Grievance Case Summary - G-270

The Grievor submitted a harassment complaint against the team leader of the Emergency Response Team (ERT) in his Division as well as against the two officers who had been the Officer in Charge of the ERT (OIC) during the time that the Grievor was a sniper with the ERT. The Grievor had been a member of the ERT from 1989 to 1998. In addition to his responsibilities with the ERT, the Grievor was also assigned from time to time to undercover operations. As a result, there were times when he was not available for ERT call-outs or training sessions. In 1994, a new team leader was elected by the 15 members of the ERT. Shortly thereafter, he approached the Grievor and indicated to him that his absences were a matter of concern. Accordingly, he told him that he would not be permitted to remain on the team unless he agreed to stop accepting undercover assignments. In September 1997, the team leader indicated to the Grievor that he would be replaced as a sniper and reassigned to the communications operator's position the following April. Those plans changed in early January 1998 when the team leader learned that the Grievor had seriously injured himself during a training exercise and therefore ordered by his physician to take time off from work. The team leader called the Grievor at home and told him that his reassignment would come into effect immediately. The OIC had discussions in person and by e-mail with the Grievor about his reassignment. The Grievor indicated that he would be willing to agree to becoming both a communications operator and a negotiator if permitted to also serve as a back-up sniper and allowed to participate in training exercises for snipers. The OIC replied that he would not agree to these conditions and asked the Grievor to confirm whether he would still agree, under those circumstances, to become a communications operator and negotiator. Receiving no further communication from the Grievor about this matter, the OIC did not make any arrangements to enrol him in a negotiator's course as had been planned. In his complaint, the Grievor maintained that the OIC had failed to carry through with a commitment to train him to become a negotiator. The complaint was investigated by the Force. Based on interviews with 12 witnesses, the investigation found that there was no basis to the complaint and the Commanding Officer of the Division therefore rejected the complaint.

That finding was grieved. A three-member Grievance Advisory Board (GAB) submitted a report recommending that the investigation be reopened and that additional witnesses be interviewed. Accordingly, the Commanding Officer ordered a review of the investigation which led to 15 more witnesses being interviewed. Based on that review, the Commanding Officer once again concluded that the Grievor had not been harassed. The grievance was then returned to the GAB for further consideration. In its second report, the GAB identified examples of process errors but the only example of harassment that it found consisted of the team leader misleading the Grievor by telling him that the Health Services Unit had concerns about his physical condition.

The Level I adjudicator decided to uphold the grievance because he stated that he agreed with the GAB's finding that the investigation contained errors. Accordingly, he directed the Commanding Officer to review the complaint based on the GAB's report. Two months later, the Commanding Officer once again concluded that there was no basis to the Grievor's complaint. It was only then that the grievance was submitted at Level II. The Grievor's explanation for the delay was that he had earlier believed that he had been successful in his grievance.

On July 29, 2002, the ERC issued its findings and recommendations. In its findings, the Committee pointed out that the RCMP Act provides the Commissioner with the authority to extend a grievance deadline if "satisfied that the circumstances justify an extension". The Committee recommended that this be done in this instance. The Grievor can hardly be blamed for having believed that he had persuaded the Level I adjudicator that he had been the victim of harassment, given that the Level I decision read "grievance is upheld". It made no sense for the Level I adjudicator to have returned the file to the author of the decision that was the subject of the grievance given that the Level I adjudicator had all of the information needed in order to determine whether the Grievor had been harassed.

On the merits, the Committee was of the view that the decisions which were taken could be considered legitimate exercises of managerial discretion designed to ensure that the ERT could operate as effectively as possible. While many ERT members were under the impression that no member could be removed from the ERT without a team vote, such a requirement was merely a convention and not a formal requirement established by the Force. Therefore, the failure to abide by that convention would not amount to an abuse of authority on the part of the team leader and the OIC if the Grievor's reassignment were to be regarded as de facto removal from the ERT. The OIC did not act in bad faith in not following through on an undertaking to train the Grievor to become a negotiator. The OIC honestly believed that the Grievor had yet to confirm that he was willing to remain on the ERT as a communications operator and negotiator and accept the decision that he would no longer act as a sniper and train with the snipers.

Accordingly, the Committee recommended that the grievance be dismissed.

On August 29, 2002, the Commissioner rendered his decision, as follows:

The Commissioner accepted the recommendations of the Committee and dismissed the grievance.