Discharge and Demotion Case Summary - R-007

The Appellant displayed certain strengths as a member. However, he had significant difficulties documenting his files and keeping up with tasks related to ongoing investigations. In an attempt to improve the Appellant's performance, the Force initiated a Performance Enhancement Process (PEP), which provided the Appellant with close supervision by S/Sgt. X over several months. During that time, S/Sgt. X provided written commentary in the Police Reporting and Occurrence System (PROS) directing the Appellant to address specific tasks. He held numerous meetings with the Appellant and shared strategies to address overdue tasks. The Appellant was also occasionally “benched”, meaning that he was taken off the call rotation while on shift so he would be able to work exclusively on outstanding matters. S/Sgt. X also offered to sit down with the Appellant on his own days off to help the Appellant. Despite this assistance, the Force concluded at the end of the PEP phase that the Appellant remained unable to perform his duties at a satisfactory level. The Respondent sought the Appellant's discharge through a Notice of Intent (NOI) to which was attached material outlining the Appellant's performance difficulties. A discharge and demotion board (Board) was convened to hold a hearing and consider whether the Appellant should be discharged. Prior to the commencement of the hearing, the Board allowed the Respondent to provide additional material in support of the Appellant's discharge. After a lengthy hearing, during which several witnesses, including the Appellant and S/Sgt. X testified, the Board rendered a brief oral decision ordering the Appellant's discharge. It later issued its written decision explaining in more detail its reasons for that order.

The Appellant appealed the Board's decision. He argued that the manner in which the Board had rendered it oral decision, one and a half hours after closing arguments had taken place, showed the Board had pre-judged the matter, resulting in a reasonable apprehension of bias. He also urged that the Board had improperly allowed the Respondent to submit additional materials in support of the Appellant's discharge before the hearing began. Finally, the Appellant argued that the Board had erred in deciding that he should be discharged, for three reasons. First, the Board had given insufficient weight to the Appellant's high workload and to problems with S/Sgt. X's supervision, which were significant factors explaining his inability to perform. Second, the Board had erred in finding that the Force had made reasonable efforts to move the Appellant to other duties in order to improve his performance. Third, the Appellant claimed that the Board's decision had been based on an insufficient and skewed sample of his work.

The ERC did not agree that the Board's actions had raised a reasonable apprehension of bias. Despite its relatively short final deliberations, the Board's actions over the course of the entire proceedings, including the last day of the hearing, supported a presumption that the Board had remained open-minded until the final submissions had been delivered and considered. The ERC also found that the Board's ruling to allow additional material to be tendered by the Respondent reflected a proper consideration of applicable statutory provisions. The ruling allowed for a thorough record in order to assess the Appellant's suitability for further employment, and it ensured this was done in a procedurally fair manner.

The ERC further determined that the Board had committed no reviewable errors in ordering the Appellant's discharge. First, its findings regarding the magnitude of the Appellant's workload were supported by the record, as was its finding that the supervision provided by S/Sgt. X was sufficient. Second, the Board had explained how it viewed the assistance given to the Appellant in three separate postings, the latter under S/Sgt. X's supervision, as reasonable efforts to help improve his performance. The evidence supported the Board's explanation of why it did not accept the Appellant's claim that he had requested to be removed from S/Sgt. X's supervision. Third, the ERC disagreed with the Appellant's suggestion that the sample of his work provided to the Board was insufficient and unbalanced. The Board's finding that it had received a comprehensive and thorough representation of the Appellant's work, including its positive aspects, was supported by the record. The Board explained how it had weighed the Appellant's strengths against his continuing difficulties, which it viewed as unsustainable and unacceptable by RCMP policing standards. The Board's findings in this regard reflected an assessment of the facts before it, which were owed deference absent a palpable and overriding error, and no such error was apparent in the record.

The ERC recommended to the Commissioner of the RCMP that the appeal be denied.

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

After graduating from Depot, the Appellant was posted to two different detachments in "X" Division from 2002 to 2007. The Appellant was transferred to another Detachment in July 2007. Although he displayed certain strengths as a member, the Appellant exhibited significant difficulties preparing and completing paperwork, conducting investigations, and assembling evidence and testifying in court.

In an attempt to improve his performance, RCMP management initiated a Performance Enhancement Process (PEP) placing the Appellant under close supervision. Throughout the PEP, the Appellant received supervision, support, and guidance. While noting some improvement during PEP, ultimately, the Appellant was found to be unable to perform his duties at a satisfactory level, resulting in a Notice of Intent to Discharge.

A hearing before a discharge and demotion board (Board) was held and after an 11-day hearing over the course of three months, the Board rendered a decision ordering the Appellant's discharge.

The Appellant appealed the decision arguing that the Board breached the principles of procedural fairness and failed to establish the ground of unsuitability as set out in section 45.18 of the Royal Canadian Mounted Police Act, RSC 1985, c. R-10, as amended prior to November 28, 2014 (RCMP Act).

The appeal was referred to the ERC for review, pursuant to subsection 45.25(1) of the RCMP Act. The Chairperson of the ERC recommended that the appeal be denied. The Commissioner was not persuaded that the Board breached the principles of procedural fairness or that it erred in finding the ground of unsuitability established. The appeal was dismissed.