Grievance Case Summary - G-383

The Grievor, who was transferred to a post that was less than 40 km from his residence, was required to relocate within the new detachment area. The Grievor believed that all the Integrated Relocation Policy (IRP) provisions and the transfer allowance (TA) entitlement would be applicable to his move. However, he was refused enrolment in the IRP with regard to the sale of his residence and he was also denied a TA due to the less than 40 km distance. The Grievor was later enrolled in the IRP during informal discussions but his entitlement to a TA remained the issue of the grievance.

In 1985 Treasury Board had approved in a Treasury Board Minute (TBM) the payment of a transfer allowance for members. There was an exclusion for "local area moves defined in the RCMP Relocation Directive as being an authorized relocation within the same metropolitan community and within commuting distance". While the Grievor relied on the exact wording of this TBM to support his entitlement to a TA, the Respondent denied it as the Grievor's relocation was less than 40 km. The Respondent had substituted the original TBM restriction of "within the same metropolitan community and within commuting distance relocation" with the 40 km exclusion utilized by the Income Tax Act to determine the eligibility of a relocation expense.

The entitlement to a TA arises from the 1985 TBM and that document prevails where there is confusion or conflict with RCMP policies and directives. The Committee is of the view that the definition could only be changed by Treasury Board either modifying or rescinding the relevant portion of the 1985 TBM and not by RCMP's policies and directives. There is no evidence that Treasury Board had done this.

The Committee found that the Grievor was entitled to a TA as long as his move was not within the metropolitan community or within commuting distance of the new post. The Committee found that the Grievor's former residence was not within commuting distance of his new post and was not within the metropolitan area of his new post.

The grievance should be allowed. In addition, the Commissioner should consider ordering a review of the 1985 TBM and RCMP policies as they relate to this issue in order to confirm the status of the 1985 TBM, and establish a clearer framework for assessing claims related to the transfer allowance, and recommend changes to the applicable policies to address all contradictions and inconsistencies.

The Committee modified its original recommendation dated July 10, 2006 and denied the grievance. The Committee determined that when there were different provisions in governing documents, those documents must be categorized. If there is a conflict between Treasury Board documents and policies adopted by the Force, the Treasury Board documents prevail. However, where the different provisions are located in Treasury Board documents that apply to the Force, different considerations apply. If Treasury Board has adopted a provision specific to the RCMP that differs from a provision that applies to the Public Service as a whole, the provision specific to the RCMP will be the one that is followed. If there is a conflict between two Treasury Board provisions that are both specific to the RCMP, then the most recent of the two will govern. If there are two non conflicting provisions in Treasury Board documents that apply to one issue, then both provisions apply.

The Committee found that the 1985 TBM is a Treasury Board document specific to the RCMP. The Committee found that IRP 2003 was a more recent Treasury Board document, also with specific directions on transfer allowances for the RCMP. It could be said either that the IRP provision replaced the 1985 TBM provision, or that it added to the 1985 TBM by identifying another situation for which the transfer allowance would not be paid. However, this need not be determined, because both scenarios meant that the IRP 2003 would apply and that transfer allowances were not paid for moves under 40 km.

The Committee recommended to the Commissioner of the RCMP that the grievance be denied. In addition, the Commissioner should consider ordering a review of the 1985 TBM and RCMP policies as they relate to this issue in order to confirm the status of the 1985 TBM, and establish a clearer framework for assessing claims related to the transfer allowance, and recommend changes to the applicable policies to address all contradictions and inconsistencies.

The Commissioner of the RCMP decision, as summarized by his office, is as follows:

The Commissioner denied the grievance, as recommended by the Committee.

The Commissioner found the IRP to be categorical and without exception: a transfer allowance will not be paid for a relocation under 40 km, even if the relocation is authorized on the basis of documented operational need. The Commissioner agreed in this respect with the findings reached by then Acting Commissioner W. Sweeney in a Level II grievance decision on case G-411 (ERC 3300-05-006), a matter involving a similar issue. The Commissioner also agreed with the concerns expressed by the Acting Commissioner in G-411 over the use of Treasury Board Minutes in the consideration of a grievance. These concerns pertain to the privileged nature of Treasury Board Minutes as Cabinet Confidences pursuant to the Canada Evidence Act.