Grievance Case Summary - G-324

During the summer of 2000, the Grievor agreed to a request to become security co-ordinator for a visit to Toronto by Pope John Paul II that was planned for July 2002. The Grievor's appointment was approved by the Commanding Officer who was aware that the Grievor would be reaching the mandatory retirement age of 60 in November 2001 but considered that it might be possible to either obtain approval for an extension of the Grievor's term of service or to rehire him on a contractual basis after he had retired so that he would be available until the end of the Papal Visit. However, the Commanding Officer was replaced shortly thereafter and the new Commanding Officer decided in May 2001 to replace the Grievor with another member. The reasons that he provided to the Grievor for that decision were: (1) it was in the best interest of the Division to assign an officer who would gain experience that could be used for future events; (2) he wanted to avoid incurring the costs associated with retaining the Grievor beyond his scheduled retirement date; (3) he had concerns about the Grievor's health because he had recently been diagnosed with prostate cancer and been away from work for several months while he underwent treatment. Although the Commanding Officer had initially intended to appoint the Grievor's replacement without competition, the Executive Officer Development and Resourcing Section directed that a competition be held instead, which was opened to officers at both the inspector and superintendent ranks. The Grievor applied in the competition but his candidacy was not given any consideration because the Commanding Officer stated that he did not want him for the position. The candidate who was selected as a result of the competition was the same member whom the Commanding Officer had initially wanted to appoint without competition. The Grievor then submitted a grievance against his exclusion from the competition and the appointment that resulted. Shortly thereafter, he applied for an extension of his term of service with the Force beyond his 60^th birthday, as is permitted by the RCMP Superannuation Regulations when there exists an operational requirement for a member's services. Both the Commanding Officer and the Director General, Officer Development and Resourcing Section made written submissions to the Chief Human Resources Officer in which they recommended against granting the Grievor's application. The Chief Human Resources Officer agreed with them and informed the Grievor that his application had been denied. Shortly before his retirement date, the Grievor made a harassment complaint against the Commanding Officer, the Director General, Officer Development and Resourcing Section and the Chief Human Resources Officer. He based his complaint on his removal as security co-ordinator, his exclusion from the competition held to staff that position and the denial of his application to extend his term of service. The Grievor argued that he had been the subject of discrimination on the basis of age. Several months later, a grievance decision set aside the competition results and ordered that the Grievor receive financial compensation. As for the harassment complaint, it was subsequently found to be valid in part because the decision-maker considered that the Commanding Officer had discriminated against the Grievor on the basis of a perception of a physical disability when he had invoked uncertainty over his health as a reason for removing him as security co-ordinator. However, he rejected all of the other allegations. A grievance submitted against that decision was denied at Level I on the grounds that the Grievor lacked standing, having retired from the Force some 10 months before the decision was issued.

The Grievor has standing because he was a member of the Force at the time that he initiated the complaint which was the subject of the impugned decision. The literal interpretation of the RCMP Act which the Level I adjudicator adopted does not reflect what Parliament intended.

As for the merits of the impugned decision, the decision-maker was correct to state that the Commanding Officer engaged in an unlawful discriminatory practice by invoking the Grievor's health as a reason for removing him from the security co-ordinator's position. However, the Commanding Officer's behaviour also amounted to harassment because the circumstances surrounding the Grievor's removal and the unwillingness to consider his application in the subsequent competition were both embarrassing and humiliating to him. Although the Commanding Officer may have enjoyed the discretion to replace the Grievor, especially given that the Grievor was to reach the mandatory retirement age well before the Papal visit, he needed to act in a manner that respected the Grievor's dignity and he also needed to do so for valid reasons. Instead, it appears that he was primarily motivated by a desire to confer an advantage upon another member. However, the allegations against the two other officers named in the complaint are not valid. It does not appear that they intentionally abused their authority but may have acted under a misapprehension as to what were the proper procedures to be followed for the conduct of the competition and the handling of the Grievor's application for an extension of service, which should have been brought to the Commissioner's attention. The decision to discharge the Grievor upon his reaching the mandatory retirement age does not constitute harassment because the decision was made pursuant to regulations which were presumed to be valid.

The grievance should be denied.

The Commissioner of the RCMP has rendered his decision in this case, as summarized by his office:

On the issue of standing, the Commissioner ruled that the grievance was simply a continuation of the harassment complaint that the Grievor filed when he was still an active member of the RCMP. That complaint started an uninterrupted chain of events that eventually resulted in the Level II submissions. This is consistent with the approach taken by the Commissioner in G-321 and G-332. Accordingly, the Commissioner ruled that the Grievor had standing to present the grievance.

As for the disclosure of documents requested by the Grievor, the review of the grievance record lead the Commissioner to believe that there was sufficient documentation to permit a review of the grievance on the merits.

Since no Level I decision was ever rendered on the merits of the grievance, the Commissioner had to decide whether to address the merits of the case himself or return the matter for a decision at Level I. The Commissioner ruled that the Grievor had been given an adequate opportunity to make his case and that there was sufficient information to ensure a well-informed decision. Furthermore, sending the matter back to Level I would significantly delay resolution of the grievance. Accordingly, the Commissioner did not return the grievance to Level I and considered it on the merits. On the merits, the Commissioner agreed with the Respondent that no harassment occurred and he further agreed with the ERC's recommendations. Accordingly, he denied the grievance on the merits.

The Commissioner also addressed the Grievor's claims that the harassment complaint process was not independent or impartial and amounted to a breach of natural justice. The Commissioner believed that it would have been preferable to assign the decision-making responsibilities to a Deputy Commissioner from a different region in order to prevent any apprehension of bias. However, he did not believe that it made for a biassed final decision. He concluded that the complaint process was impartial and allowed for a fair result.