Grievance Case Summary - G-607

In late 2010, the Grievor and her superiors finalized interrelated documents that established the basis for her medical discharge from the RCMP (Discharge Documents), which was to occur on January 9, 2013. The Discharge Documents contained a number of negotiated terms. Among them were that the discharge had been sought and supported in light of the Grievor’s disability and that the Grievor released the RCMP from any grievances relating to the parties’ agreement.

The Respondent sent the Grievor a Notice of Discharge (Notice), which the Grievor received on September 25, 2012. The Notice made references to the parties’ agreement and reiterated that the Grievor’s date of discharge was January 9, 2013. The Notice further stated that, pursuant to subsection 22(a) of the RCMP Regulations, the discharge was “subject to a grievance”. The Grievor later expressed concerns that she signed the Discharge Documents while under duress and that the RCMP had not met certain obligations under the Discharge Documents and at law.

On October 5, 2012, the Grievor grieved the decision to discharge her. The Respondent argued that the grievance was filed outside the 30-day statutory limitation period. The issue of timeliness was referred to a Level I Adjudicator. Two days after receiving the grievance, the Level I Adjudicator issued a decision in which he denied the grievance on the basis that it was untimely. The Adjudicator advised the Case Manager that: “I assumed a decision on this was required asap”. At Level II, the Grievor argues that the Level I Adjudicator lacked jurisdiction to make a decision and that the grievance was timely. The Grievor also submits that the grievance process was procedurally unfair and that the Adjudicator should have disclosed various materials relating to the drafting of his decision.

The ERC found that the Level I Adjudicator assumed his role in a manner that was consistent with applicable authorities and had jurisdiction to make his decision. The RCMP Grievance Policy provided that adjudicator designations were coordinated by the Professional Standards Unit on case-by-case bases. The record reveals this is what happened in this case.

The ERC found that the grievance was not initiated within the statutory 30-day Level I time limit. The disputed decision was made and communicated to the Grievor by October 2010, when the Discharge Documents were completed. Those documents reflected, on their face, the decision to discharge the Grievor and the Grievor’s agreement to the discharge. The Notice the Grievor received in 2012 was not a new decision as it was based on and issued pursuant to the set of facts agreed by the parties in October 2010. The Respondent’s compliance with subsection 22(a) of the RCMP Regulations was neither a waiver of the release provision in the Discharge Documents nor a new, grievable decision. The ERC dismissed the Grievor’s other timeliness arguments on the bases that they were unsupported and/or unrelated to the timeliness issue.

The ERC also found that the grievance process was procedurally fair. There was no evidence of bias or favouritism on the part of the Case Manager. The materials the Grievor sought from the Level I Adjudicator were not subject to disclosure pursuant to subsection 31(4) of the Act and would not have been disclosable if they did exist and were in the possession of the Level I Adjudicator. The Level I decision was indeed issued promptly and contained unfortunate errors. However, the record divulged several reasons why an informed person who viewed the matter realistically and practically would not find there was a likelihood of bias on the Level I Adjudicator’s part. Lastly, the Adjudicator did not make assumptions or omissions which prejudiced the Grievor.

The ERC recommended to the Commissioner of the RCMP that he deny the grievance.

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

The Grievor presented a grievance challenging the Respondent's decision to issue her a Notice of Discharge. The Respondent raised the preliminary issue of the limitation period, arguing that the Grievor was aware of the decision as early as 2010, but presented her grievance in 2012. The Level I Adjudicator denied the grievance on that basis. At Level II, the Grievor challenged the Level I Adjudicator's jurisdiction, maintained that the grievance was presented within the statutory time limit, and submitted that the treatment of her grievance at Level I and the decision-making process were procedurally unfair.

The Commissioner accepted the ERC's findings that the grievance was out of time, that a retroactive extension of time was not warranted, and that there is no evidence of procedural unfairness in the Record. However, the Commissioner disagreed with the ERC on the issue of jurisdiction, and found that the Level I Adjudicator was never designated as adjudicator, and therefore lacked jurisdiction. Given that the Grievor provided full submissions on the substantive issue concerning the limitation period, the Commissioner rendered a decision, rather than returning the grievance to Level I. Ultimately, the grievance was denied.