Grievance Case Summary - G-374

In 1996, the Grievor, then a Public Service Employee, changed her status to that of a civilian member (CM) of the RCMP. At that time she was advised that to change status, she was deemed to have quit the public service position and consequently, she received severance pay in 1996 half the normal rate. This meant that years later, her retirement severance pay, although calculated at the full rate based on her higher present salary, would be based only on her 9 years as a CM, instead of 31 years of combined PSE and CM service. On May 4, 2005, the Grievor sent a memo to the Director of the RCMP National Compensation Policy Centre asking for a review of the way that her change in status had been handled. She stated that she had recently found out that other PSEs who changed status to CMs around the same time she had, were not been deemed to have quit, did not receive severance pay at the time of the change in status, and were eligible to receive retirement severance pay at the full rate based on their present salary calculated on the basis of all of their years of service including their years as PSEs. The Respondent refused the request for a review. The member presented a grievance. The Level I Adjudicator found the grievance to be timely but noted that the policy at the source of the grievance was clearly not an RCMP policy but a Treasury Board policy. The grievance was dismissed on the basis that the decision was not made "within the administration of the affairs of the Force", and therefore, the Grievor did not have standing. The Grievor presented her grievance to Level II, arguing that it was the Force that administered the direction from Treasury Board, and therefore it was a decision made in "the administration of the affairs of the Force".

Because the Grievor's request for a review came out of a later discovery that other people who had moved to CM positions had not been deemed to have quit, the matter was put in a whole new light. Therefore, the Committee found that the grievance was presented within statutory time limits. The Committee found that the Level I Adjudicator erred in finding that the Grievor did not have standing. If the RCMP is given authority to interpret and apply a Treasury Board policy, then such a decision is very much a decision, act or omission "in the administration of the affairs of the Force". However, the Committee found that the case was impossible to review because the record is incomplete. It does not identify the specific policy and law that was interpreted and applied; or who had the authority to make the decision in 1996. The Committee stated that the minimum requirements under section 33(3) of the Act have not been met.

The Committee also identified several procedural errors in this grievance:

1. Contrary to the relevant Commissioners Standing Orders (CSO), the Respondent was never advised that a grievance had been presented against him;
2. The case was sent to Level I on the issue of timeliness without input from the parties, which violates the CSO and the duty to act fairly;
3. The file did not proceed to the early resolution phase, contrary to the relevant CSO, and
4. There were no steps taken to provide disclosure to the Grievor. Section 31(4) of the Act gives the Force the obligation to disclose to the Grievor whether or not the Grievor asks for it. At the minimum, the Force should have identified to the Grievor the policy and law used in 1996 to decide how to process her change in status, and should have provided any written information documenting the 1996 decision; who had authority to make the determination about how her change in status would be processed; and any other relevant written or documentary information under its control that it believed the member would reasonably require to properly present the grievance.

The Committee recommends to the Commissioner of the RCMP that he allow the grievance and order that the case be referred back to Level I for reconsideration and redetermination once the record is made complete and the procedural errors are addressed.

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

The Commissioner was concerned with the Case Manager's decision to forward the grievance to the Level I adjudicator for a decision on standing before allowing the Respondent to make submissions. The Case Manager indicated to the Level I adjudicator that it appeared to him that the Grievor did not have standing. The Commissioner ruled that it was highly inappropriate for Case Managers to make assumptions on the status of a grievance as it might appear that decisions are being made by people other than the official decision-makers.

Commissioner also took issue with the fact that the Level I adjudicator rendered his decision prematurely, without having sufficient documentation before him to make a well-advised decision. The Level I adjudicator should have requested a copy of all the relevant documentation before rendering his decision. The Commissioner also reminded all parties that they have a responsibility to follow the grievance policy to ensure that grievance records are complete.

As for the disclosure of information to the Grievor, pursuant to subsection 31(4) of the Act, the Commissioner is aware that many respondents regard subsection 31(4) as a nuisance and begrudge any compliance. However, he disagreed with the ERC's broad interpretation of that subsection as it relieves grievors of their responsibility of identifying and requesting the documents required to support their grievances. Grievors have an obligation to submit all documentation supporting their positions. The RCMP will assist grievors by facilitating access to documents they may not otherwise have access to, but it will not provide grievors with documents they can access themselves. It is the grievors' responsibility to present to the decision-maker a complete record with all the documents supporting their positions.

The Commissioner allowed the grievance and ordered that the case be referred back to Level I for reconsideration and redetermination once the Respondent is given the opportunity to make submissions and the record is made complete.