Grievance Case Summary - G-207

This grievance concerns the bilingualism bonus. A member had second language evaluation results at the "B" level or higher in all categories. The member was retested and received results lower than the "B" level in one category. Some time later, the member was again retested and reestablished at least a "B" level in all categories. In 1995, the member was awarded retroactive payment of the bonus as part of the Force-wide program to pay the bonus in consequence of the Federal Court of Appeal's decision in R. v. Gingras, [1994] 2 F.C. 734. However, the bonus was denied to the member for the period in which his SLE results in one category were less than the "B" level. The member grieved, arguing that policy within his division had prevented him from being retested earlier. The Force responded by stating that Treasury Board requirements prevented payment of the bonus for periods in which an employee's SLE results were not at least at the "B" Level.

As part of his arguments, the member submitted a Grievance Advisory Board (GAB) report which had been issued for a grievance submitted by another member in essentially the same circumstances. In this other case, the GAB had found that RCMP Bulletin AM-2077 had provided some flexibility for the payment of the bonus within the Force, including an ability to extend the validity period of SLE results by creating a presumption of competence for periods when testing was not available, on the condition that a member's subsequent SLE results were at least at the "B" level. The GAB had determined that this Bulletin indicated that the Force had some discretion in determining eligibility; it recommended that the bonus be paid. This recommended result in the similar grievance was subsequently upheld at Level I. The member in the present case argued that the same result should ensue in his grievance.

The GAB and the Level I adjudicator in the present case found that the grievance should be upheld for essentially the same reasons as had been provided in the adjudication in the other grievance. However, the Appropriate Officer refused to provide payment to the member, stating that he did not have the discretion to ignore Treasury Board requirements and to pay the member the bonus for the period in which his SLE results were not at least at the "B" level. The member submitted the matter to Level II.

The grievance was referred to the Committee. On April 15, 1998, the ERC issued its findings and recommendations. With respect to the refusal by the Appropriate Officer 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 also noted that, prior to the Commissioner's decision in G-90, he had received a legal opinion suggesting that the procedure advocated by the Committee in G-90 might be unsafe. The Committee addressed this opinion and indicated that it had some doubt whether the opinion was fully reflective of the grievance system established pursuant to Part III of the Royal Canadian Mounted Police Act. The Committee also noted that the Commissioner in G-90 had not followed the opinion. Notwithstanding the opinion, the Committee continued to endorse the procedure applied in G-90 and it found that the grievance was properly referred for full review on the merits at Level II.

With respect to the merits, the Committee found that a number of provisions of the Treasury Board bilingualism bonus policy apply with respect to employees who do not maintain their language profiles. For example, suspension of payment of the bonus comes into effect two months after the date of notice given by the employer in consequence of an unsuccessful test. The RCMP had not provided payment with respect to this period. The Committee found that the grievance could and should be upheld, pursuant to Treasury Board policy, with respect to at least this two-month period.

The next question was that of reinstatement of the bonus. Pursuant to the Treasury Board policy, an employee may seek to become re-eligible for the bonus. An SLE for the purpose of regaining the bilingualism bonus may be taken one year after an unsuccessful SLE. In the Committee's view, the member ought not to have been disadvantaged by the lack of availability of testing in his division. An employee is to be given the opportunity, and even encouragement, to regain his or her language qualifications after having lost them. Furthermore, it is an entirely consistent interpretation of Treasury Board policy to create presumptions of validity where testing was not available. Such an interpretation is effectively set out in Bulletin AM-2077. In the Committee's view, it was correct to draw an analogy from Bulletin AM-2077. The Committee also noted that, even if the Commissioner would find that Bulletin AM-2077 could not be invoked directly in support of the grievance, the flexibility available to the Force was not limited to the circumstances set out in this Bulletin.

The Committee recommended that the grievance be upheld and that the member receive payment of the bilingualism bonus for the two-month period after his unsuccessful test and for the period beginning after the expiry of the one-year waiting period for a new test.

On July 21, 1998, the Commissioner rendered his decision. The Commissioner accepted the recommendations of the Committee.