Articles of Interest

The Role of the RCMP External Review Committee in the Level II Grievance Review Process

by Catherine Ebbs, Chair, RCMP External Review Committee
Manitoba Staff Relations Representative and Sub Representative Meeting
October 17, 2006

INTRODUCTION

Hello everyone! I would like to start off by thanking you for inviting me to speak today. The RCMP External Review Committee is pleased to be able to participate in information sharing sessions, such as these, to let you know about the work that we do. We also benefit greatly from these events in our continuous learning about the important work done by members of the RCMP.

I have been asked today to talk about the Committee's mandate under the RCMP Act. Given that for many of you, this will be your introduction to the Committee and the work that we do, I thought it would also be useful to discuss procedural questions of standing, time limitations, disclosure, as well as matters concerning proof and some of the more meaty questions that come up through the grievance process.

But before I talk about any of these, let me share with you a brief background as to the reasons the Committee exists and what we do when a case comes to our office. I should mention as well that a copy of these speaking notes will be available to you in French or English, and will be posted on our web site. So don't worry too much about taking notes today.

It is generally understood that the creation of the RCMP External Review Committee arose out of the Report of Mr. Justice René Marin, head of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police (Information Canada, Ottawa, 1976). This report is commonly called the "Marin Report". The report identified the need for more independent labour relations in the RCMP. The Committee was created in 1986 to fulfill the role of providing an independent oversight mechanism with regard to labour relations issues so that RCMP members would have access to redress mechanisms that are somewhat comparable to those available to unionized public servants.

It is an independent tribunal, separate and apart from the RCMP. What that means is that when the tribunal deliberates or adjudicates and provides its recommendation, it does so impartially by a decision-maker who is not a member of the RCMP or part of the RCMP. The Committee is also considered a review and oversight body, and there is a public interest component to the Committee's work. However, unlike public complaint review bodies, the Committee does not address complaints from the public. Its key stakeholders are members of the RCMP.

At this time, the Committee has one member who is both the Chair and Chief Executive Officer. I am appointed by the Governor in Council for a term not exceeding five years. Under the Act, anyone who sits on the Committee cannot be a member or former member of the RCMP.

COMMITTEE'S MANDATE

The Committee has an overall strategic objective which is to "aim to positively influence the manner in which labour relations issues are addressed within the RCMP". Over the years, we have observed that our recommendations have been applied in many instances to effect changes in labour relations within the RCMP. Some of the areas where we have noted policy review as a result of our findings and recommendations include human rights issues; suspension of pay; medical discharge and the duty to accommodate; harassment procedures; other procedural issues. In addition, the Committee has made recommendations in a number of policy areas. For example, this year, it recommended greater transparency in the application of travel policies which will hopefully lead to improvements in this area.

The Committee also has two business lines or program activities. These are

1. Independent, timely, fair and impartial case review leading to the provision of quality findings and recommendations in all cases referred to the Committee - This is our recommendation making activity, which takes up most of our time and resources.
2. Dissemination of information on the role of the Committee and its findings and recommendations, as well as on relevant legal principles - This includes our outreach activities, such as meeting with you today.

With regard to its outreach function, the Committee regularly meets with the Staff Representative Program, Professional Standards and External Review, as well as other components of the RCMP to share information on the work it is doing. I should emphasize that in doing so, the Committee never shares information on specific cases in progress as this would compromise its impartiality. Part of its outreach function also includes tabling submissions to Commissions. For example, the Committee tabled a submission before the Arar Commission and this is available on its web site.

The Committee also discusses the cases it has issued in its Communiqué, that is distributed every three months. This and a number of articles and educational materials are on our web site at www.erc-cee.gc.ca.

The Act sets out the types of cases that require Committee review. These include certain types of grievances, discipline appeals and discharge and demotion appeals. It is important to note that the Committee is not an investigatory body. It is an appeal and review body. It is also important to note that it does not issue the final decision. That is left to the Commissioner of the RCMP. The Committee issues comprehensive recommendations after a review of all the evidence and legal arguments and should the Commissioner decide not to follow our recommendation, he is required by law to give reasons as to why.

People often ask us about the RCMP Commissioner's acceptance rate of Committee decisions. There are two parts to that answer. First, and most important from our point of view is that the Commissioner's acceptance rate of our recommendations is not used as a reflection of our performance. The Committee weighs its performance both by the output of findings and recommendations, and our quality assurance measures to ensure that such findings and recommendations follow the rule of law: that they are legally solid, impartial and also that they are issued in as efficient a way as possible. Nevertheless, as of September 20, 2006, the cumulative (since the ERC's creation) acceptance rate of our recommendations in grievance cases is quite high, in the upper 80% range. For discipline appeals, the acceptance rate is in the lower 70% range.

In all grievance, discipline and discharge and demotion matters referred to it, the Committee bases its review on the entire record provided. This includes all of the original documents, the decision made, and the submissions of the parties. Where the review involves the appeal of a disciplinary or discharge and demotion decision, the transcript of the Board hearing is also before the Committee, as well as any exhibits entered at the hearing. The Chair may request that the parties provide additional information or submissions. If this is done, the other party is given the chance to respond. As well, the Chair has authority to hold a hearing if deemed necessary, although use of this option is rare. The Chair reviews all the evidence, legal issues, relevant legislation and case law in coming to her determination on the matter.

