requested a Level II review.
The only issue before the ERC was the
timeliness of the grievance.
ERC Findings
The record clearly supported
the Level I Adjudicator's finding that the
grievance was not filed in time. Although
attempts at informal resolution were
desirable, such attempts did not have the
effect of suspending or extending time
limits. In addition, simple requests to
reconsider the original decision did not have
the effect of recommencing the time limit in
which to grieve that decision.
In determining that there were no
circumstances to justify granting an
extension of the time to file the grievance,
the ERC considered a number of relevant
factors, including:
- despite numerous requests to do so, the
Grievor did not directly address the time
limit issue;
- the Grievor did not provide any
explanation for the delay in presenting his
grievance;
- there is nothing on the record to indicate
that the Force contributed to or caused
any of the delay;
- the Grievor's intention to present a
grievance did not arise until the end of
February 2005;
- the delay in presenting his grievance was
significant, particularly because it was
unexplained; and
- the Grievor did not request an extension
of time.
ERC Recommendation
The ERC recommends
that the Commissioner of the RCMP deny
the grievance because it was not presented
at Level I within the 30-day time limit, as
required by subsection 31(2)(a) of the RCMP
Act.
G-489
The Grievor missed more
than 32 consecutive
hours of work. He claimed that his absence
was due to an illness. A superior directed
a Health Services Officer (HSO) to provide
an opinion concerning the medical basis of
the Grievor's sick leave claim, in accordance
with Force policy. The Grievor refused to
consent to a release of his related medical
information to the HSO. The HSO stated
that the Grievor could not be made to agree
to the release of such information. Yet
he also explained that he could not verify
the legitimacy of the Grievor's sick leave
claim without that data. He recommended
that the Grievor's absence not be viewed
as sick leave. He further noted that the
RCMP recently discharged a member for
abandonment of post, in a similar case.
The Grievor alleged that the HSO harassed
him by saying conflicting things about the
necessity of consenting to a release of health data, and by implying that an administrative
discharge was justified. The Respondent,
who happened to be the HSO's line officer,
deemed the complaint unfounded without
launching an investigation. She felt that
the HSO had actively pursued the proper
enforcement of RCMP standards. The
Grievor filed a grievance. The Respondent
later made a remark that the Grievor
found troubling. The Level I Adjudicator
denied the grievance. He found that Force
Harassment Policy stated that the proper
enforcement of RCMP standards did not
amount to harassment. He held that the
HSO had properly enforced RCMP standards
by refusing to validate the Grievor's sick
leave status in the absence of substantiating
data.
ERC Findings
The ERC stated that the
only reason for opting not to have a full
harassment investigation would be if it was
clear that the allegations could not be found
to fall within the definition of harassment.
It cited Treasury Board Policy, and prior
findings, in support of that principle. It
found that this was not one of those rare
cases where it was simply inconceivable
that a full investigation would have led to
a conclusion that harassment occurred. It
observed that the Respondent never spoke
to the Grievor about the substance of his
allegations, or his affiliated concerns. It
accordingly found that it would have been
important to know more about the context
in which the alleged harassment occurred
before deciding that there was none.
The ERC further opined that when the
Respondent's relationship with the HSO was
combined with her unequivocal dismissal of
the complaint, and her troubling comments
about the Grievor, a reasonable person
might find that there was an appearance
that she was not fully objective.
ERC Recommendation
The ERC recommends
that the Commissioner of the RCMP allow
the grievance and he apologize to the
Grievor for the way in which his harassment
complaint was handled.
G-490
The Grievor, a regular
member posted at CPIC
was refused a daily Plain Clothes Allowance
(PCA), when he worked two days in a
month at a non-RCMP agency. As a CPIC
auditor, he had to wear civilian clothes while
performing CPIC functions at non-RCMP
agencies. The Grievor was refused a daily
PCA, as he had not worked five consecutive
days or more in a month. That criteria
had been established in a Treasury Board
Minute and was reflected in the relevant
RCMP Policy on Pay and Allowances (AM.II.4)
and AM Bulletin 2242 but not in the CPIC
Manual.
