Grievance Case Summary - G-325

In July 2001, just four months before he was to reach the mandatory retirement age of 60 that has been established for officers, the Grievor submitted an application to extend his term of service. The application was referred to the Chief Human Resources Officer who issued a decision rejecting that application after receiving written advice from the Grievor's Commanding Officer and the Director General, Executive Officer Development and Resourcing Section, that there was no operational requirement for the Grievor's continued services. As a result, the Grievor was discharged from the Force in November 2001. His grievance submission was that the decision to discharge him constituted unlawful discrimination on the basis of age. In response, the Force maintained that the decision complied with the Canadian Human Rights Act because age 60 was the normal age of retirement for RCMP officers. It was eventually conceded that the application ought to have been forwarded to the Commissioner of the RCMP, rather than being decided by the Chief Human Resources Officer. The Level I Adjudicator indicated that he was upholding the grievance because of the error that had been made. However, he concluded that the error was inconsequential because the Commissioner would not likely have ruled in the Grievor's favour given the absence of any indication that there was an operational requirement for his services.

The Grievor ought to be financially compensated for the fact that he was wrongly denied an opportunity to have his application for an extension of service considered by the Commissioner. The fact that the application was ultimately sent to the Commissioner one year after the Grievor had retired was not an adequate measure. It is unfair to speculate how the Commissioner might have addressed that application if it had been brought to his attention before the Grievor retired. The Level I Adjudicator relied on a narrow interpretation of what constitute good governance and operational requirements. Experience, education and the motivation to continue working are all factors that the Commissioner would have been entitled to consider. The fact that there was no available position for the Grievor within his division would not have prevented the Commissioner from concluding that there was a useful role that he could have assumed elsewhere within the Force.

The mandatory retirement provision may no longer be lawful. Although the courts have found in some instances that mandatory retirement provisions constitute a reasonable limit to the rights guaranteed by the Charter of Rights and Freedoms, recent case law has redefined what constitutes a bona fide occupational requirement. The applicable test is now whether the Force would experience an undue hardship if it retained the Grievor.

The grievance should be allowed.

The Commissioner first addressed three procedural issues. With respect to the Level I adjudicator's failure to convene a GAB, the Commissioner ruled that the Grievor was not unduly prejudiced by that decision in this case. As for the correspondence received by the Level I adjudicator from the Executive Officer Development and Resourcing confirming that the Respondent had not forwarded the Grievor's extension application for consideration, the Commissioner was satisfied that even if the document had been disclosed, it would not have affected the outcome since the Grievor had already prepared extensive submissions. Finally, the Commissioner addressed the Grievor's claim that he communicated with the Commissioner during the grievance process and received no satisfaction. The Commissioner clarified that he was not involved with this grievance prior to exercising his role as Level II adjudicator as the communications from the Grievor were screened by the Commissioner's Executive Assistant and subsequently dealt with by the Deputy Commissioner, Central Region.

As for the issue concerning the constitutional validity of s. 26 of the Superannuation Regulations, the Commissioner believed that the question of whether legislative provisions are valid is more properly debated outside the context of the grievance process. Consequently, the Commissioner decided to presume that s. 26 of the Superannuation Regulations was valid and decide the grievance on the merits.

On the merits, the Commissioner agreed that an error occurred in the processing of the Grievor's application for an extension of service which resulted in the Commissioner not having the opportunity to consider the application. The Commissioner realized that no malice or bad faith was intended, although the matter was handled in a way that was unprofessional and distressing for the Grievor. However, the Commissioner claimed that had he received the application in a timely fashion, it was unlikely that he would have supported the Grievor's extension request, given the apparent lack of operational need at that time. Consequently, the procedural problem that affected the Grievor's application did not cause substantial prejudice.

With the Grievor having already received financial compensation through a previous grievance, the Commissioner ruled that no additional compensation would be granted for this grievance.