Now that you have all this background information about the Committee, I would like to focus my discussion on grievances and how we go about doing a case review.

REFERABILITY TO THE COMMITTEE

If a member is dissatisfied with the decision made by a Level I Adjudicator, and wishes to take it further, then the member presents the grievance to Level II. This option is only available to the Grievor, not the Respondent. If the grievance is referable to the Committee, then the Commissioner will constitute the final decision-maker of that grievance at Level II and will refer it to the Committee for recommendations before making his decision. The Grievor may request that the Commissioner decide the matter directly without referring the grievance to the Committee. To the best of our knowledge this is not a frequent occurrence.

Whether or not a Level II grievance is referable to the Committee is not always easy to determine and so I would like to spend some time talking about that. Section 36 of the Regulations sets out 5 categories of referable grievances. These are:

1. interpretation and application of government-wide policies that apply to members of the RCMP;
2. stoppage of pay during suspension of a member;
3. interpretation and application of the Isolated Posts Directive;
4. interpretation and application of the Relocation Directive;
5. administrative discharge on grounds of physical or mental disability, abandonment of post, or irregular appointment.

Currently, the majority of the grievances referred to the Committee are received under subsection (a), which requires that any grievance involving the Force's interpretation and application of government wide policies that also apply to members of the Force be referred to the Committee. Examples of these types of policies include Treasury Board's policies on the payment of legal fees, travel expenses, crown-owned accommodation and harassment.

The Committee has never received an abandonment of post grievance, and has only reviewed a single irregular appointment grievance, but it has considered the issue of discharge of members due to mental or physical disability on several occasions.

With regard to referability, it is the first category that presents the most challenges in interpretation. This first category, under s.36(a), can be somewhat challenging to interpret and require careful application of the provision to determine whether or not a grievance is referable to the Committee. There are 3 elements under s.36(a).

First, there must be a government-wide policy. This is normally a Treasury Board policy, but other government-wide policies (ie, health or safety policies) may originate from other Departments and be applicable here. Second, the policy must be applicable to RCMP members. Third, the grievance must concern the Force's interpretation of the policy (as opposed to disagreement with the policy itself). The common thread of matters which are not referable is that they do not involve government-wide policies, but rather policies applicable only to the RCMP.

In order to clarify the meaning of s.36(a), René Marin, the first Chair of the Committee, and Commissioner Inkster developed a list of 16 referable matters in 1989. In 1990, Commissioner Inkster issued a Bulletin, AM 1706, with the list of 16 subjects. This is often referred to as "the list of 16". It should be stressed that the list of 16 is not exhaustive. It should also be recognized that a couple of the items in the original list were removed because alternate forms of redress were created (e.g. classification of civilian member positions). In October 1999, a Working Group, composed of one representative each from the Committee, Divisional Staff Relations Program and the RCMP's Policy Development Branch, prepared a report for the Commissioner's consideration. The report suggested changes intended to clarify which matters could and could not be referred to the Committee and may be a helpful reference point for future consideration of these issues.

Under the new grievance process, the Offices for the Coordination of Grievances for each region, in consultation with Headquarters, are responsible for determining referability and sending the file to the Committee. On some rare occasions, the Committee has disagreed that a file was referable. When this happens the Committee will issue a finding and recommendation to the Commissioner to this effect and, if he agrees, he will redirect the file to a delegated Level II Adjudicator. Examples of cases where this had occurred include cases where the grievance involved a policy that was strictly internal to the Force or where it involved interpretation of a Force-specific act or regulation, such as the RCMP Superannuation Act.

Once a grievance is referred, the file is prescreened by the Committee. In this way the Committee is able to identify any problems with referability up front. As well, there are occasionally (though infrequently) some very straightforward procedural issues to be addressed. These issues might result in a somewhat speedier determination of the grievance, or in the matter being sent back to Level I. This might occur, for example, if the file was incomplete, or if a time limits issue makes the grievance very clearly out of time . After the pre-screening, the lawyers review the entire file and prepare an analysis for the Chair.

In analysing the grievance, the Committee looks at the substance of the grievance and is not bound by the Grievor's formulation of the issues. For example, a Grievor may submit that a given Treasury Board policy is unfair (which is not grievable), when the Grievor is really complaining about the fairness of the RCMP's application of that policy (which is grievable). Some of the questions the Committee considers in the review are:

1. whether the matter is referable to the Committee;
2. whether issues of standing and time limits have been properly addressed;
3. whether the governing policies were properly applied;
4. whether the appropriate remedy was granted;
5. what were the previous Committee recommendations in similar cases;
6. what is the jurisprudence applicable to the issues; and
7. questions of referability, standing and time limits even if the parties have not raised them.