The Level I Adjudicator denied the grievance
on the merits. She took the position that
another Treasury Board Minute was the
authority for granting a PCA on a daily
basis, and included the requirement of five
consecutive days or longer. She found that
the RCMP could not overrule the provisions
of the Treasury Board Minute.
ERC Findings
Grievances that may be
referred to the ERC are those set out
in section 36 of the RCMP Regulations.
Subsections (b) to (e) of that section refer
to specific subjects that do not arise in
this case. To be referable to the ERC, this
grievance must fall within subsection (a) and
be related to "the Force's interpretation and application of government policies that
apply to government departments and that
have been made to apply to members".
The policies regarding the payment of a
daily PCA are only applicable to the RCMP
and not other government departments.
While the Grievor also suggested that
the refusal to pay a daily PCA criteria
may be discriminatory against members
performing their duties pursuant to the
CPIC Manual, the ERC did not view this as a
reference to the Canadian Charter of Rights
and Freedoms and therefore, referable.
Therefore, it was not referable to the ERC.
ERC Recommendation
The ERC is not
making a recommendation as it finds that
the grievance is not referable and therefore
it does not have the authority to review it.
G-491
In 1996, the Grievor was
charged with a number
of crimes. The Force suspended him and
initiated disciplinary proceedings, but
chose to reject the Commanding Officer's
recommendation to stop his pay and
allowances (SWOP). It fully reinstated the
Grievor in 1997 after the court acquitted
him, and a disciplinary board held that the
allegations against him were unfounded.
The Grievor later complained about the way
the Force treated him. He sought related
remedies including investigations, apologies
and compensation. Over the following five
years, his concerns became the subject of
different Level I and Level II grievances, as
well as mediation attempts. Some of the
issues were settled. Some were not.
In 2002, the Respondent rejected the
Grievor's remaining allegations and requests
for redress. She said that the Force acted
in good faith, that policy did not allow for
such remedies, and that they fell outside
of the RCMP's purview. The Grievor filed a
grievance, which led to preliminary decisions
at Levels I and II. During this period, more
issues were settled. A Level I Adjudicator
later dismissed what remained of the
grievance. She essentially reasoned that the
RCMP had acted in good faith, and that she
did not have the authority to order certain
requested remedies.
The Grievor filed a Level II grievance
against the Respondent's refusal to provide
apologies for the SWOP recommendation,
for the decision to initiate disciplinary
proceedings and for the conduct of the
internal investigation. He also grieved the
decision to deny damages for defamation.
ERC Findings
The ERC found that it had
legal authority to review the grievance
because the case concerned an issue relating
to the stoppage of pay and allowances
as well as arguments involving applicable
provisions of the Canadian Charter of
Rights and Freedoms. It also found that
the Grievor had standing. It observed
that the Respondent did not appear to
investigate the Grievor's allegations before
dismissing them. It also noted that the
Respondent failed to state the information
she considered, to explain the bases of
her findings, or to answer the Grievor's
specific claims. It therefore found that the
Respondent did not properly address the
Grievor's concerns. It further noted that
the record was unclear on other avenues of
recourse.
ERC Recommendations
The ERC
recommends to the Commissioner of
the RCMP that he allow the grievance
and order a review into the Grievor's
allegations, if such a review has not yet
been conducted. It further recommends
to the Commissioner that he identify
whether there presently exists a mechanism
within the RCMP whereby members can
make complaints about treatment during
internal investigations, whether conducted
by the RCMP or by a separate police force
as an agent of the Force, and have these
complaints thoroughly dealt with. If there
is such a mechanism, then this information
should be made readily available to all
members. If there is no mechanism, it
recommends that the Commissioner order
that one be developed.
G-492
The Grievor learned
that her son would be
born with a medical condition. He would
require an immediate and ongoing type
of care which was offered 230 kilometres
from her posting. Her superior told her
that he genuinely believed that the Force
could reimburse the travel costs that she
incurred while driving her son to and from
his out-of-town medical appointments.
