Grievance Case Summary - G-233

The Grievor submitted a grievance against a Notice of Medical Discharge. She argued that the bias of the Health Services Officer (the "HSO") had led to the medical discharge process, that the Medical Board's findings had been wrong and had been based on an obsolete Task Bank and that the Force had failed to make reasonable attempts to find her an alternate position.

The Grievance Advisory Board (the "GAB") recommended that the grievance be denied, finding that the Grievor had been treated fairly in the medical discharge process and that there was no evidence that the HSO had changed her medical profile because of her harassment complaint against him. The Level I adjudicator agreed, and denied the grievance.

On July 16, 1999, the ERC issued its findings and recommendations. The Committee found that the process of determining whether a member ought to be medically discharged could not be reduced to a mere computation of the amount of time the member has been absent from work. In this case, the Medical Board report suffered from critical failings. Firstly, it did not identify the medical condition from which the Grievor suffered. This was significant as the record did not clearly indicate why the Grievor had been off-duty sick for such a long period of time. It failed to establish a basis for finding that the Grievor's condition, whatever it was, was of a permanent nature. Thirdly, the report was based on medical evidence that was not current. Fourthly, it was based on an outdated Task Bank. The Committee found that the Medical Board report did not contain a sufficiently detailed analysis from which the Appropriate Officer could have made a proper, well-informed decision to medically discharge the Grievor. Therefore, the grievance should be upheld.

The HSO's involvement in the Grievor's medical profiles was inappropriate, given that the investigation of a harassment complaint had just recently concluded that a "personality conflict" existed between himself and the Grievor. While the HSO was not a member of the Medical Board, it was clear that the Medical Board based its recommendations, at least in part, on his medical profiles, and the process was tainted by his involvement.

The Committee found that Force policy had not been followed in that the Grievor was never given a staffing interview. The Force's argument that there weren't any administrative positions open for the Grievor, and that she had to be a fully operational constable in order to be considered for any position, appeared to be inaccurate in light of the evidence that another member, with a worse medical profile than the Grievor's, had worked in an administrative position.

The Committee recommended that the Commissioner allow the grievance, that a new medical board be convened and that, in the event that the Grievor was found not to be able to continue as an operational police officer, a proper procedure be undertaken to attempt to find her another position within the Force.

On November 25, 1999, the Commissioner rendered his decision. His decision, as summarized by his office, is as follows:

The Commissioner denied the grievance and medically discharged the Grievor. The sufficiency of the medical board's report was considered. The Commissioner commented that he still agreed with the role of medical discharge boards as set out in ERC G-85; he found, however, that considering the current medical discharge process guidelines, the Appropriate Officer lacks the expertise to review and reassess medical information relating to limitations and restrictions and that, for reasons of confidentiality, medical information is not required in the medical board's report. He stated that the medical review board's report should enable the Appropriate Officer to make a reasoned determination without jeopardizing the confidentiality of medical records.

The Commissioner viewed the issue before the decision maker as whether the member could reasonably be expected to return to operational duty. The medical board was to make that determination based on the medical evidence before it. The board fulfilled its function according to the medical discharge board guidelines and provided sufficient limitations to allow the Commanding Officer to make an informed decision.

The Commissioner found that the differences between the 1992 and 1993 task banks were minuscule. He considered that use of the 1992 task bank was not an error in process and did not invalidate the medical discharge process.

The Commissioner felt strongly that the integrity of the HSO was questioned but without supporting evidence. He found nothing to suggest the HSO was not professional with respect to the Grievor's medical profile.

The Force's efforts to find another position for the Grievor, especially the failure to interview her, were questioned. According to the Commissioner, the issue for the Grievor was permanency and long term prognosis for a return to operational duties. Whether this test was followed in an unrelated case was immaterial. The Commissioner found that whether or not the Grievor had an interview as to her potential placement did not render the process void.

The Commissioner concluded that, on balance, errors in the process did not cause the outcome to change and that the decision to discharge the Grievor was ultimately the right one.