The Committee also examines in detail the reasons provided by the Level I Adjudicator. In the past and in a number of recommendations, the Committee has commented on Level I decisions, both favourably and less so. One thing that we try to emphasise is the importance of proper and adequate reasons. In some cases proper reasons can help avoid unnecessary grievances at Level II, allowing parties to determine that their concerns were given careful consideration and that a rigorous analysis led to the decision of the Level I Adjudicator. The reasons should show that the Adjudicator addressed the issues and the submissions in a meaningful way. In drafting reasons, the Adjudicator must demonstrate that he or she considered the arguments of the parties, rather than simply stating that "careful consideration" has been given to them. It is important to avoid "boiler-plate" reasons. Also, the Level I Adjudicator may have to address jurisprudence. This was illustrated in G-266, a grievance pertaining to medical discharge, where the Grievor's counsel relied on Supreme Court of Canada jurisprudence that fundamentally changed the test for the duty to accommodate: Public Service Employee Relations Commission v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin"). The Chair found it surprising that "neither the GAB, nor the Level I adjudicator chose to address the Meiorin decision, despite having before them very cogent submissions from the Grievor's counsel as to its relevance". The Commissioner echoed the Committee's concern, declaring that the Chair was correct in stating that the decision in Meiorin should have been taken into account when the grievance was considered, both by the GAB and subsequently by the Level I Adjudicator.

The need for proper reasons is now even more important since there are no longer GABs in the new grievance process, and the rationale for decisions rests squarely on the shoulders of Level I Adjudicators.

BURDEN OF PERSUASION

Before discussing preliminary matters, I'd like to quickly refer to a very important issue. For the Committee to properly and meaningfully be able to review a grievance, it needs information. A key concept for members to keep in mind when presenting grievances is that of the burden of persuasion. The term "burden of persuasion" is perhaps a roundabout term. In a nutshell, what it refers to is the notion that it is up to a Grievor to show on a balance of probabilities that a Force decision, act or omission being grieved is wrong. As a result it is important that Grievors ensure that they include in their Level I presentation all relevant evidence which will assist them in showing that a grievance should be allowed.

Let me refer to recent findings and recommendations by the Committee in G-372 which highlight the importance of ensuring that all relevant evidence is presented, and the potential consequences of failing to do so. In that matter, the Grievor was transferred to a new location, to which he travelled by air with his family. The family's Household Goods and Effects ("HGEs") were transported by other means and took about 3 extra weeks to arrive. Because of this lengthy separation from their HGEs, the Grievor and his family resided in temporary accommodations, more specifically in a unit with kitchen facilities.

The Integrated Relocation Program-Pilot-RCMP and GOC ("IRPP") which was in effect at the time allowed for reimbursement of interim lodgings, meals and incidentals for up to 21 days. In the Grievor's case, it took 24 days for the HGEs to arrive. The Force agreed to cover the Grievor's accommodation expenses for the additional 3 days. However, it refused to do so for meals given the wording of the IRPP, which stated that it was only in exceptional circumstances that transferees could be reimbursed meal expenses past 21 days. These exceptional circumstances were met if: (i) no suitable accommodation with adequate cooking facilities was located within 16 kilometres (one-way) of the transferee's place of work; or (ii) the transferee was unable to obtain such accommodation within 21 days of transferring even though it existed within 16 kilometres of the place of work.

The live issue in the grievance thus became whether the Grievor's interim accommodations had adequate cooking facilities, and if they did not, whether the Grievor had tried to secure such adequate facilities within 21 days of transferring. In the Level I process, the Respondent had indicated confirming by telephone with the facility where the Grievor was staying that he was indeed occupying in an apartment with "full cooking facilities". The Grievor had an opportunity to respond to this, however indicated only that the unit did not have a "full kitchen" and that he had to eat out with his family. No other details were provided.

Although the Committee agreed with the Level I Adjudicator that the grievance was out of time, it stated that even if it had turned to the merits, it could not have upheld the grievance based on the submissions made by the Grievor. The Grievor had ample opportunity to contest the Respondent's submission that the unit had "full cooking facilities", and to indicate why it did not meet the criteria of "adequate cooking facilities" as set out in the IRPP. However, he did not do so, and the Committee recommended to the Commissioner that the grievance be denied.

Although the burden of persuasion is a key concept for Grievors to keep in mind when making their arguments on the merits, they also need to ensure that they provide sufficient information or evidence when it is relevant to preliminary issues as well. For instance, in G-372, the Level I grievance was provided to the Force one day beyond the allowable period of time under s. 31(2)(a) of the Act, and at Level II was sent to the Force one day beyond the statutory time limit of fourteen days under s.31(2)(b) of the Act. The Committee acknowledged that a one-day delay in both cases was minimal. However, the time limits are spelled out in the statute itself and the Grievor had not provided any explanation as to why he was late in presenting his grievance at both levels, nor had he provided any indication in the record that he otherwise intended to meet the statutory requirements. Moreover, the Grievor had failed to respect the time limit at Level II even though the Level I Adjudicator had drawn to his attention the importance of timeliness by denying his grievance on that very basis. For those reasons, the Committee did not recommend that the Commissioner provide an extension pursuant to s.47.4. of the Act.

Sufficient information on the file enables the Committee to make thorough and meaningful reviews of grievances.

PRELIMINARY ISSUES

There are two preliminary issues related to grievances that the Committee deals with on a regular basis: standing to grieve and adherence to time limits. The Committee is particularly interested in these two issues, largely because of our past experience with Level I adjudication.

For example, of the thirty grievances completed by the Committee in the 2005-2006 fiscal year, eighteen were denied by Level I Adjudicators for either lack of standing or failure to meet time limits. In fourteen of those cases, almost 80%, the Committee disagreed with the Level I Adjudicators on these preliminary issues. Specifically, there were seven instances in which the Committee disagreed with the Level I Adjudicator's decision that the member did not have standing.

