Grievance Case Summary - G-266

During a firearms qualification shoot, the Grievor aggravated an injury to her right shoulder and, as a result, had to undergo surgery on two occasions and she was absent from work the majority of the time during the next two years. Furthermore, she was unable to perform any operational duties during that time. The Grievor's medical profile was reviewed by the Health Services Officer who concluded that she no longer met the minimum medical requirements for a General Duty Constable and that her condition was unlikely to improve for the foreseeable future. As a result, the Force undertook the process of determining whether the Grievor should be medically discharged. After making enquiries of all divisions, it determined that there were no available positions within the Force for which the Grievor was sufficiently qualified. A medical board concluded that the Grievor's disability would, for the foreseeable future, limit her "ability to physically apprehend individuals and to demonstrate the necessary restraint in the use of her firearm under these circumstances." The Respondent then issued a Notice of Discharge.

In her grievance presentation at Level I, the Grievor did not take issue with the medical board's conclusions but insisted that there were other regular member positions to which she could have been appointed. The Respondent disputed that contention and commented that the Grievor did not have enough experience to be able to move into another regular member's position.

The Grievance Advisory Board ("GAB") recommended that the grievance be denied. Relying on the decision of the Supreme Court of Canada in Ontario (Human Rights Commission) v. Etobicoke (Borough) [1982] 1 S.C.R. 202 and the ERC's findings and recommendations in file 2000-94-001(G-173), the GAB concluded that the Force was not required to find alternate employment for a member who, because of a disability, was no longer able to meet the minimum medical requirements for general duty constables. The Level I adjudicator denied the grievance.

In both cases (G-266 and G-267), the Committee recommended that the grievance be allowed. The Committee pointed out that the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Committee) v. BCGSEU, [1999] 3 S.C.R. 3 (the "Meiorin" decision) requires of the Force that it be able to demonstrate that it would experience an undue hardship if it had to accommodate the Grievor. No such evidence was presented. The obligations that the Force has imposed upon itself to assist disabled members in securing alternate employment within the Force fell well short of what the Meiorin decision requires.

The Commissioner agreed with the ERC that nothing prevented the Grievor from choosing to be represented by outside counsel during the grievance process and that once the Level I adjudicator had confirmed that representation, he should have accepted counsel's submission. As for the delay in completing the grievance process as a result of the Force acting on the job-search grievance presented after service of the Notice of Intent to Discharge, the Commissioner also agreed with the ERC's finding. The Grievor had no standing to present the grievance at that time.

The Commissioner carefully examined the issue of medical discharge and the RCMP's duty to accommodate medically-restricted regular members. A review of RCMP policy revealed that efforts have been made to integrate aspects of accommodation into our processes, but those efforts do not yet meet all the legal requirements. The Commissioner outlined principles of accommodation for members in front-line and non front-line duties that should be researched and integrated into revised policy to meet the requirements of the Canadian Human Rights Act and the Meiorin decision with respect to discrimination against disabled employees. Issues related to "critical mass", the uniqueness of the organization, its numerous and varied mandates, its highly dispersed employee population and the overriding duty to provide public safety and security as well as to ensure the safety and security of our regular members were also important considerations pointed out by the Commissioner. He also indicated that the development of policy should include consultations with DSRRs and Labour Canada regarding accommodation in front-line operational positions to ensure compliance with the Canada Labour Code as well as the examination of positions such as victim services, drug enforcement, school liaison, etc. to determine whether they should be considered front-line operational positions. In addition, the Commissioner agreed with the ERC that relevant information concerning the accommodation of disabled members should be retained and disclosed to grievors without revealing personal and confidential medical information.

Based upon his review of the record, the Commissioner concluded that further efforts should be made to accommodate the Grievor following a revised process consistent with Meiorin. While retaining jurisdiction, the Commissioner remitted the matter back to the Officer in charge, Human Resources, in the Region, for six months with directions to oversee the implementation of procedures to accommodate the Grievor consistent with principles outlined in the Commissioner's decision. At the end of the six-month period, a report and all relevant material will be returned to the Commissioner who, after providing the Grievor the opportunity to make submissions, will adjudicate the grievance.

The grievance against administrative discharge on medical grounds was upheld. The Commissioner noted that the member was now in a position which had been "re-bundled" to meet her medical restrictions. However, the member had expressed the view that since the new arrangement did not provide her with job satisfaction and promotion opportunities, and since it did not maintain dignity in the work she performed, it did not satisfy the duty to accommodate. The Commissioner took the view that the member had been properly accommodated through a process consistent with the RCMP national policy on the "Duty to Accommodate Members with Disabilities," which was developed as a result of the directions he had issued in August 2002.