Grievance Case Summary - G-696

The Grievor grieved a decision by the Force ordering the stoppage of his pay and allowances (SPA). The Respondent ordered the SPA as a result of Code of Conduct allegations pertaining to the misuse of credit cards that the Grievor was authorized to use to perform his duties. The Respondent found that the criteria to impose a SPA were met. More particularly, he opined that the personal benefit acquired by the Grievor at public expense represented a fraud, theft, conversion and/or a breach of trust. The Respondent emphasized that the misuse of one particular card risked compromising the identity and the activities of the Grievor's operational program. This was a "significant element" contributing to the "outrageousness" of the alleged misconduct. Statutory charges were also approved against the Grievor for two counts of fraud under $5,000 which were proceeding by indictment. However, the Respondent indicated that the statutory charges were not used as justification for making the SPA Order.

The Grievor argued that, contrary to policy, the Recommendation to SPA contained additional information that was not contained in the Notice of Intent to Recommend a SPA. He further contended that, although his Member Representative (MR) had addressed the issue, he was not given an opportunity to personally address the new information. The Grievor argued that RCMP policy provides that a SPA will not apply to summary convictions or minor Criminal Code offences and that the charges he faced typically proceed by summary conviction. Lastly, the Grievor observed that other members have committed far more serious offences but have not been subjected to a SPA. He maintained that his SPA was punitive and only proceeded because of a vindictive Officer In Charge.

The ERC indicated that the Grievor was owed a high degree of procedural fairness in the SPA process, including the right to know the case against him and to have a meaningful opportunity to respond. The ERC found that the Grievor had had a meaningful opportunity to respond to the new information through his MR. The ERC noted that the Grievor had made no allegation that his MR had erred in any way. The ERC further found that because the Crown had elected to proceed by indictment, the RCMP policy provision which indicates that a SPA will not apply to a summary conviction, was not applicable in the circumstances. Regarding the Grievor's assertion that the SPA was punitive, the ERC found this to be an unsubstantiated, bald assertion. The ERC observed that a SPA is not a sanction, but rather is a preventive measure designed to protect the RCMP's integrity and its processes pending the outcome of the matter which gave rise to the measure, and that there was insufficient evidence to find otherwise. The ERC pointed out that each case will be dealt with on its own merits, and observed that the cases submitted by the Grievor were disciplinary cases where the applicable legal test was not the same as for a SPA. The ERC found that the Respondent had applied the correct test, reviewed the appropriate policy and had not erred in applying the required criteria for a SPA.

The ERC recommended that the Commissioner deny the grievance and confirm the Respondent's SPA decision.

The Commissioner's decision, as summarized by her office, is as follows:

The Grievor challenged a decision by the Respondent to issue a Stoppage of Pay and Allowances (SPA) Order which resulted from Code of Conduct allegations involving the Grievor's misuse of duty-related credit cards. Although statutory charges were approved against the Grievor for two counts of fraud under $5,000, the record indicates that the charges, which proceeded by indictment, were not considered in rendering the SPA. At Level I, the Adjudicator denied the grievance on its merits. The Grievor sought a review at Level II. The grievance was referred to the ERC. The ERC recommended that the grievance be denied on the basis that there was no breach of procedural fairness, the Grievor had not established that the Respondent's decision was inconsistent with policy, the Grievor had not provided sufficient evidence that the SPA was punitive, and the 21 disciplinary decisions he referred to at Level I were irrelevant. The ERC was satisfied that the Respondent had applied the correct test, reviewed the appropriate policy, and did not err in applying the criteria of clear involvement and outrageous alleged misconduct. The Commissioner agrees with the ERC Findings and Recommendations. The grievance is denied.