As for time limits, the Committee disagreed seven times with the Level I Adjudicator's decision that the Level I time limit had not been met. As well, although the Committee recommended that extensions be granted pursuant to s. 47.4 in four cases where time limits had not been met, Level I Adjudicators had either been silent on the issue or in one case had decided that an extension already granted be set aside.

What this means is that in a high percentage of cases before it, the Committee was prepared to address the merits of the grievance, even though the Level I Adjudicator may not have, because they disagreed with the decision on the procedural issues.

The Committee also often emphasizes the need to ensure that parties are aware that a preliminary issue is being considered by the Level I Adjudicator and that they have had an opportunity to make submissions on the issue. Fairness demands that both parties be provided with an opportunity to be heard before a decision is made. This was stated once again, in a number of the travel related G8 grievance findings and recommendations of the Committee.

It is safe to say that all the procedural issues can be challenging. The tests used do not always offer easy answers. So today, let me go into some more detail on these important procedural questions.

Standing

Section 31(1) of the Act provides that members have a right to present a grievance when they are aggrieved by any decision, act or omission in the administration of the affairs of the Force as long as there is no other process for redress in the RCMP Act, the RCMP Regulations, or any Commissioner's Standing Order (CSO).

As the Committee has said on a number of occasions, the threshold for establishing standing is not very onerous. Members need not establish that they have suffered any actual loss; they need only establish that there has been a personal effect on them. Remember, a member cannot grieve policy, so each grievance should identify how the member was personally impacted.

Further, standing is a preliminary question as to whether a member can present the grievance. It does not concern the ultimate merits of the grievance. For example, the Grievor need not establish that a policy was incorrectly applied to have standing to grieve, as this is a matter for the merits.

In addition, while section 31(1) of the Act requires that the Grievor be "a member", this element has been interpreted broadly in order to allow access to the grievance process where it would be fair and sensible to do so. So, in cases where the decision grieved was taken when the person was still a member, or where the decision is related to a benefit that survives the member leaving the Force, such as a retirement relocation, or where the subject of the grievance is the failure of the Force to honour a commitment made while he was a member, there may be standing. If there is any question as to whether the Grievor meets this part of the test for standing, he or she should make submission on why the decision is related to the employer/employee relationship and why it is fair for them to have access to the grievance process.

A similarly broad interpretation has been applied to the phrase "in the administration of the affairs of the Force". This can include non-Force personnel as decision-makers, if the final authority for the decision rests with the Force.

Finally, while fairly straight forward, the limitation that there can be no other process for redress in the RCMP Act, Regulations or any CSO has been interpreted literally. This means that where other acts, regulations or policies provide for a complaint process or methods of redress, members will not be prevented from accessing the grievance process. The most frequent area where this arises is with harassment allegations. The Treasury Board policy on prevention of harassment in the workplace includes a process for complaints, investigation and resolution. Nevertheless, members can still file grievances alleging harassment as this procedure is not part of the RCMP Act, Regulations or any CSO.

Time Limits

Time limits have received an equal, if not greater, amount of attention from the Committee. The issue of assessing time limits can be quite complex, and as I just mentioned, we have noted in our last annual report that the Level I findings on this issue are often questioned by the Committee.

Section 31(2) of the Act provides that, at Level I, the member must present the grievance within 30 days after the day the member knew or reasonably ought to have known of the decision, act or omission giving rise to the grievance. At Level II, the member must present the grievance within 14 days after being served with the Level I decision.

Time limits are mandatory and cannot be waived by Level I or the Committee. They are either met or they are not. However, time limits can be extended, even retroactively, under s. 47.4(1) of the Act , and the issue of when a time limit begins to run is not always as obvious as it might seem.

Members are not required to grieve a policy interpretation that could potentially aggrieve them. Time limits start to run from when the policy is applied to the member's situation.

However, a grievance must be filed within 30 days of the date that the decision is first communicated, not after a subsequent step. This means that any time pre-authorization is required and denied, the member must grieve the denial of pre-authorization. He or she cannot wait until a later expense claim is rejected.

Also, members should be aware that attempts at informal resolution do not extend the time to file a grievance. Similarly, though there are some exceptions, a request to reconsider or ongoing negotiations to resolve a dispute do not normally serve to extend or restart the time limits.

In certain cases, a request for a new decision may revive time limits. In the past the Committee has concluded that a second decision amounted to a new, grievable decision where the reconsideration involved different reasons, where additional information was submitted that put the original decision in "a whole new light" or where the first decision was not final.

As each finding and recommendation is unique, where time limits may be a live issue, Grievors are encouraged to present all of the information available as well as any arguments as to why they consider that their grievance was filed within the time limits.

Section 47 of the Act

As I mentioned earlier, time limits can be extended, even retroactively by the Commissioner pursuant to section 47.4(1), where the Commissioner is satisfied an extension is justified. However, Level I Adjudicators do not often consider the issue of whether an extension of time is warranted. For this reason, if a Grievor may have a problem with time limits, it may be a good idea for them to make submissions as to why they should have an extension. This has the dual benefit of making sure all the arguments are on the file and ensuring that the Level I Adjudicator turns his or her mind to the issue.

