Grievance Case Summary - G-529

In 2005, the Force took steps to test the Grievor’s integrity. One step involved placing a bag containing $575 in a vehicle the Grievor had to search. Following the search, the Grievor failed to immediately turn over the bag from which he took $100. He was suspended with pay and served with a Notice of Intent to Recommend Stoppage of Pay and Allowances. He challenged this recommendation, and positions were then taken for and against it. This included the Grievor’s claim that he meant to quickly return the $100. The Respondent went on to issue a Stoppage of Pay and Allowances Order (SPAO).

The Grievor grieved the SPAO. He felt that it was inconsistent with principles of natural justice, and that it caused him undue financial hardship in light of his difficult personal situation. He also believed criteria for imposing the SPAO were unmet, and that the SPAO was in force for such an exceedingly long time that he had been constructively dismissed. A Level I Adjudicator denied the matter finding the decision to institute a SWOP was appropriate in the circumstances. He reasoned, in part, that the Grievor’s conduct was outrageous; that other members with medical conditions did not steal; that SPAO could be imposed for summary convictions, including Code of Conduct violations; that the Grievor’s request for compassion had very little relevance since he had to determine how to protect the integrity of the Force; and, that the SPAO was properly effected. The Grievor resigned in 2008.

After dealing with multiple preliminary issues, including finding the Respondent did not appear to satisfy his disclosure obligations under s. 33(3) of the Act, the ERC found that the Level I Adjudicator’s reasons were inadequate. First, the reasons did not directly address the grievance submissions. Instead, the decision responded to submissions made before the SPAO was instituted. The parties thus could not be assured that their submissions were considered. Second, the reasons contained overriding errors. These included finding clear involvement in an allegation even though the Respondent had been unable to make such a finding, and that Code of Conduct violations constitute summary convictions. Even if the Grievor was summarily convicted, a SPAO could not have been imposed according to applicable policy. Third, the reasons failed to support key conclusions. They were vague, incomplete, and revealed a refusal to consider some of the Grievor’s claims. It appears the Level I Adjudicator neglected to consider the Grievor’s position regarding undue hardship, compassion and his medical condition.

Upon reviewing the relevant policy provisions and case law, the ERC found that the Grievor had not engaged in "extreme" and "outrageous" conduct and that the SPAO was not justified. However, it also found that he failed to establish that the Force had acted in bad faith, that the Force unfairly executed the SPAO, and that the SPAO amounted to a constructive dismissal.

The ERC recommended that the Commissioner of the RCMP allow the appeal and order a reinstatement of the Grievor's pay and allowances up to the date of his resignation. It also recommended that the Commissioner order a review of the Grievor's file so that appropriate pension adjustments could be made, if applicable. It further recommended, because the SPAO is such an extreme measure, that the Commissioner order a review of the rules surrounding the imposition of SPAO so that consideration could be given to adding two elements, if they are not already in place. The first element would be the creation of a monitoring system of regular reviews. The second element would be the prioritization of cases involving a SPAO at every step of the disciplinary process.

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

In a decision dated January 15, 2013, Acting Commissioner Steve Graham denied the grievance.

With respect to the issue of whether the Respondent complied with his disclosure obligation in the grievance process, a matter that the ERC discussed in its report, the Commissioner noted that the Grievor did not seek a Level I decision on the issue of disclosure, nor did he raise the failure to disclose as an issue in his submissions. Therefore, the Commissioner found that the disclosure issue was not before him for decision.

The Commissioner agreed with the ERC that the Level I Adjudicator's reasons on some issues could have been more fulsome. He noted, however, that there was no requirement for the Adjudicator to summarize or refer to every submission made by a party. He referred to the Supreme Court of Canada's recent judgment in the matter of Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, where the Court found that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. The Commissioner did not agree with the ERC's recommendation that the grievance should be allowed on the basis that the Level I Adjudicator's reasons were insufficient. He stated that his decision to allow or deny the grievance would be based on whether the Respondent's decision to issue the SPA Order was "consistent with applicable legislation and Royal Canadian Mounted Police and Treasury Board policies" (Commissioner's Standing Orders (Grievances), SOR/2003-181, s. 17), not whether the Level I Adjudicator erred by providing insufficient reasons.

The Commissioner agreed with the ERC that the Level I Adjudicator erred in finding that Code of Conduct violations constitute "summary convictions". However, contrary to the ERC's finding on that issue, the Commissioner was not convinced that the Adjudicator in fact considered the conduct described in Allegation #1 in support of his conclusion that the SPA Order was appropriate. The Commissioner also found that even if the Adjudicator did consider Allegation #1 and therefore erred in this respect (given that the Respondent's Order was only based on Allegation #2), he did not believe that the Adjudicator's final decision would necessarily have been different, given his own findings that the SPA Order was warranted based on the Grievor's clear involvement in the outrageous conduct described in Allegation #2. The Commissioner also disagreed with the ERC's finding that the grievance should be allowed due to the Level I Adjudicator's "overriding" errors. The Commissioner again stated that his decision to allow or deny the grievance would be based on whether the Respondent's decision to issue the SPA Order was "consistent with applicable legislation and Royal Canadian Mounted Police and Treasury Board policies." The Commissioner explained that, as the final level (i.e. Level II) in the RCMP's grievance process pursuant to subsection 32(1) of the Act, he performs a de novo review of the grievance, meaning that the whole matter is determined afresh.

The Commissioner disagreed with the ERC that the Grievor had not engaged in "extreme" and "outrageous" conduct and that the SPAO was not justified. The Commissioner found that the Grievor stole, for all he knew, an exhibit during a search authorized by the court in the course of a criminal investigation. The Grievor could not have just replaced the money the next day. The money was an exhibit and therefore, it could not have been replaced once spent or taken. The misconduct placed in doubt the integrity, honesty, and moral character of the Grievor, and compromised the member's effectiveness and the integrity of both the RCMP and the criminal justice system. The Grievor was well experienced (over 18 years of experience) and ought to have known the importance of preserving the integrity of the chain of evidence.

The Commissioner concluded that the present case involved extreme circumstances where it would have been inappropriate to continue paying the Grievor and therefore the Respondent's decision to stop the Grievor's pay and allowances was appropriate.