Grievance Case Summary - G-477

The Grievor moved to a satellite detachment in 1994. He then experienced the effects of two developments which unfolded over several years. First, he could not reside near his office with his eventual common-law spouse. This was partly so because the Force possessed limited properties in the area, and would not commit to letting him cohabit in one. Second, he suffered debilitating back pain which he believed the Force minimized. For instance, the Respondent indicated in a Personnel Interview Form (Form) that the Grievor's back pain might jeopardize his future in the Force, and that the RCMP would not support measures to accommodate it.

The Grievor filed a grievance. He complained about comments on the Form. He also asserted that the Force discriminated against him on the grounds of marital status and disability. A Level I Adjudicator denied most of the grievance as out of time, but held that the comments on the Form were grievable as they had been contested in time. The Grievor requested that the ERC review that preliminary decision. The Force instead appointed an internal Level II Adjudicator to do so. That Adjudicator denied the challenge on the basis that it, in and of itself, was untimely. The Grievor advanced what remained of his grievance. It was partly allowed at Level I. He re-submitted the matter to Level II and revisited past arguments which had been deemed untimely.

The ERC found that the Grievor was entitled to file a written objection to the Force's failure to refer the Level I preliminary decision to the ERC. It also found that the Force should have notified the Grievor that it was not going to grant his request to send the matter to the ERC, listened to the Grievor on the issue, and given reasons for the non-referral. However, the ERC accepted that the Level II internal decision represented the final level in the grievance process. The ERC therefore had no legal authority to reopen it. The ERC observed that the RCMP Act provided two other avenues for altering the Level II decision. One was a request for rescission or amendment, under s.32(3). The other was a timely judicial review application to the Federal Court of Canada, under s.32(1). Neither option appeared to have been exercised.

As a result, the ERC found that it could only address arguments about comments on the Form. It found merit in the Grievor's position in that regard. It noted that the Canadian Human Rights Act (RCMP) rendered it discriminatory to refuse to continue employing an individual because of a disability, unless the refusal was based on a bona fide occupational requirement; and, that disabled employees shall be accommodated to the point of undue hardship. It found remarks on the Form to be inconsistent with the RCMP. This was so because they could be reasonably construed to mean that the Force would not continue employing the Grievor, if he had a work-limiting disability, without first attempting to accommodate him to the point of undue hardship.

The ERC recommended that the Commissioner of the RCMP allow the grievance in part. It further recommended that he apologize to the Grievor for the Respondent's placement of certain statements on the Personnel Interview Form.

The Grievor withdrew the grievance before the Commissioner had an opportunity to render his decision.