The two keys to establishing that an extension is justified are making the case that the member intended to file the grievance within the limits and offering a reasonable explanation as to why it was not presented within the time allowed. If the Committee cannot find evidence of an intention to meet the time limits and reasons for the failure, a recommendation to extend is significantly less likely. In the past, recommendations to extend the time to file a grievance have been made in a variety of circumstances, such as, where unreasonable Force delays made the extension equitable; where significant confusion and misunderstanding have occurred in the administration of the grievance by the Force; where the Force leaves the impression that the decision is provisional or not determinative; where the advice or information given by the Level I Adjudicator related to a Grievor's Level II review rights is confusing or misleading and where the failure to file within the time limit was not within the Grievor's control.

As well, if a case could serve as a test case or it would be in the interests of all parties to have the matter decided on the merits or there would be a significant impact of a merits decision, either for the Grievor personally or on the Force as a whole, the Committee may recommend to the Commissioner that he extend the time limits.

The Committee's website includes additional information on time limits and standing. We have several papers on these topics in the "Articles of Interest" section and we have a searchable database which includes a summary of every Finding and Recommendation ever issued by the Committee. In addition, you or your members are welcome to contact Committee staff to receive the full, redacted, version of any Finding and Recommendation.

Disclosure

The Committee also sees a third preliminary issue on a fairly regular basis, disclosure of documents. Section 31(4) of the Act mandates that a Grievor must be provided with any information under the control of the Force that is relevant and reasonably necessary to properly present a grievance.

Under the Commissioner's Standing Order on Grievances (section 8), certain information is excluded from disclosure: specifically information injurious to the defence of Canada or the prevention of hostile activities and information injurious to law enforcement.

Initially, it is up to the member to establish that the documents being sought are relevant and reasonably necessary to present the grievance. However, the Committee has held that this burden is not a heavy one. Once a basic case for disclosure has been made, the burden will shift to the Respondent to explain why the information should not be disclosed. The fact that a particular document is not in the control of the Respondent or that it was not considered by the Respondent in making the decision grieved is not a reason to refuse disclosure.

Similarly, the Committee has been clear that access to information and privacy laws do not bar disclosure. "Make an access request" is not an appropriate response to a request for information under section 31(4). Section 8 of the Privacy Act provides that disclosure of personal information may be allowed where it is sanctioned by an act of Parliament or regulations. Section 31(4) is that sanction. However, it is important to note that the Force should still be respectful of privacy, and therefore where personal information is not necessary to the presentation of the grievance, it may be edited or deleted from the document.

From a practical point of view, Grievors will not likely be successful if they file overly broad requests. For example, in a recent case before the Committee the Grievor asked for "any further information that will support my case...". The Committee found that this was too vague a request for the Force to be expected to act on.

However, the Committee has been equally clear that where a large amount of information is requested, and some of it appears relevant, the Force should address the request for information in a manner that leaves the member with the impression that the Force is being mindful of its obligation under s.31(4).

Where a Respondent refuses disclosure or ignores the request for disclosure, the Grievor can request that the Level I Adjudicator make a preliminary ruling on the issue. Grievors are not required to make their submissions on the merits until either they have received the disclosure they requested or a Level I decision denying disclosure has been issued. If a disclosure issue is examined by the Committee, it will look at it, did the failure to disclose create any procedural unfairness or result in the denial of natural justice? Grievors can and should make submissions specific to how the failure was prejudicial to their being able to make a full argument or the Committee may decline to recommend a remedy.

Again, the Committee's website includes an article on the issue of disclosure and the searchable database includes the cases where the Committee has discussed disclosure, if either you or your members need additional information.

Merits

Once it is determined that preliminary issues do not prevent the Committee from reviewing the merits of a matter, there are a significant number of substantive issues that the Committee deals with when reviewing grievances. By "substantive issues", I mean getting to the actual Force decision, act or omission being grieved and determining if the grievance should be allowed.

Some substantive issues tend to come up more than others. For instance, the Committee fairly frequently reviews grievances which pertain to whether or not members should be entitled to Fore-paid legal assistance because their work has caused them to have to testify, or to answer to criminal charges for example. The Committee also frequently deals with grievances which involve harassment. Another example of common grievances referred to the Committee are those involving travel claims.

I'd like to go over a few of the issues we deal with when reviewing grievances in those three areas, to give you a better idea of the considerations that go into finding whether or not Force decisions, acts or omissions are wrong and whether grievances should be allowed.

Legal Fees

Treasury Board's Policy on the Indemnification of and Legal Assistance for Crown Servants states that it is government policy to authorize the payment of legal assistance to Crown servants in certain circumstances. Where, for instance, members are required to appear before an inquiry, when they are sued, when they are charged with an offence, or when they face other sufficiently serious circumstances, they may be provided with such legal assistance as long as two conditions are met: (i) First, they must have acted honestly within their scope of duties; and, (ii) they must have met reasonable departmental expectations.

Grievances before the Committee which involve the interpretation and application of this policy will often raise the question of whether these two conditions have been met. For instance, in G-358 the Grievor and members of his unit were advised that they could be required to work during the evening or early the next morning out of town, on short notice. As instructed, the Grievor took his police vehicle home with him. He placed his overnight bag, firearm, equipment and files in the police vehicle to ensure that he could quickly assume duty if necessary. Although there was a lock box for firearms installed in the vehicle, the firearm was left in an unlocked bag in the locked vehicle.

