Discharge and Demotion Case Summary - R-006

After her training at “Depot” and her six-month field training program, the Appellant held the position of patrolling and investigating officer in Detachment A. She was having difficulties with her performance, particularly with respect to case management and taking charge of situations. Her supervisors took certain steps to try to improve her performance, including holding several meetings to provide feedback and having her shadow another member. Once they had determined that her performance was still not satisfactory, an initial Notice of Intent to Discharge was served on the Appellant. However, this first discharge process was set aside, and the Appellant was assigned to Detachment B as a patrolling and investigating officer for four months in an attempt to improve her performance. The Appellant's supervisors in Detachment B provided her with assistance, including having her shadow another member for 11 shifts and sending her on patrols with other members. Ultimately the Appellant's supervisors decided that her performance remained unsatisfactory with respect to taking charge of situations and taking initiative.

Under sections 45.18 and 45.19 of the Royal Canadian Mounted Police Act (the Act), the Appropriate Officer served on the Appellant a Notice of Intent to Discharge on the grounds that she had repeatedly failed to perform her duties in a fitting manner despite reasonable assistance, guidance and supervision. The Appellant requested a review of her case by a Discharge and Demotion Board (Board). The Board held a hearing, during which several documents were admitted into evidence and several witnesses appeared. The Board found that the Appellant had failed to perform her duties in a fitting manner, pointing to the evidence indicating that the Appellant still had difficulty taking charge of situations and taking initiative. It also found that reasonable assistance, guidance and supervision and been provided to the Appellant. The Board rejected the Appellant's claim that she had not been impartially evaluated in Detachment B given that her supervisors and the member she had been assigned to shadow had been aware of the initial Notice of Intent to Discharge that had been served on her in Detachment A. The Board ordered the Appellant's discharge. The Appellant appealed the decision.

The ERC reviewed the Board's finding that the Appellant had been provided with reasonable assistance, guidance and supervision within the meaning of subsection 45.18(1) of the Act. The Board's decision on this very fact-specific issue may be set aside only if the Board has committed one or more palpable and overriding errors. The ERC concluded that there was ample evidence supporting the Board's finding that the Appellant's managers had provided her with reasonable assistance, guidance and supervision. This evidence included the comments entered in the Appellant's electronic records, multiple meetings with the Appellant to discuss her performance and provide her with feedback, formal job shadowing opportunities with various members and a transfer to a new detachment. The job shadowing opportunities provided to the Appellant constituted practical and concrete assistance. The Board's decision indicated that it had heard and considered the evidence presented to it and that it had reviewed the discretionary power exercised by the Appellant's supervisors in light of the obligations set out in subsection 45.18(1) of the Act rather than simply relying on their judgment. The Board did not commit any palpable or overriding errors in its reasons, its assessment of the relevant evidence or the conclusions it reached in light of the evidence.

The ERC reviewed the Appellant's claim to the effect that the disclosure of the initial Notice of Intent to Discharge to certain members had tainted her assignment to Detachment B. It was appropriate that the information contained in that notice, describing her performance difficulties in Detachment A, be provided to the Appellant's managers responsible for providing her with assistance in Detachment B. However, the disclosure of that notice to the member the Appellant was shadowing in Detachment B was problematic, given that it contained personal information regarding a disciplinary investigation involving the Appellant's integrity and specific details regarding her performance difficulties. This disclosure to a colleague designated to assist the Appellant, rather than supervise her, was not fully compatible with the provisions of the Privacy Act or the RCMP's internal policies authorizing the communication and use of personal information in certain defined circumstances. However, this disclosure had no determinative impact on the final decision to recommend the Appellant's discharge. Furthermore, the Board did not commit a palpable error in rejecting this claim.

The ERC recommended that the appeal be dismissed. It also recommended that the Commissioner of the RCMP remind supervisors of the need to protect sensitive personal information and ensure that documents containing such information be communicated only with other supervisors responsible for managing the member concerned.

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

[TRANSLATION]

In a decision rendered on August 23, 2016, Commissioner Robert W. Paulson accepted the findings and recommendations of the ERC and dismissed the Appellant's appeal against the decision of a Discharge and Demotion Board (Board) upholding her discharge on the ground of unsuitability. First, the Commissioner rejected the Appellant's arguments to the effect that the Board had erred in finding that the Appellant had been given reasonable assistance, guidance and supervision in an attempt to improve the performance of her duties. The Commissioner reiterated that subsection 45.18(1) of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (Act), merely requires managers to give a member reasonable assistance to improve the performance of his or her duties. In this respect, the Board reasonably weighed the evidence and did not err in finding that the assistance offered to the Appellant was sufficient within the meaning of the duty set out in subsection 45.18(1) of the Act. Next, the Commissioner found that the inversion of the letter of expectations and the performance agreement in the process of handling the performance issues did not vitiate the process or render it unfair. The Commissioner also held that the Board did not make a palpable or overriding error in its assessment of the quality of the job shadowing opportunities provided to the Appellant or in its conclusion that the Appellant's managers had reasonably exercised their discretion in their choice of methods for helping the Appellant improve her performance. Similarly, given the Appellant's deficiencies, it was reasonable to require that she patrol on her own that and that she simulate a busier environment so that her performance could be measured in a regular work context.

Next, the Commissioner agreed to consider the Appellant's argument, raised for the first time on appeal, that the personal information regarding her disciplinary and service records was disclosed to her mentor in a manner inconsistent with the applicable policy. The Commissioner found that the Appellant's managers required access to her information to be able to meet their obligation under subsection 45.18(1) of the Act. However, this information should not have been disclosed to her mentor. Nevertheless, the Commissioner held that the Board had not erred in finding that the Appellant's evaluation had been unbiased and conducted in good faith. In summary, the Commissioner dismissed the appeal and upheld the Board's decision to discharge the Appellant on the ground of unsuitability. The Commissioner also emphasized the importance of protecting the personal information of RCMP members and employees and ensuring that it be disclosed only to those managers responsible for managing the member or employee in question.