Grievance Case Summary - G-494

The Grievor was a member of the Force. His wife later joined the RCMP. The Force advised that she could not stay in the province in which she and the Grievor lived (home province). She went to a new province. The Grievor planned on joining her once he sold their house. Meanwhile, they were holding homes in two provinces. He sought a Temporary Dual Residence Allowance (TDRA). On December 23, 2008, the Respondent denied the request. He claimed eligibility criteria were unmet. He suggested that the Grievor's wife consider returning to the home province. Inquiries were made, but an official later opined that it was "a suggested possibility [and] nothing more".

The Grievor reapplied for a TDRA on January 18, 2009, when certain eligibility barriers abated. On January 20, 2009, the Respondent denied the request. He explained, in part, that he could have posted the Grievor's wife to the home province. The Grievor was confused, given what he had been told. The Respondent was made aware of the full situation. He later decided that the TDRA request could not be granted, and that he could not return the Grievor's wife to the home province. The Grievor received this decision on February 9, 2009. He grieved it on February 27, 2009. The Respondent objected on the basis that a decision was first made on December 23, 2008, and that it was not grieved within the 30-day time limit. A Level I Adjudicator agreed.

The ERC noted that "a decision made after a review of an initial decision can be grievable in its own right ... [t]his occurs when for the review, new information [is] presented so that the matter is ... considered in a whole new light". It then applied this principle as follows.

The Respondent made a grievable decision on December 23, 2008, by rejecting the Grievor's TDRA request on the basis that eligibility criteria were not met. However, on January 18, 2009, the matter was placed into a whole new light when certain eligibility obstacles abated. This led the Respondent to review and re-decide things. He declined the Grievor's request again, partly on the new ground that he could have transferred the Grievor's wife to the home province. This was a fresh decision which reset the 30-day time limit for grieving. Around January 23, 2009, the matter was placed into a whole new light yet again when it became widely evident that the Respondent's new reason for the decision conflicted with what the Force had told the Grievor. The Respondent reviewed the case again. He opted to sustain his denial of the TDRA request, and to remove the possibility of relocating the Grievor's wife to the home province. The Grievor received this new decision on February 9, 2009. At that point, the 30-day time limit for grieving reset a second time. The Grievor grieved the new decision 18 days later, before the time limit expired. The ERC found that even if the grievance was untimely at Level I, there were several factors present which supported a retroactive extension of the time limit, under the RCMP Act.

The ERC recommended that the Commissioner of the RCMP allow this grievance by finding that the matter was timely at Level I. Alternatively, it recommended that he retroactively extend the Level I time limit. It also recommended that the record be returned to Level I so the parties can engage in Early Resolution and/or make submissions on the merits.

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

The Commissioner agreed with the ERC that the Grievor presented his grievance within the statutory time period set out in the Act. The Commissioner pointed out that requests for reconsideration do not have the effect of extending the time period, and that a decision on a second request for the same benefit is not a new grievable decision. However, in this case, subsequent events placed the matter in a whole new light. First, one of the reasons the original request for TDRA was denied was that the Grievor's Probable Implementation Date (PID) had not expired. When the Grievor's PID expired and the Respondent's stated reason for denial was no longer an issue, the Grievor was therefore entitled to resubmit his TDRA request. Second, when he denied the first request the Respondent provided a contradictory suggestion that the Grievor's transfer could be cancelled and the Grievor's wife could be posted in the home province for her field training. When he denied the second request the Respondent apparently criticized the failure to follow his suggestion. The Commissioner could see why the Grievor sought assistance from his SRR to obtain a fulsome answer from the Respondent so he could determine his course of action (either continue with the situation in the new province and pursue TDRA through a grievance, or return to the home province and await his wife's transfer, which would make a TDRA unnecessary). It was not until the Grievor received the memo from the Respondent that he was provided a clear decision which started the time period for presenting a grievance.

Even if the Commissioner had found the grievance to be untimely, the Commissioner would have granted a retroactive extension, as the delay in grieving was attributable to the Force providing conflicting information to the Grievor.

The Commissioner allowed the grievance in part on the basis that it was erroneously denied at Level I, and ordered the matter to return to the early resolution stage of Level I.