On his way home that evening, the Grievor stopped at a Curling Club where he had a curling game, and he left the vehicle in the parking lot. While he was participating, his police vehicle was broken into, and the firearm, ammunition, special equipment and files were stolen. They were later recovered but most of the items had been badly damaged by fire.

The local Police Force investigated the matter and the Grievor was charged with two counts of unsafe storage of a firearm contrary to Section 86(1) of the Criminal Code. He requested payment at public expense of the legal fees for his defence of the criminal charges. The Force denied his request, finding that his actions were not consistent with those of a reasonable person acting with a reasonable standard of care, and thus had not met departmental expectations. The grievance was denied at Level I.

The Committee noted that the "scope of duties" part of the test would be met as long as the member's actions were intended to be in furtherance of the Force's work. In this case, one could argue that being ready to work on very short notice and possessing the police vehicle, the firearm and the ammunition was in furtherance of Force work, and therefore within the scope of duties. However, the Committee indicated that it did not have to reach a conclusion on this point since the other part of the test had not been met.

Indeed, the unsafe manner in which the Grievor had stored the firearm and ammunition did not meet "reasonable departmental expectations". The Committee indicated that in assessing this part of the test, one must analyse the actions of a member as against a standard of what a reasonably prudent and diligent person would think or do. In this case, the Grievor unsafely stored the firearm and ammunition in the police vehicle, and policies specific to his unit clearly stated that firearms left in a police vehicle had to be stored and secured in the vehicle gun safe. Further, the Committee noted that the Grievor had entered a guilty plea to the charge of careless storage of a firearm under the Criminal Code. As well, he had admitted before an Adjudication Board established under Part IV of the Act that his actions in this matter amounted to disgraceful conduct. The Committee observed that a member could not be considered to have met reasonable expectations of the Force if the member's actions were found to have violated the Force's Code of Conduct. The Committee recommended that the grievance be denied, and the Commissioner agreed with the Committee's findings and recommendation.

Harassment

Harassment is frequently at issue in grievances before the Committee. There are two ways in which harassment matters are presented in grievances. In some instances, members use the Part III grievance process to allege that conduct amounting to harassment has taken place. In these cases, the act, omission, or decision being grieved is the alleged harassment itself, and the Respondent is the alleged harasser.

Harassment matters also emerge in grievances when a member is dissatisfied with the way a complaint presented pursuant to policy has been treated. Most often, this type of grievance alleges that an investigation should have taken place but did not, or that the investigation that did take place was somehow deficient, or that the decision reached as a result of the investigation was wrong. In some of these cases the Grievor will be the alleged harasser, and in others, the complainant. These types of grievances related to harassment often raise procedural issues which pertain to the interpretation of the Treasury Board policy on the Prevention and Resolution of Harassment in the Workplace ("TB Policy") and the RCMP's own internal harassment policy.

The TB policy has been in effect since 2001. It is the overriding policy when it comes to harassment issues. The Force's own policy on the Prevention and Resolution of Harassment in the Workplace, can be found in the RCMP Administration Manual ("Force policy").

The TB policy sets out the broad principles that govern the way a harassment complaint is to be treated. It indicates to whom a complaint must be presented, and how it must be treated once received. The Force policy provides more specific steps as they pertain to the RCMP context. However, if there is a contradiction between the two policies, the TB policy prevails. There have been cases where the Committee has raised questions as to whether a particular version of the Force policy improperly contradicted the TB policy. For instance, in G-378, the Force policy applicable at the time called for an investigation only if the harassment was considered by the manager to be severe enough to constitute disgraceful conduct. The Committee observed that this, in effect, would allow a supervisor to find that a matter is related to harassment, yet decline to initiate an investigation if it is determined that the harassment is not severe. Such a provision was contrary to the TB policy, which outlines the only two situations in which delegated managers do not order investigations: (a) where a complaint is not related to harassment, or (b) where the delegated manager is satisfied that they have all facts and parties have been heard, and other avenues for resolving the issues have not been successful.

Among the important milestones present in the TB policy is, on the one hand, the requirement for a determination to be made as to whether the conduct alleged is related to harassment. If a matter cannot be characterized as related to harassment, the complainant and respondent must be so informed and the complainant must be advised of other possible ways of resolving the issue. On the other hand, if a complaint is related to harassment, avenues of resolution, including mediation, must be examined. If the matter is still not resolved, an investigation must be launched unless the delegated manager is satisfied that he or she has all the facts and that the parties have been heard.

Findings and recommendations issued by the Committee often examine whether decision-makers have properly followed these steps set out in the TB policy.

For instance, in G-367, various incidents occurred which prompted the Grievor to present a harassment complaint. In the first incident, the Force had sent two high ranking members to investigate a complaint that the Grievor's dog was barking, and those two members had questioned several of the Grievor's neighbours. In a second incident, a Tim Horton's job application was placed in the Grievor's mail slot. Subsequently, an e-mail was distributed to all sections of the detachment reminding members that harassment would not be tolerated. However, the Grievor's name was mentioned in the e-mail. It was further alleged that some unidentified supervisors had found the incident to be funny. In addition to these two previous incidents, someone at the detachment had circled a picture on a Missing Women's poster and placed the Grievor's name beside it.

