Articles of Interest - Discussion concerning committee jurisdiction review matters
A discussion concerning the Committee's jurisdiction to review matters
by Martin Griffin, Counsel
Subsection 33 (1) of the RCMP Act (the "Act") directs the Commissioner to refer certain level II grievances to the Committee. The types of grievances that are to be referred are set out in subsections 36 (a) to (e) of the RCMP Regulations (the "Regulations"). As a result, subsection 36 of the Regulations is the gateway through which a grievance must pass before the Committee may be said to have jurisdiction to review it. Occasionally, grievances referred to the Committee have been sent back to the Force because they were not of the type described in section 36 of the Regulations.
The issue of whether the subject matter of a grievance meets the requirements set out in the Regulations is sometimes complex. This article will draw attention to the criteria which govern referability, and describe some historical efforts which have been made to provide more clarity to the issue. It will also discuss what grievors can do when they disagree with a determination made by the Force that a grievance is not referable to the Committee.
The Section 36 Gateway
When a grievance is referred to the Committee at level II, its subject matter is reviewed in order to ascertain, at the outset, whether it meets the requirements of section 36 of the Regulations. Section 36 states:
The question of whether a grievance relates to one of the categories in subsections (b) through (e) is usually straightforward. However, it can be more difficult to determine if a grievance falls under subsection (a).
The Test for Referability Under Subsection (a)
In G-241, the Committee described the three part test, of which all conditions must be met, which determines whether a grievance falls under subsection (a):
- the matter which the grievance raises must pertain to the interpretation of a government policy;
- the policy must apply to government departments;
- the policy must apply to members of the RCMP.
When matters are referred under subsection (a), the government policies central to the grievance are sometimes only applicable to RCMP members or, conversely, applicable to the government in general with the exception of members of the RCMP. Where either one of these situations occur, the Committee cannot review the matter for the purpose of providing findings and recommendations.
For example, certain grievances pertain to work force adjustment situations, which can occur when detachments are closed and members are affected as a result. The Force has its own policy governing work force adjustments and there also exists a similar policy issued by Treasury Board entitled Work Force Adjustment Directive ("WFAD"). The Committee concluded, in G-399 and G-400, that it could not review grievances pertaining to work force adjustment decisions as these did not meet the subsection (a) criteria. The Force policy which governed the situation applied only to members of the Force, and could not be said to be government wide. As for the WFAD, it did not apply to the RCMP.
Similarly, the Committee has recently examined whether certain grievances involving pension matters subject to the provisions of the Royal Canadian Mounted Police Superannuation Act and the Royal Canadian Mounted Police Superannuation Regulations could be referred to it under subsection (a). In G-370, the Force's handling of a pension "buy-back" situation was being grieved, whereas in G-381, the grievance pertained to a decision that the member's acting pay not be included in the calculation of his pensionable service. In both cases, the Committee observed that the grievances involved the application of the provisions of those two instruments, which applied only to members of the RCMP and which could not be said to be government wide. As a result, the Committee concluded that it was unable to review the grievances.
Further examples show situations in which the policies at issue were not government wide in their application, and where the Committee decided that it could not provide findings and recommendations on the matter under subsection (a). In G-344, the subject matter of the grievance was the Appropriate Officer's decision to suspend a member with pay, a matter governed by the Act and internal Force policy. In G-243, a member grieved the way in which the Force had administered the forfeiture of his pay following disciplinary action. The internal Force policy governing the administration of financial penalties was not government-wide.
Because it is sometimes difficult to identify which policy applies to a situation, and to whom the policy applies, deciding whether the subject matter of a grievance falls under subsection 36(a) can be a challenging exercise. Over the years, stakeholders in the grievance system have recognized the complexity of subsection 36(a) and have explored ways to clarify which grievances could be referred under it. In 1989, René Marin, the first Chair of the Committee, and Commissioner Inkster developed a list of 16 specific matters to be included within the meaning of subsection 36(a). This list, which is often referred to as "the list of 16", is not exhaustive, and it should be remembered that some of the items it contained are no longer grievable under Part III of the Act because alternate forms of redress were created (e.g. classification of civilian member positions).
In October 1999, a Working Group, composed of one representative each from the Committee, Divisional Staff Relations Program and the RCMP's Policy Development Branch, prepared a report for the Commissioner's consideration. The report recommended that subsection 36(a) be replaced with a more descriptive list of grievance categories based on specific subject matters. In the July-September 2001 issue of the Communiqué , the former Chair of the Committee, Philippe Rabot, stated that the confusion that exists as to when grievances can be referred to the Committee could be resolved by implementing the report's recommendation that s. 36(a) be replaced with a more descriptive list of grievance categories.
Notwithstanding these developments, categories set out in subsections (a) to (e) of section 36 of the Regulations remain the same today. As a result, the three part test developed around subsection (a) remains in place, and it must be satisfied if the Committee is to review a grievance.
Who decides what is referable?
The procedure governing grievances is set out in A.M. Manual chapter II.38 ("AM II.38"). The Commissioner's authority to refer eligible grievances to the Committee has been delegated to the Member In Charge ("I/C") of each Office for the Coordination of Grievances ("OCG") (A.M. II.38.D.9). In deciding whether to refer a level II grievance to the Committee, the OCG Member I/C must consider subsections (a) to (e) of the RCMP Regulations.
What can a member do if the OCG does not refer the grievance to the Committee?
There might be circumstances in which a grievor disagrees with an OCG determination that a matter is not referable to the Committee. In such a case, AM II.38.I.9.d specifies that the grievor's disagreement be placed in a submission with a request that the matter be addressed by the level II decision-maker. Therefore, if grievors believe that the subject matter of their grievance is one of those that should be referred to the Committee, they are encouraged to provide to the level II decision maker written arguments on why it is that either one of subsections (a) to (e) of section 36 of the Regulations applies.
The issue of whether the subject matter of a grievance meets the requirements set out in subsection 36(a) of the Regulations can be complex. The three part test for determining if a matter should be referred to the Committee under that subsection continues to apply. That test is a key factor for OCG staff who are determining whether a grievance should be referred to the Committee, or Grievors who disagree with an OCG decision to not refer.
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