After the Grievor gave birth, she drove her
son to and from 12 appointments, over five
months. She filed expense claims totalling
$3,132. Her superior appreciated the fact
that she limited her claims to certain costs.
He approved her claims. The Force later
paid them. The Grievor soon learned that
an audit showed that she was not entitled
to the $3,132, that the Respondent felt he
had no choice but to recover it as a debt
owing to the Crown, and that it would be
recovered shortly.
The Grievor filed a grievance. A Level I
Adjudicator denied it. He held that the
Grievor was not entitled to the $3,132
payment under the Force policies upon
which she relied. He stated that those
policies applied only to members at
recognized isolated posts, or to members
who were escorted by dependents on
medical-related travel, and that the Grievor
was neither. He noted that a government
directive and a Force policy indicated that
travel costs were not necessarily unpayable
just because they arose from mistakes.
However, he opined that the Force had
to recover the Grievor's expenses in view
of a provision of a government travel
directive which required the retrieval of
overpayments from "travellers". The
Grievor filed a Level II grievance.
ERC Findings
The ERC confirmed that
no authority entitled the Grievor to the
$3,132 she received. However, it disagreed
that the Respondent had no option but to
recover that sum as a debt owing to the
Crown. It observed that the policy provision
under which the overpayment recovery
was ordered did not actually apply to the
Grievor. This was so because she did not
meet the policy's definition of "traveller".
It also noted that although other Force
authorities said that overpayments were to
be recouped, a debt forgiveness provision
of a federal Act permitted the government
to waive overpayment-related debt in
certain situations. It found that the record
suggested that the Respondent would
have looked into the possibility of debt
forgiveness in the Grievor's circumstances,
if he knew the option existed. It also found
that there were compelling reasons for
permitting the Grievor to keep her payment.
It further opined that there was no authority
at the time for the Grievor to successfully
claim similar expenses in the future.
ERC Recommendations
The ERC
recommends that the Commissioner
of the RCMP allow this grievance, in
part. In so doing, it recommends that he
direct an appropriate official at National
Compensation Services to inquire into
whether the Grievor's debt may be forgiven
under a statutory debt forgiveness authority.
If the Commissioner opts to deny the
grievance, then the ERC recommends that
he direct the Respondent to recover the
Grievor's debt in an authorized manner
which does not impose financial hardship.
Either way, it recommends that he affirm
there was no authority for the Grievor to
successfully claim ongoing similar expenses.
The ERC commented that the Grievor may
wish to discuss costs with her insurer. It
also remarked that she might inquire into
whether she may receive a grant from the
RCMP Benefit Trust Fund.
Update
The Commissioner of the RCMP has provided his decision in the
following matters, summarized in previous issues of the
Communiqué:
G-383 (summarized in the
July-September 2006 Communiqué) The Grievor was transferred
to a post that was less than 40 km from his
residence and was required to relocate. He
believed that all the Integrated Relocation
Policy (IRP) provisions and the transfer
allowance (TA) entitlement would be
applicable. The Grievor was enrolled in
the IRP during informal discussions but his
entitlement to a TA remained the issue of
the grievance. While the Grievor relied on
the exact wording of a TBM to support his
entitlement, the Respondent denied it. The
ERC originally found that the Grievor was
entitled to a TA and recommended that the
grievance be allowed. In an addendum, the
ERC modified its original recommendation
and denied the grievance.
Commissioner's Decision
The Commissioner of the RCMP decision, as summarized by his office, is
as follows:
The Commissioner denied the grievance, as
recommended by the Committee.
The Commissioner found the IRP to be
categorical and without exception: a transfer
allowance will not be paid for a relocation
under 40 km, even if the relocation is
authorized on the basis of documented
operational need . The Commissioner agreed
in this respect with the findings reached by
then Acting Commissioner W. Sweeney in
a Level II grievance decision on case G-411
(ERC 3300-05-006), a matter involving a
similar issue. The Commissioner also agreed
with the concerns expressed by the Acting
Commissioner in G-411 over the use of
Treasury Board Minutes in the consideration
of a grievance. These concerns pertain to the
privileged nature of Treasury Board Minutes
as Cabinet Confidences pursuant to the
Canada Evidence Act.
