Discharge and Demotion Case Summary - R-003

An appeal was filed against the decision of a discharge and demotion board (the "Board") which directed that the Appellant be discharged from the Force because he repeatedly failed to meet the requirements of his position despite having been provided with reasonable assistance, guidance and supervision. The Appellant had been a member of the Force since 1992 and remained posted at the same detachment for his entire career. An initial performance appraisal in 1993 indicated that he was having some difficulty adjusting to the workload but his supervisor's overall impression of him was favourable. At the time, the Appellant's wife was suffering from chronic depression and often prone to bouts of violence. She committed suicide in January 1994 and the Appellant was then assigned to lighter duties until July 1995. A performance appraisal completed in February 1996 indicated that the Appellant was still having difficulty prioritizing his work due to poor concentration on his part. A new supervisor began closely monitoring his work and prepared a performance appraisal in April 1997 which stated that the Appellant was not meeting expectations and would have to make major improvements, particularly with respect to time management and conducting criminal investigations. Extensive direction was provided to the Appellant over the course of the next two years but the supervisor remained dissatisfied with his performance. As a result, in January 1999, the Appellant received a "Notice of Shortcomings" which provided him with some specific instructions on improvements that he would have to make. In June 1999, he was removed from duty. Discharge proceedings were initiated the following year.

The Appellant's evidence before the Board included the testimony of two psychologists who attributed his performance shortcomings to a mild depression that sacked his energy and made it difficult for him to concentrate on his tasks. The depression was brought about by the tragic circumstances of his wife's death and the stress of having to endure a difficult working relationship with his supervisor. They concluded that treatment could enable the Appellant to once again meet performance expectations but indicated that he should also be transferred to another detachment. One of the Appellant's colleagues testified that she found that their supervisor saddled them with a greater workload than other members and undermined their efforts to meet performance expectations. However, the Board concluded that the supervisor had made a sincere and ongoing effort to assist the Appellant in improving his performance. It stated that a transfer was not a viable option because the nature of the Appellant's shortcomings was such that he would not be able to meet performance expectations at other detachments either. The Board acknowledged that the Appellant had been suffering from depression but determined that this condition was not a major factor in explaining why his performance was unsatisfactory.

On appeal, the Appellant contends that the Board should have given greater weight to his psychological assessment and recognized that treatment for depression could bring about an improvement in his job performance. It is also argued that the Board should have recognized that the Appellant's performance had been considered satisfactory when it was assessed by previous supervisors.

The psychological evidence only establishes that depression was a factor influencing the Appellant's performance but not that treatment for that condition is likely to bring about a significant improvement in his ability to competently complete tasks that may be entrusted to him. Since the evidence establishes that the same performance shortcomings as those noted by the Appellant's most recent supervisor had been observed by previous supervisors, it was not unreasonable for the Board to find that the Appellant's depression was not the principal cause of his performance shortcomings. The evidence also supports the Board's finding that the Appellant received reasonable assistance from his supervisor. While the criticism that he received was sometimes very harsh, it was not unwarranted.

The appeal should be dismissed.

The Commissioner agreed with the findings and recommendation of the Committee and dismissed the appeal.

On April 28, 2004, the Commissioner ruled that the evidence showed that the Appellant simply did not perform at a level that could be expected of a constable with his experience. The Commissioner agreed that it had been well established that the Appellant's work performance was below standard and that evidence of his past performance clearly demonstrated his deficiencies. Accordingly, the Commissioner dismissed the appeal.

As a result of an application, by the Appellant, for judicial review of the Commissioner's decision, it was discovered that a book of exhibits from the Board's hearing was not before the Commissioner at the time he made his decision.

Although at the time of his decision the content of the exhibits was known to the Commissioner through extensive quotation in the External Review Committee's report and through the transcripts of the hearing, the Commissioner determined that an error had occurred. Indeed, rendering a decision based on information, without having complete access to the exhibits, constituted an error of sufficient import to invoke the application of subsection 45.26(7) of the RCMP Act which gives authority to the Commissioner to rescind or amend his decision.

After reviewing the exhibits, the Commissioner was satisfied that his original decision to dismiss the appeal was the correct one.

Accordingly, the Commissioner confirmed his original decision and dismissed the appeal.