Grievance Case Summary - G-267

In the early 1990s, the Grievor was injured in a motor vehicle accident which left him with nerve damage in the area of his spine. His condition deteriorated over time to the point that he had to stop working altogether in October 1996. He has not been able to return to work since that date.

The Grievor's medical profile was reviewed by the Health Services Officer who concluded that he no longer met the minimum medical requirements for a General Duty Constable and that his 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, render him "unable to physically restrain people ... unable to carry or drag heavy objects or push vehicles ... incapable of intense work for long periods as when on highway patrol or in other police vehicles [and] ... unable to chase persons to the point of apprehension." The Respondent then issued a Notice of Discharge.

In his grievance presentation at Level I, the Grievor argued that the decision to discharge him from the Force was unfair given that there were other disabled members with similar duty restrictions and yet who continued to occupy regular member positions. Also, he argued that there were positions for which he should have been considered. The Respondent disputed those contentions.

The Grievance Advisory Board ("GAB") recommended that the grievance be denied, for the same reasons as those mentioned in G-266. The Level I adjudicator accepted those reasons and denied the grievance.

On February 12, 2002, the ERC issued its findings and recommendations. 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.

On August 21, 2002, the Commissioner rendered his decision in this matter, as follows:

The Commissioner agreed with the ERC that the Grievor's request to undergo the PARE test was properly denied. As for the time taken to review the grievance, the Commissioner agreed with the ERC that such delays, even though they could be explained in this case, should be avoided. He pointed out that delays in disposing of grievances should decrease once the Grievance Process Improvement Project is fully implemented since adherence to strict administrative time lines will be required.

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 the legal obligations that apply to the RCMP. 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. Other considerations in the policing context include the uniqueness of the organization, its numerous and varied mandates, its highly dispersed employee population, the need to maintain a "critical mass" and the overriding duty to provide public safety and security as well as to ensure the safety and security of our regular members. 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.

The Commissioner considered the medical evidence on the record and the labour arbitration case Re Ball Packaging Products Canada Inc. and Can Workers Federal Union, Local 354 (1990), 12 L.A.C. (4th) 145 cited in Re Oxford County Board of Health and Canadian Union of Public Employees, Local 1146 (1999), 81 L.A.C. (4th) 268, in which the arbitrator found that where the medical findings indicated a total disability and unfitness to engage in any gainful employment, "... the only effective accommodation would be to negate any attendance at work... and that goes well beyond a reasonable accommodation to the existing handicap in the performance of regular work." In the Grievor's case, the same reasoning applied in that even with accommodation in a civilian member position, he could not be depended upon to perform any duties; it would still be necessary for the RCMP to waive the requirement that the Grievor be available to perform his required duties. In applying the Meiorin analysis, such a waiver would constitute an undue hardship upon the RCMP. Therefore, the Commissioner denied the grievance and ordered the discharge of the Grievor.