G-782 - Compensation

The Grievor was on sick leave before he was consensually medically discharged.

Before being discharged, the Grievor requested a cash-in-lieu payment for the 336 hours of leave which he was entitled to under section H.4. of the RCMP’s Administration Manual, Chapter II, Part 5 titled "Leave" (AM II.5).

A senior pay advisor informed the Grievor that the 336 hours can only be taken as time off and denied the Grievor’s request. In his correspondence with the Grievor, the pay advisor went further to state that officers who are to be medically discharged are not entitled to those earned 336 hours of time off. As a result, the Grievor never received the 336 hours of leave prior to his medical discharge.

The Grievor filed a grievance against that decision. The grievance was denied.

The Grievor presented his grievance at Level II. The Grievor continued to maintain that the RCMP had misinterpreted the policy and discriminated against him on the basis of disability.

Entitlement to the 336 Hours of Leave

The ERC found that the Grievor is entitled to the maximum number of hours set out in section H.4. of AM II.5.

Discrimination and the Entitlement to a Cash-in-Lieu Payment

The ERC found that the RCMP did not discriminate against the Grievor on the basis of disability concerning his request for a cash-in-lieu payment. The Grievor did not establish a prima facie case of discrimination, on a balance of probabilities. The Grievor was neither excluded based on a prohibited ground nor met the onus of proving that the Respondent’s explanation is a pretext.

Discrimination and the Entitlement to the 336 Hours of Leave

The ERC found that the Grievor established a prima facie case of discrimination, as the Grievor’s disability was a factor in the Respondent’s decision to deny him the 336 hours of leave. The Respondent did not provide a bona fide occupational requirement to justify denying the earned leave to officers who are to be medically discharged. Therefore, the ERC concluded that the RCMP discriminated against the Grievor on the basis of his disability.

Policy Interpretation and the Entitlement to a Cash-in-Lieu Payment

The ERC found that the policy is clear that cash-in-lieu payments are not available for the 336 hours of leave, and that the Grievor failed to make any persuasive argument that the Respondent misinterpreted this aspect of the policy.

Policy Interpretation and the Entitlement to the 336 Hours of Leave

The ERC found that the Respondent misinterpreted the policy. The 336 hours of time off are intended to recognize the unrecorded, additional hours that these officers are required to work, as they are not entitled to overtime. Eligible officers earn these hours of leave prior to being discharged, and the policy and the RCMP Accommodation Handbook are clear that officers who are entitled to those hours of leave should receive them immediately before discharging from the RCMP.

The ERC recommended that the grievance be allowed. Specifically, the ERC recommended that the Grievor’s discharge date be extended by amending his leave record to reflect 336 hours of leave after his sick leave.

The Commissioner’s decision, as summarized by his office, is as follows:

The Grievor was consensually medically discharged on a date he proposed. The Grievor requested that his 336 hours of commissioned officer leave be paid out in cash. The Respondent denied the request on the basis that policy requires the leave to be taken as time off immediately before discharge, and does not allow cash payment. The Grievor remained off-duty sick (ODS) to the date of his discharge and his final leave records for fiscal year 2014-2015 never reflected the 336 hours of commissioned officer leave. The Grievor’s medical status meant that he was not required to attend work or use annual leave to reach the desired discharge date. The Level I adjudicator dismissed the grievance, finding the Grievor failed to establish that the Respondent’s decision was inconsistent with applicable policies and legislation. The Grievor sought a review at Level II. The matter was referred to the RCMP External Review Committee (ERC), which found that there was no provision in policy to allow a cash payout of commissioned officer leave. Just the same, the ERC recommended that the Grievor’s discharge date be retroactively extended 336 hours. The Commissioner disagreed with the ERC after determining that, but for the Grievor’s insistence on being paid out, in the normal course, the last 336 hours of service before a commissioned officer discharges are recorded as commissioned officer leave. However, when commissioned officers are long-term ODS the situation amounts to a distinction without a difference. Moreover, RCMP Employee Profile Information (i.e., service records) of former members do not report on leave history as suggested by the ERC, but rather dates of engagement, postings, promotions, long term medical status, suspension and discharge. In fact, dates and types of leave for the previous fiscal year are purged from the leave system (HRMIS) every April. The Commissioner denied the grievance.