Grievance Case Summary - G-394

In 1999, a position became available in a unit. The Grievor was approached to fill this position but told that, due to fiscal restraints, no Force-paid relocation could be authorized, despite the fact that the distance of the move made the Grievor eligible for relocation. The Grievor agreed to this condition. The Grievor was transferred and commuted to his new workplace from his home, a distance of 68 km one-way.

In April of 2000, another member was transferred to the same unit and he received a Force-paid relocation. This member's old residence was closer to the new unit than the Grievor's residence. On the strength of this information, the Grievor requested that the Force reconsider its position. The request was denied. The Grievor grieved, stating that he accepted his no-cost transfer under false pretences. He had been told that there was no money to pay for his relocation, but shortly after, other members were given Force-paid moves.

In a subsequent email, the OIC, Career Management stated that the policy was to never pay for moves from the Grievor's old detachment to the new posting. This was an unwritten policy based on the fact that the new posting was a desirable post.

The Level I Adjudicator found that the Grievor was statute barred due to time limits. She found that the Grievor had been fully informed and waived his entitlement to a Force-paid move.

The Committee found that the Level I Adjudicator erred when she found the grievance had been filed outside the time limits.

The Committee also found that, although the Integrated Relocation Program - Pilot, effective April 1, 1999 did not make it a requirement for the Force to authorize a Force-paid relocation every time the 40 km distance criterion was met, the Force clearly treated it as an entitlement for members. Therefore, the Force could not withdraw the entitlement except in a fair and transparent way.

The Force required that the Grievor accept a no-cost transfer because the Division had a blanket unwritten policy that they would not offer Force-paid relocations for transfers from the Grievor's old detachment to the new posting no matter what the circumstances of the Grievor. This was an improper fettering of the discretion of the Force.

Further, even if the Force had properly exercised its discretion when it did not authorize a Force-paid relocation in the Grievor's case, the Grievor's waiver was neither fully informed nor fully voluntary. The Grievor did not know that the Force was making the decision based on a blanket unwritten policy when he waived his entitlement.

The Committee recommended that the grievance be allowed. As the Grievor appeared to have been transferred from the new unit, the Committee recommended that the Commissioner grant the following redress:

• that he acknowledge that the RCMP improperly exercised its discretion;
• if while he was still in the new unit, the Grievor moved at his own expense in order to have his new residence a minimum of 40 km closer to his workplace, he be reimbursed for that relocation; and,
• consider ordering an ex gratia payment in the amount of an appropriate rate for the excess kilometres commuted.

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

Acting Commissioner William Sweeney allowed the grievance on the merits, but found that the Grievor was not entitled to a financial remedy.

By decision dated November 13, 2008, Acting Commissioner Sweeney agreed with the Committee's findings that the grievance was filed in a timely manner. The statement that the Grievor could not receive a paid relocation and his decision to take a no-cost transfer in November 1999 were put in a "whole new light" upon the Grievor's discovery that another member's transfer in April 2000 had been paid by the Force. When the Grievor requested a Force-paid move at that time, he was informed that his request for reconsideration would be sent to the SPO and OIC Career Management for a decision. As the grievance was filed within thirty days from the date the Grievor received that decision, it was presented within the limitation period under the Act.

On the merits, Acting Commissioner Sweeney agreed with the Committee's recommendations and decided that the Grievor should have been provided with a Force-paid relocation. He agreed with the Committee's findings that the Grievor's original waiver of a no-cost move was not fully informed or voluntary, as he had not been made aware of a blanket policy preventing cost moves in the area, and he accepted the transfer before his colleague received a funded relocation for a shorter move from a different area. The blanket policy, which prevented a Force-paid relocation, no matter what the circumstances of the Grievor, was an improper fettering of the discretion of the Force. The Acting Commissioner was further concerned that the Grievor may not have been treated in a fair and equitable fashion. At the very least, the Grievor's relocation should have been funded in the new fiscal year, when monies became available, as evidenced by the funded move to the colleague who transferred into the unit.

The Acting Commissioner wrote that "it is inappropriate to rely upon unwritten rules in relation to the transfer of members. Such decisions should only be governed by relevant Treasury Board and RCMP written policies." Each potential transfer should be considered on its merits and not subjected to a blanket no funded transfer policy.

After requesting and reviewing submissions from the parties on the issue of remedy, the Acting Commissioner released a subsequent decision on October 15, 2009. The Acting Commissioner found that no redress was possible for the Grievor. The Grievor had not moved or incurred any relocation expenses and therefore could not receive reimbursement of expenses or monies under the relocation policy. In addition, as he had transferred from this posting approximately nineteen months later, it was no longer possible to provide a cost-move for the Grievor to this location. Further, the Grievor had been provided a RCMP vehicle due to the nature of his position. Although the relocation policy provided for payment to a member who did not relocate but used a personal vehicle to commute to a new work location which was close but over 40 km, the Grievor had not incurred any travel expenses for the use of his personal vehicle, and therefore could not receive payment to reimburse these costs. Moreover, the Acting Commissioner did not agree with the ERC that an ex gratia payment was possible in the situation. Acting Commissioner Sweeny extended his apologies to the Grievor.