Grievance Case Summary - G-363

The Grievor, a civilian member, was seconded to an organization overseas for two years with the possibility of an extension. The Grievor assumed his overseas position about four months after the signing of the secondment agreement. Prior to leaving Canada, he placed his family home on the real estate market and it sold shortly thereafter.

The Grievor was eligible for certain benefits from the Treasury Board's Foreign Service Directives (FSD), as a "foreign assignment employee". Pursuant to that policy, the Commissioner or his delegate was empowered to determine which benefits would be available to those employees. Here, the delegate advised the Grievor that he would not be eligible for FSD 16 which provides for reimbursement of the real estate and legal fees as well as any mortgage penalty arising from the sale of the family home in Canada. This reflected the apparently unwritten and undated RCMP policy applicable to all members with overseas secondments of less than three years, except for regular members in Liaison Officer positions. The delegate referred to the consistency between this RCMP policy and the TB policy (Relocation Directive) that governs the eligibility of public servants in Canada to a similar benefit when a secondment term is for three years or more. The delegate also explained that he would seek a final decision from Treasury Board regarding the Grievor's request. TB confirmed the decision to deny the FSD 16 benefit to the Grievor.

The Grievor did not file his grievance within statutory limit of 30 days of the final decision of the delegate. He requested an extension of time for the grievance filing which was granted under section 47.4 of the RCMP Act and then he filed it within that time. Both GAB and Level I Adjudicator determined that the Grievor had not filed his grievance within the statutory limit of 30 days but they relied upon different decision dates from which to count the 30 day period. In particular, Level I Adjudicator set aside the decision to extend the time for the grievance filing, as he was of the opinion that there were insufficient grounds to support that decision.

The Level I Adjudicator erred in determining that the Grievor had not respected the time limits. The Level I Adjudicator is not empowered to reverse decisions made by the Commissioner's delegate to extend the time for the filing of a grievance under section 47.4 of the RCMP Act.

The Committee decided to address the merits of the case because both parties had been heard on the merits and it would be the more efficient way to proceed given the considerable passage of time.

The Commissioner through his delegate had the authority to deny certain benefits to the Grievor. The RCMP internal policy on the matter appeared reasonable and there was no information to suggest that it was applied inconsistently or unfairly.

The RCMP distinguished between Liaison Officers and civilian members and other regular members on postings in positions other than Liaison Officer. FSD 16 applied to Liaison Officers with shorter postings because they often have extensions, they are often cross-posted and they do not always return to the city from which they were posted.

The Grievor chose to sell his own family home even though he had not received the final decision about whether he was eligible for reimbursement of his real estate commission and legal fees as well as the mortgage penalty.

The grievance should be denied on its merits.

The Commissioner has rendered a decision in this matter, as summarized by his office:

With respect to the timeliness of the Grievor's presentation of the grievance, the Commissioner agreed with the ERC. Level I lacked the necessary power to overturn the decision of the Commissioner's delegate, Mr. Radford, who exercised his authority under s. 47.4(1) of the RCMP Act to extend the time limit for presentation of the grievance. The Commissioner also noted that in the absence of evidence that the statutory power to extend the time limit was exercised by the delegate outside the terms of the delegation, the Commissioner himself did not have the authority to review the delegate's decision.

As for the merits of the grievance, the Commissioner first concluded that it was unnecessary to determine whether the Grievor's secondment met the terms of a "foreign assignment" (FSD s. 3.01), given that the RCMP's Relocation Policy expressly provided for the FSD's application.

The Commissioner then concluded that the Grievor was not entitled to the reimbursement of real estate fees, legal fees and the mortgage penalty claimed based on the combined application of AM VI.2.E.3 of the RCMP's Relocation Policy, FSD s. 16 introduction and s. 16.02, and s. 5.9.3.(a) of TB's Relocation Directive. Although the ERC based its recommendation to deny the grievance on the application of FSD 3.01(f)(iv), the Commissioner found that, given his earlier reasoning for denying the Grievor's claim, it was unnecessary to determine whether the claim could also be denied pursuant to FSD s. 3.01(f)(iv) or under the unwritten internal policy developed by [Mr. F]. Finally, the Commissioner also concluded that the Grievor was unentitled to relocation benefits based on the fact that he had sold his residence in the absence of prior written authorization to do so, as required by the applicable RCMP Relocation Policy. As a final note, the Commissioner echoed the ERC's comment at para. 59 of their findings, that the Grievor had "made a fully informed decision to take the risk" when he sold his residence after being informed of the RCMP's internal policy and without TB's prior agreement. The grievance was denied.