G-390 (summarized in the
July-September 2006 Communiqué) The Grievor was provided
meals and accommodation at the G8
summit. Travel claims were submitted
claiming that the entitlements were
substandard. The Respondent rejected the
claims and argued that the entitlements
were justifiable under portions of the TB
and RCMP travel policies. The Grievor asked
for disclosure of health and safety related
reports. The Respondent asked for a Level I
ruling on disclosure. The Level I Adjudicator
denied the grievance and relied on prior
ERC recommendations. The ERC found that
the Level I Adjudicator erred in making
rulings on timeliness, disclosure, jurisdiction
and mootness. The ERC recommended
that the grievance be allowed and that
the Commissioner order that the case be
referred back to Level I.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
The Commissioner concluded that the Level
I Adjudicator erred when he failed to grant
the Grievor's request for the disclosure of
additional information. As a result, the
Commissioner directed that the case be
returned to Level I so that the grievance
process could resume. The Commissioner
determined that there should be a
reconsideration and redetermination of the
matter by a Level I Adjudicator once the
record was made complete, since relevant
information that was not disclosed could
have changed the outcome of the grievance
process.
The Commissioner agreed with the
Committee that the Level I Adjudicator
breached the duty to act fairly, as well as
the RCMP's Grievance Policy, by making
rulings on standing, time limits, mootness,
and the merits of the grievance, without
first advising the parties of his intention
to consider these issues and giving them
the chance to make representations. This also warranted returning the file to
Level I, so that the parties could be given
the opportunity to make submissions on
these issues. The matter would then be
reconsidered by a Level I Adjudicator with
the benefit of this information.
G-391 (summarized in the
July-September 2006
Communiqué) The Grievor was provided
meals and accommodation at the G8
summit. Travel claims were submitted
claiming that the entitlements were
substandard and did not accommodate
members working night shifts. The
Respondent rejected the claims and argued
that the entitlements were justifiable
under portions of the TB and RCMP travel
policies. The Level I Adjudicator denied
the grievances. He relied on prior ERC
recommendations. The ERC found that
the Level I Adjudicator erred in making
rulings on timeliness. It also found that
the complaint about work shifts and
schedules is not referable to the ERC. The
ERC recommended that the grievance be
allowed, and that it be acknowledged that
the Force did not provide the Grievor with
appropriate accommodation and meals.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
The Commissioner denied the grievance.
Timeliness of Grievance Presentation
The Commissioner agreed with the
Committee that the Level I Adjudicator
did not act fairly by reaching a decision on the matter of timeliness of the grievance
without first allowing the parties to make
submissions on this issue. The Commissioner
also agreed with the Committee that the
grievance was presented within the time
limit.
Accommodation and Meals
The Commissioner noted that the
accommodation and meals supplied
during the G8 Summit were designed to
meet a specific operational need, while
respecting the limited available land and the
environment. Although it is possible that
when performing their tasks some members,
including the Grievor, were inconvenienced,
the Grievor failed to establish that the
accommodation and meal services he was
provided failed to meet the applicable
principles.
The Commissioner noted that grievors have
the onus of establishing on a balance of
probabilities that their grievance is wellfounded.
The Grievor did not provide basis
to support his claim and therefore failed to
meet his burden of persuasion. Accordingly,
this part of his grievance was denied.
Overtime
The Commissioner noted that it was unclear
from the record whether the Grievor was
claiming overtime because he did not have
enough rest, or because he worked in excess
of scheduled hours.
The Commissioner found that, in accordance
with RCMP policy and the G8 Joining
Instructions, the Grievor could have been
compensated if his overtime claim reflected
work performed in excess of scheduled
hours. However, without copies of his
overtime claim and home unit shift schedule
in the grievance record, it was not possible
to assess the Grievor's claim. The record
showed that the Office for the Coordination
of Grievances (OCG) sent two emails to the
Grievor, requesting that he fax his overtime
and expense claims. The absence of these
documents in the record, notwithstanding
the OCG's emails, suggested that the
Grievor did not provide them to the OCG
as requested. Considering the lack of
information, the Commissioner found that
the Grievor had failed to establish his claim
for overtime. This part of his grievance was
therefore denied as well.