In response to the Grievor's complaint, the Detachment Noncommissioned Officer in Charge ("Respondent") asked the Division to investigate both the job application incident and the Missing Women's poster incident. When the Division refused to investigate because the alleged harasser(s) had not been identified, the Respondent advised the Grievor that he had decided to not attempt to find the person responsible as that would be neither productive nor positive for the morale of the unit. The Respondent emphasized that several messages had been sent to all employees advising that harassment would not be tolerated. As for the part of the Grievor's complaint relating to the dog barking investigation, the Respondent took no action.

The Grievor grieved the Respondent's decisions pertaining to the complaint. The grievance was denied at Level I. The Adjudicator found that there had been no harassment in the way the dog barking complaint was investigated. The Adjudicator also determined that although the Grievor's name should not have been circulated with regards to the Tim Horton's application incident, there was no intentional attempt to humiliate the Grievor by doing so. Management had otherwise taken the complaint seriously and tried to stop any future repetition. Finally, the Adjudicator found that the Respondent's actions in dealing with the Missing Women's poster incident were satisfactory.

The Committee disagreed with the Level I Adjudicator, raising several concerns with the way that the harassment complaint had been dealt with. First, the Committee expressed a concern regarding the appearance of conflict of interest of the Respondent handling the harassment complaint. The Committee observed that the Respondent should have referred the matter to another officer outside the detachment because he had previously been the subject of a harassment complaint laid by the Grievor.

The Committee emphasized certain steps that need to be taken under the TB policy when a harassment complaint is presented. These included: (i) the screening and acknowledgement of the complaint; (ii) the review of the complaint and the seeking of additional information if necessary to determine if the allegations were related to harassment; (iii) mediation or the launching of an investigation if the allegations were related to harassment, and; (iv) a decision, when all the information was available. Throughout the process, the delegated manager had the responsibility to keep the parties informed and to respect to duty to be fair.

The Committee then reviewed the way in which the specific incidents were dealt with. There was no indication that the dog barking complaint had been reviewed, nor was there any mention of why it had not been investigated. The Committee observed that the Respondent had acted appropriately in ensuring that staff were advised of zero tolerance with regards to the job application and Missing Women's poster incidents, and that it was open to him to decide not to deal with these aspects of the complaint since the identity of the alleged harassed was unknown. However, the Respondent had failed to address the Grievor's complaint that unidentified supervisors found the job application incident to be funny, nor had he addressed the concern that the Grievor had been named in the subsequent memo that had been circulated.

The Committee recommended that the Commissioner allow the grievance and apologize to the Grievor for the fact that her harassment complaint was not properly dealt with. However, given the passage of time, the Committee did not recommend that the matter be sent back to be properly dealt with according to TB and RCMP policies.

A failure to respect provisions in the TB policy were also apparent in G-378, where the Grievor alleged that she had been called into a supervisor's office and spoken to in a loud and threatening manner. A second supervisor was allegedly present in the room "glaring" at the Grievor. The Grievor submitted a formal harassment complaint to the Officer in Charge ("Respondent") broadly outlining what had been said.

In response to the complaint, the Respondent told the Grievor by telephone that he had discussed the complaint with the District Commander ("DC") and others, who included one of the alleged harassers, and that he had concluded that the allegation involved a workplace conflict matter. He indicated that as a result, he would not proceed any further with the formal complaint. It appears that neither the Respondent or the DC took any further action on the complaint.

The Grievor presented a grievance at Level I, arguing that her formal complaint should have led to an investigation. She also took the view that it had been an error to categorize her complaint as "workplace conflict". The grievance was denied at Level I for lack of standing.

The Committee found that the Respondent had taken none of the steps required by Treasury Board policy. He had given no reasons for his decision that the complaint was about workplace conflict and not harassment. The extent of his preliminary review was to have a discussion with one of the alleged harassers and on that basis, to decide not to initiate an investigation. The Committee noted that this process violated the duty to act fairly, as one party was heard and the Grievor was not given a chance to respond to what the alleged harasser had said. Further, the Committee found that the categorization of the alleged conduct as being related to workplace conflict, and not harassment, was an error. The Grievor's allegation, on its face, would constitute harassment if founded, given that there were threats and intimidation alleged. Finally, even if the conduct could be characterized as workplace conflict, the Respondent would have had to inform the Grievor in writing of this determination and re-direct her to an appropriate avenue of recourse or suggest other means of resolving the issue.

As the alleged incident of harassment had been fairly recent, the Committee recommended to the Commissioner that he allow the grievance and order that the file be returned so that the harassment complaint can be dealt with by a different decision-maker according to the applicable TB and RCMP policies. The Committee also recommended that the Commissioner order that the Respondent and DC receive training on proper procedures for dealing with harassment complaints.

Travel

An interesting issue that has come to light in the review of travel claims, is that of the confusing interaction between various policies which govern the area. There is a broad, overarching policy on travel that applies to the RCMP and also to the rest of the Federal Public service, the Treasury Board Travel Directive ("TBTD"). The most recent version of this policy became effective on October 1, 2002.

There are also Treasury Board Minutes ("TBMs"), which were adopted in the early 1970s and apply only to the Force. They outline certain exceptions which have been made for the RCMP in certain areas regarding travel. They appear to still be in effect, as there is no indication that they have been revoked. Finally, there are provisions in the RCMP Administration Manual Chapter VI.I. ("Force policy") which also govern travel.

