Grievance Case Summary - G-414

While the Grievor was seconded to a United Nations mission in Bosnia, the Force issued a directive that limited Leave Without Pay (LWOP) and Self-funded Leave to exceptional cases only, due to a "severe lack of human resources". Upon his return to Canada, the Force received a request to have the Grievor return to Bosnia. The Grievor requested another secondment, which was denied. The Grievor then submitted a request for LWOP. The acting Human Resources Officer determined that the Grievor could not be released from his position. Subsequent discussions took place that would have seen the Grievor transferred and potentially released from another position. When this could not be arranged, the original decision that the Grievor could not be released was confirmed by the Human Resources Officer (Respondent) and the LWOP request was denied.

The Grievor filed both a harassment complaint and a grievance in relation to the LWOP denial and he subsequently retired. The Grievor argued that the denial was the result of a dispute at senior management levels and amounted to harassment in the form of abuse of authority.

A disagreement arose in relation to disclosure and the Grievor filed an Access to Information request. The Grievor continued to seek disclosure of material in the harassment complaint file.

In the course of the grievance the Grievor argued that the length of time the grievance process was taking amounted to an abuse of process and infringed his rights under the Canadian Charter of Rights and Freedoms (Charter) and that the internal direction limiting LWOP was contrary to Treasury Board (TB) policy. The Grievor also argued that there was unfairness in the handling of the grievance and the harassment complaint, and that the Level I decision was insufficient as it did not address all the grounds he had advanced.

The Committee did not allow the request for a Committee hearing, because it found that there was no issue of credibility, and the Grievor had a full opportunity to present his case at Level I. The Committee found that the materials from the harassment complaint file should have been disclosed. However, the prejudice caused by the lack of disclosure has been remedied because the Grievor obtained access to the harassment file through an Access to Information request. The documents he was requesting were not provided, and the Committee concluded they did not exist. The Committee also found that the Grievor should not have had to make an Access to Information request, but because he received the materials that were available, the Committee did not recommend that the Commissioner allow the grievance for this reason.

The Committee acknowledged that there were significant delays in the grievance process at Level I, but found that these did not constitute an abuse of process or a breach of the Charter. The Committee apologized to the Grievor for its part in the delay at Level II.

The Committee found that the Level I Adjudicator' s reasons were not sufficient. It recommended that given the lengthy delay and the fact that the parties have had a full chance to present their positions, the Commissioner should proceed to make a decision on the merits rather than send the matter back to Level I.

The Committee found that the TB LWOP policy did not create an entitlement to LWOP and the TB LWOP did not prevent the Force from issuing internal direction on approval of LWOP, including that LWOP be granted only in exceptional circumstances. The Committee further found that the Grievors LWOP request did not meet the requirement of being exceptional.

The Committee found that harassment in the form of abuse of authority includes both an improper use of power and an intention to harm. Neither was proven in this case. The Committee stated that even if the Grievor had established that there was animosity at the senior management levels, which was not conclusively established, there was insufficient evidence to connect this animosity with the denial of the LWOP request.

Finally, the Committee found that there were shortcomings in the way that the Grievor issues were handled by the Force, including a lack of communication and concerns with respect to the fairness of the harassment complaint investigation.

The Committee recommended that the grievance be denied.

The Committee suggests that the Commissioner may wish to acknowledge that there were shortcomings in the way that the Grievor's issues were handled by the Force.

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

The Commissioner concluded that the admissibility of additional submissions made by the Grievor in response to the Committee's findings and recommendations was questionable. That being said, the Commissioner reviewed and considered them and did not find they provided a basis for a different decision than if he had not considered them.

With respect to the Grievor's request for a hearing before the Committee, the Commissioner noted that there is no absolute right to such a hearing and found that the Chair of the Committee properly exercised her discretion not to hold one.

The Commissioner agreed with the ERC that delay in the grievance process did not result in an abuse of process or a breach of the Charter. He also agreed that the Grievor should not have had to go the route of an access to information request in order to obtain relevant information. Furthermore, if documentation on the harassment complaint was available, it should have been disclosed to the Grievor since it was relevant. However, since the Grievor's access to information request did not produce any documentary information in that respect, it seems that no such documents were available.

The Commissioner found that the Level I Adjudicator did not provide adequate reasons for his decision on the merits of the grievance. Given the considerable passage of time since the commencement of this matter, the Commissioner agreed with the Committee that it was preferable that he reach a decision on the merits, rather than return the case to Level I for reconsideration.

The Commissioner agreed with the Committee that the TB LWOP policy did not entitle the Grievor to LWOP. The TB LWOP policy generally outlined the opportunity of obtaining a leave from employment, and dictated that such requests were to be considered with reference to the terms and conditions of an individual's place of work. For the Grievor, such terms included the RCMP's Leave Policy (AM.II.5), pursuant to which the approval of leave requests was discretional, and an internal direction issued by the Chief Human Resources Officer, restricting LWOP approvals to "exceptional" cases only. The Grievor did not show that the Respondent erred in finding that his LWOP request was not "exceptional".

As for the Grievor's allegation that there was animosity at the senior management levels, the Commissioner found that it was unclear, based on the limited factual evidence in the record, whether there was in fact a dispute among management. In any event, making a determination on this particular issue was unnecessary, since there was no indication that such differences (if they existed) impacted or influenced the Respondent's decision on the Grievor's LWOP request.

The Commissioner found that the impugned decision to deny the Grievor's LWOP request was a legitimate exercise of managerial discretion, based on staffing and resource considerations in the Grievor's unit and the NWR, and in application of policy and internal direction. The Grievor failed to establish that in reaching this decision, the Respondent made an improper use of his authority and/or that he abused his authority in a manner amounting to harassment.

The Commissioner denied the grievance, adding that it seems that communication among the parties could have been better in this matter, and that the grievance could have been handled more efficiently.