G-395 (summarized in the
October-December 2006 Communiqué) The Grievor was working
at the G8 Summit. The Force rejected
his overtime and travel claim. He also
requested reimbursement for equipment
that he had purchased and requested
compensation related to substandard
services. The Respondent rejected the claims
and argued that the entitlements were
justifiable under portions of the TB and
RCMP travel policies. The Level I Adjudicator
denied the grievances on timeliness. He
relied on prior ERC recommendations. The
ERC found that the Level I Adjudicator
erred in making rulings on timeliness. The
ERC recommended that the grievance be
allowed as it related to time worked while
on Standby Level I and that the matter be
referred to the authority to determine the
amount owing. The ERC also recommended
that it be acknowledged that the Force did
not provide the Grievor with appropriate meal services in accordance with applicable
policies and that he be reimbursed for actual
and reasonable expenses.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
The Commissioner allowed the grievance in
part.
Timeliness of Grievance Presentation
Acting Commissioner W. Sweeney agreed with the
Committee's findings and, as recommended by the Committee,
denied the grievance.
The Commissioner agreed with the
Committee that the Level I Adjudicator
did not act fairly by reaching a decision on
the matter of timeliness of the grievance
without first allowing the parties to make
submissions on this issue. The Commissioner
also agreed with the Committee that the
grievance was presented within the time
limit.
Accommodation and Meals
The Commissioner noted that the
accommodation and meals supplied
during the G8 Summit were designed to
meet a specific operational need, while
respecting the limited available land and
the environment. Although it is possible
that when performing their security tasks
some members, including the Grievor,
were inconvenienced, the Grievor failed to
establish that the accommodation and meal
services he was provided failed to meet the
principles of the TBTD. Accordingly, this part
of the grievance was denied.
Overtime
The Grievor's overtime claim had two
components, only one of which was allowed.
The Commissioner agreed with the
Committee that the Grievor should have
been paid for the hours he worked
performing policing duties in excess of his
scheduled 12-hours shifts. Accordingly, he
allowed the grievance in part with respect
to this claim, and directed that the matter
be referred to the appropriate authority in
order to determine the amount owed to the
Grievor.
However, with respect to the Grievor's
claim that he should be paid as if on
continuous duty, because his free time was
not unfettered and he could not leave the
worksite, the Commissioner concurred with
the Committee's conclusions and denied this
claim.
Equipment and Clothing
The Commissioner agreed with the
Committee's findings and denied this claim.
G-398 (summarized in the
October-December 2006 Communiqué) The Grievor volunteered to
work at the G8 Summit. He believed that
he was entitled to overtime, because he
had been given insufficient notice of a shift
rescheduling. The Respondent argued that
notice provisions did not apply to changes
in the starting time of a shift following
redeployment. A GAB report stated that
the member should be compensated. The Level I Adjudicator found that the Grievor
lacked standing. The ERC found that the
Grievor had standing and recommended
that the grievance be allowed and that the
file be returned to the proper authority for
consideration of the overtime claim.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
The Commissioner allowed the grievance.
The Commissioner agreed with the
Committee that the Level I Adjudicator
failed to act fairly when he did not provide
the parties with the opportunity to present
submissions, prior to reaching a decision on
the issue of standing. The Commissioner also
agreed that the Level I Adjudicator erred
when he ruled that the Grievor did not have
standing.
As for the merits of the grievance, the
Commissioner agreed with the Committee
that the Grievor was entitled to a 72-hour
notice of the rescheduling of his shift,
pursuant to a G8 Divisional Document
that set out specific overtime rules for
those deployed to the G8 Summit. As
recommended by the Committee, the
Commissioner directed the Respondent to
consider the Grievor's overtime claim, once
provided with the necessary information.
