Grievance Case Summary - G-485

The Force assigned a bilingual 'C' oral linguistic profile to a position in a province. It later advertised the job. The Grievor wanted to compete for the position, as it represented a promotion for him. The Force stopped him from doing so because he did not have a 'C' oral rating in French. The Grievor filed a grievance. He contended that the Force inappropriately prioritized language qualifications for jobs in general, assigned inconsistent linguistic requirements to positions in that province, and unfairly prevented him from competing for the position because he did not meet its oral profile. He also urged that his area was mostly English-speaking, that his French was good, and that the job's bilingual designation was too strict, given those and other factors. The Respondent was late in furnishing his submission. It was not considered for that reason.

The Level I Adjudicator partly allowed the grievance. He supported the position's oral linguistic rating, reasoning that the incumbent had to be able to appraise bilingual subordinates with high proficiency in their chosen official language. Yet he also found that part of the language profile had not been adequately justified. He therefore directed that an Official Languages Coordinator review the matter and provide an acceptable justification, or alternatively, that the Force amend one of the position's linguistic stipulations and reopen parts of the staffing action to the Grievor. The Grievor contested this decision at Level II. He stressed that the Force assigned conflicting language classifications to positions in that province. He provided job postings to validate his point. The Respondent also presented a submission, as well as documentation in support of it.

The ERC began its analysis by addressing some preliminary issues. It found that the RCMP Act prohibited the Grievor from grieving broad policy matters regarding how the Force dealt with language profiles in staffing actions throughout Canada and in that province. However, it observed that the Grievor could grieve the linguistic rating given to the Position, as it represented a specific decision which directly affected him. The ERC also found that neither the Grievor's Level II job posting exhibits, nor the Respondent's entire Level II presentation, were admissible. It reasoned, in part, that those materials could have been provided at Level I.

The ERC then reviewed the merits. It found that the evidence and the applicable authorities supported the Level I conclusion that the position's oral language profile was suitable. It added that when the Position was viewed globally, the record showed that the 'C' oral rating was most appropriate, in light of the language skills required to handle the sensitivities of managing and appraising bilingual members. It also relied on Federal Court and Supreme Court decisions in dismissing as irrelevant the Grievor's arguments that his posting was mostly English-speaking, that his French was good, and that similar, nearby positions had more relaxed language ratings.

The ERC recommended to the Commissioner of the RCMP that he deny the grievance. It also recommended that he endorse the Level I Adjudicator's decision and that he ensures that the remedy ordered at Level I is fully instituted.

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

The Commissioner agreed with the ERC that the Grievor had standing to grieve the linguistic profile for the specific position, as he had been denied the opportunity to compete for the job and was therefore personally affected. However, the Grievor was not personally affected by staffing qualifications assigned to other positions, and therefore could not address those concerns through the grievance process.

The Commissioner relied on the Official Languages Act, and found that he had to consider the objective requirements of the particular position based on the work-related need to provide services to the public and to employees. He pointed to the Federal Court decision in Rogers v. Canada (Department of National Defence), 2001 FCT 90, in which it was held that one should not intervene to modify a linguistic requirement of a position unless one made a finding that “there is no evidentiary basis to the designation, that the designation is unreasonable, or that the language requirements are imposed frivolously or arbitrarily” (Rogers, para. 27).

With respect to the bilingual BBC/BBC linguistic profile, the Commissioner pointed out that New Brunswick is a bilingual province, and that the position had been investigated by the Office of the Commissioner of Official Languages which found the profile to be correctly identified from the perspective of service to the public and for language of work purposes. The Commissioner found that the “C” level for oral communication was objectively required due to the nature of operations in which the position was involved, the specific functions and responsibilities associated with the position, and the consequent service and safety considerations that would arise. He agreed with the ERC and denied this part of the grievance.

The Commissioner also found that the Priority I (imperative) staffing basis was appropriate and rationally connected to the job duties. The position was a bilingual law enforcement position in a prescribed bilingual region which entailed supervisory responsibilities of employees from both official language groups, and was responsible for controlling the operations of a team to ensure that all investigations, activities and special functions were properly conducted and concluded. He disagreed with the Level I Adjudicator that an error may have occurred with respect to the priority assignment, and disagreed with the ERC recommendation to institute the remedy ordered by the Level I Adjudicator (i.e. that an Official Languages Coordinator review and justify the Priority I rating or that the Force designate the position Priority IS and re-open the staffing action to the Grievor).