Grievance Case Summary - G-204

This grievance concerned the retroactive payment of the bilingualism bonus. In consequence of the Federal Court decision in the Gingras case, the RCMP undertook to pay members who had been eligible for the bonus in the past, but who had not been paid. In the present matter, the RCMP informed a bilingual member that he had been denied payment of the bilingualism bonus for a certain period of time. During this period the member had been posted at a detachment located in a unilingual region for which no unit bilingual complement (UBC) had been identified. The RCMP's rationale for denying the bonus to the member was that Treasury Board had directed that the bilingualism bonus be paid only to members who were in a UBC unit.

The member grieved the RCMP's decision. The member argued that he had provided French language services at the detachment and he also noted that he had been bound by an administrative arrangement to provide French language services at a neighbouring detachment where a UBC had been identified, but which had no bilingual member posted at the detachment. Further, the member pointed out that he had been identified as a bilingual resource in the divisional administration manual supplements.

A Grievance Advisory Board (GAB) recommended that the grievance be upheld, but only for the period during which the member had provided bilingual services to a neighbouring UBC detachment. The GAB found that, due to this administrative arrangement, the member had become de facto part of a UBC detachment during this period.

The Level I adjudicator agreed that, for the reasons given by the GAB, the member had been in a position very much akin to being in a UBC while he had provided French-language services at the neighbouring detachment. The adjudicator upheld the grievance. However, due to the Treasury Board criteria, the adjudicator stated that the remedy he could provide was limited to directing that the Official Languages Branch approach Treasury Board with the circumstances of the case so that Treasury Board could be determine whether the member qualified for the bonus.

The Officer-in-charge (OIC) of Official Languages Branch denied implementation of the remedy directed by the Level I adjudicator. He noted that the RCMP had already approached Treasury Board on related matters and had received the firm response that there could be no departure from the established eligibility rules. In response to the decision of the OIC Official Languages, the member submitted the grievance to Level II, arguing that he had not received the remedy he had been awarded at Level I.

The grievance was referred to the Committee. After receiving the grievance, the Committee invited the parties to make additional submissions with regard to a letter from the Treasury Board Deputy Secretary, Official Languages and Employment Equity Branch in which eligibility criteria with respect to retroactive payment of bonus were supposedly set out. The Committee enquired whether the letter was or was based upon an instrument of Treasury Board formally amending or supplementing, for the RCMP, published Treasury Board policy applicable to the public service with respect to the bilingualism bonus. The Appropriate Officer provided submissions stating that the letter in question neither was, nor was based upon, such an instrument. He stated that the letter was rather a reiteration and clarification of certain decisions taken by staff at the RCMP and at Treasury Board.

On January 13, 1998, the Committee issued its findings and recommendations. With respect to the refusal, by the OIC Official Languages, to implement the Level I adjudication, the Committee referred to its Findings and Recommendations in G-90. In that case the Committee had indicated that, in exceptional circumstances where, in the RCMP's view, an adjudication was clearly incorrect and could threaten the good administration of the RCMP, the RCMP could refuse to implement such a decision. In such a case, nevertheless, the RCMP was required to forward the grievance to Level II for final adjudication. The Committee was willing to apply the procedure in G-90 to the present case and to treat the case as properly referred for full review at Level II of the process.

On the merits, the Committee found that, based on record and submissions before it, the Committee had nothing to indicate that the criteria set out in the Treasury Board Deputy Secretary's letter were, or were based upon, actual Treasury Board policy. Rather, the letter from the Deputy Secretary, and another related letter from another public servant, appeared to be letters from staff members at Treasury Board Secretariat. The Committee noted that a Deputy Secretary of Treasury Board is not a member of Treasury Board itself and that, whatever the extent of authority of a Treasury Board Deputy Secretary may be, it does not include abrogating or amending a Treasury Board policy by means only of the Deputy Secretary's own letter.

The Committee reviewed the applicable policy actually adopted by Treasury Board. An important principle became apparent. Treasury Board had provided that it was to be individual federal institutions, and not Treasury Board Secretariat, which would identify the language requirements of each institution's positions. The Committee found that the RCMP had failed to follow the Treasury Board policy with regard to the identification of positions. Eligibility for the bonus was defined according to whether members occupied bilingual positions. For the purposes of payment under the bilingualism bonus policy in UBC areas, where individual positions were not previously linguistically identified, retrospective consideration was to have been given as to which positions should be identified as having been bilingual positions. In accordance with Treasury Board policy, the identification of bilingual positions was to be performed by the RCMP. However, instead of turning its own mind to what positions were, in effect, its bilingual positions during its relevant period, the RCMP had seen itself as having been constrained by the criteria from Treasury Board Secretariat which purported to establish which position-holders should be paid the bonus.

The Committee recommended that the grievance be upheld. The Committee recommended that the RCMP exercise its own best judgment --according to its own knowledge of the manner in which the RCMP organized its workplace--as to which members should be identified as having occupied bilingual positions. Thus, in the present case, the question of the member's eligibility for the bilingualism bonus should be remitted to the appropriate administrative decision-centre for redetermination in accordance to the RCMP's best judgment.

The Committee acknowledged that, despite its analysis, it was possible that the Commissioner might disagree with the Committee's approach and find that the RCMP did not consider itself constrained by the criteria set out by staff at Treasury Board Secretariat. Such a finding would be difficult to support. Nevertheless, even if it were made, such a finding would not affect the final conclusion. If it were found that the RCMP adopted the criteria as its own view of how to determine which were its bilingual positions, it further could and should be found the RCMP itself failed to take into account its own policies and practices. The Committee noted that the grievance would be upheld on essentially the same basis as described previously.

In a further alternative, the Committee recommended that if the Commissioner were to find that the RCMP was compelled to apply the criteria set out by the Treasury Board Deputy Secretary, it nevertheless could and should be found that the RCMP's interpretation of these criteria was incorrect on at least one ground: it could and should be found that, contrary to the RCMP's determination, a member who is tied to a UBC through an administrative arrangement, is, in effect, part of the UBC for the purpose of eligibility under the criteria set out by the Treasury Board Deputy Secretary.

On June 17, 1998, the Commissioner rendered his decision. The Commissioner agreed with the Committee. He upheld the grievance and ordered that the member's eligibility for payment of the bilingualism bonus be re-determined in accordance with the analysis provided by the Committee.