G-415 (summarized in the
April-
June 2007 Communiqué) The Grievor was discharged under the
WFAD, which also allowed members in the
Grievor's circumstances some relocation
expenses, but no reimbursement of home equity loss. The Grievor claimed that, as she
qualified for relocation under the terms of
the WFAD, all of the provisions of the RD
should apply to her also. The ERC found
that the Grievor was not entitled to benefits
under the RD and recommended that the
grievance be denied.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
Acting Commissioner William Sweeney
agreed with the Committee's findings and
recommendations and denied the grievance.
Acting Commissioner Sweeney also directed
that a policy review of the WFAD be
performed. The review should consider how
the language of the WFAD may be revised
and clarified, with an aim of making the
policy less complicated.
G-423 (summarized in the
July-September 2007 Communiqué) The Grievor was on modified,
largely administrative duties for a work
related disability. The HSO assigned a
Medical Profile, with lower ratings. The
CM then had to identify employment
opportunities. The CM noted that the
Grievor's first preference was to remain
in his actual position and location. The
supervisor rejected the notion that the
Grievor could keep his current position with
modified duties. The ERC found that the
Grievor had standing. It also found that the
Level I Adjudicator erred when he accepted
the Respondent's argument that the
Grievor's position could not be rebundled
into one without operational duties. The
ERC recommended that the grievance be
allowed.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
The Commissioner denied the grievance.
He noted that the physical standards of
the Grievor's position were adopted to
ensure that members can work safely
and efficiently. The RCMP adopted these
standards in an honest and good faith belief
that the ability to perform these tasks is
necessary. To continue accommodating the
Grievor in this position, as per the Grievor's
last medical profile, would require further
modification of the key duty requirements
of the position. In the Commissioner's view,
the Force would experience undue hardship
as a result. Accordingly, the Commissioner
could not support the Grievor's request to be
accommodated in that position.
G-425 (summarized in the
October-December 2007 Communiqué) The Grievor drove his own
car to attend a private course on his day off.
He later submitted a mileage expense claim,
but the Respondent refused to approve it.
The Level I Adjudicator denied the grievance
and also ordered the recovery of all courserelated
funds spent on the Grievor's course.
The ERC found that the applicable TB and
RCMP travel policies require members to
obtain written pre-authorization before
they traveled, and there was no evidence
that the Grievor had done this. The ERC
recommended that the grievance be denied
and that the order for recovery of funds be
rescinded.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
The Commissioner denied the grievance. The
Commissioner agreed with the ERC that the
Grievor was not entitled to reimbursement
for private motor vehicle mileage expenses
incurred while voluntarily attending a non-
RCMP training course, as he did not obtain
the Respondent's authorization for these
expenses. The Commissioner also agreed
with the ERC that the Level I Adjudicator
overstepped his authority and was in error
when he ordered the recovery of funds.
G-456 (summarized in the
January-March 2009 Communiqué) The Grievor filed a grievance
challenging the RCMP's failure to inform
her that her counsel had left one year
earlier, during her appeal of a discharge and
demotion board decision. The ERC found
that it does not have jurisdiction over the
grievance and therefore did not make any
recommendations.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
[TRANSLATION]
The Commissioner agrees with the External
Review Committee that this grievance does
not qualify as a type of grievance that can
be referred to the Committee for review.
The Commissioner personally acts as a
Level II Adjudicator only for grievances that
must first be reviewed by the Committee. As
a result, the Commissioner is referring this
file to the Level II Adjudicator appointed to
rule on the grievance.
G-481 (summarized in the
October-December 2009 Communiqué) The Grievor grieved the
Respondent's decision to order the stoppage
of his pay and allowances (SPA). The ERC
found that all of the criteria for an SPA
order had been met. The Respondent's
decision respected the principle that, in
extreme circumstances, an SPA order is a
preventive measure designed to protect
the integrity of the Force. The ERC
recommended that the grievance be denied.
Commissioner's Decision
The Commissioner
of the RCMP decision, as summarized by his
office, is as follows:
The Commissioner agreed with the ERC's
findings and recommendations and denied
the grievance.