In recent Findings and Recommendations, the Committee has examined the order of precedence that applies when interpreting these various documents. The Committee has indicated that if there is any discrepancy between the TBTD and the TBMs, the TBMs govern. As for the Force policy, it has to accord with what is set out in both the TBTD and TBMs. Where it does not, the Treasury Board documents prevail.

It is sometimes a difficult undertaking to decipher what rule applies since, in some instances, policy is not clearly worded. At other times, there are inconsistencies between the documents.

G-371 provides a good example of the complexities that can exist when reviewing a grievance pertaining to travel and in which all three policies are at issue. In that matter, the Grievor was seconded on a daily basis to Provincial Court Duty. In the course of a typical day, he was picked up by Sheriff's staff in the morning, and the Sheriff's staff would decide when, during the day, he could have his meal. The Grievor submitted claims for lunch meals, which his supervisor certified as reasonable. However, the claims were denied by the Respondent based on the rationale that the Grievor was not on "travel status" at the time, and that he was expected to provide his own mid-shift meals.

His grievance was denied at Level I on timeliness. The Committee recommended that even though the grievance had not been presented on time, the Commissioner should extend the Level I time limit retroactively.

With regard to the merits, the Committee observed that the Respondent's denial had erroneously relied on the TBTD which states that members are only on "travel status" when they are absent and further than 16 kilometres from both home and workplace. Rather, the Force should have applied the applicable TBM, which refers to the possibility of being on travel status for less than a day where the member was absent from the worksite on government business. Thus even if they were within 16 kilometres of the worksite, they could still be considered to be on travel status when the applicable TBM was applied.

However, the applicable TBM also states that a member on travel status of less than a day is normally responsible for meals unless there are exceptional circumstances which preclude the member from taking a midshift meal. The Committee also noted that Force policy added to the direction of the applicable TBM by indicating that circumstances such as delayed meals and difficulty to preplan were not grounds for reimbursement. In the end, members had to plan and pay for their own midshift meals when on travel status of less than a day, except if an event occurred that made it impossible for the member to have a meal as planned and required the member to pay for a meal.

It should be noted that in G-375 and G-376, the Committee has recommended to the Commissioner that he order a review of all Treasury Board and RCMP policies related to RCMP travel. The purpose of this review would be to examine the TBTD, TBMs and Force policy, in order to confirm the status of the TBMs, establish a clearer framework for assessing claims related to RCMP travel, and recommend changes to the applicable policies to address all contradictions and inconsistencies.

But grievances pertaining to travel can go beyond meal claims. Quite recently, the Committee has issued findings and recommendations in several of the G8 cases that have come before it. Almost all of the grievances referred to the Committee were travel related. While there were common themes in all of them, there were also differences; either in procedural issues; the travel conditions; or in the evidence provided by the parties. As well, many of these grievances raised issues pertaining to remedies, or the limits to remedies under the TBTD or the RCMP Travel policy. In G-390, the Grievors had been stationed in trailers during the G8 Summit in 2002. All grieved alleged substandard meals and accommodations. They also requested disclosure of a number of documents that were related to Health and Safety. The Level I Adjudicator was asked to rule on disclosure on these documentation requests, but instead denied the grievances on a number of grounds: standing, time limits and merits. The Committee disagreed with this approach, noting that disclosure issues should generally be addressed ahead of time. The Committee recommended that the matter be sent back to Level I on the matter of disclosure. The Committee also commented on the application of Treasury Board and RCMP policies on travel. The Committee noted, by way of comment, that the Treasury Board policy requires that accommodation be comfortable and of good quality. However, it was also noted that the same policy, as well as the RCMP Travel Policy only provide remedies where there are out of pocket expenditures.

In another G8 case, G-389, where the issue of extensive health and safety disclosure had not been raised, the member nonetheless described the living conditions at the G8. These conditions included inadequate cleaning of the trailer, shower facilities, and problems with the food. The Respondent had not disputed any of the specific claims made by the Grievor. Because the Grievor had not proven that he made any out of pocket expenditures the Committee found that there were no remedies under the TBTD or the RCMP policies. However, the Committee nonetheless recommended that the Commissioner acknowledge that the conditions of the camp did not meet Treasury Board standards. The Committee also noted that in other grievances related to the G8 Summit, some Grievors are requesting that the Commissioner order a review into the planning and decision-making surrounding accommodation and meal services for the event. If the Commissioner were to make such an order, I recommended that the Grievor in this case be given the opportunity to participate and be heard.

CONCLUSION

These are just a few examples of the cases that come before the Committee. I have not gone into detail about discipline appeal reviews under Part IV, or discharge and demotion appeal reviews under Part V, but these also occupy a fair component of our time.

As I mentioned above, our goal is to contribute to positive labour relations in the RCMP through the work that we do. We understand that to do this, we must uphold our independence, apply the rule of law, and be sensitive to the high demands placed on RCMP members and the very important work that they do.

I should add that all of this work doesn't keep us from making sure that we remain current on the evolution of legal principles which may impact the way we issue findings and recommendations. Staff of the Committee attend training and conferences throughout the year to ensure that they remain up to date in a variety of areas including administrative, labour relations, discipline and human rights law. As well, as I have already mentioned, we greatly benefit from our outreach activities with our various stakeholders. These events allow us to

continually learn about the work done by members of the Force, and to exchange information on operations and processes relevant to our mandate.

I hope that this overview has been helpful and informative and I would invite any questions you might have.

Date modified:

2015-03-23