Grievance Case Summary - G-284-85

The two grievances concern a change made to the Grievor's medical profile by the Health Services Officer which had the effect of imposing significant duty restrictions and a decision to undertake medical discharge proceedings against him. The duty restrictions were the result of a medical examination which determined that the Grievor's uncorrected vision no longer met the minimum standard for general duty constables. The Level I adjudicator concluded that the grievance against the change to the medical profile was untimely because it had not been filed within 30 days of the Grievor learning of the change. The adjudicator also concluded that there was no right to grieve the decision to initiate the medical discharge process because that decision did not necessarily signify that the Grievor would be discharged. In his Level II submissions, the Grievor argued that his grievance against the change to his medical profile was timely because he acted within 30 days of receiving a copy of that profile, which is when he learned for the first time that he was restricted from performing any operational duties. He also maintained that his grievance against the decision to initiate the discharge process was directed at the Force's failure to determine whether it could accommodate his disability beforehand.

There is not a clear indication that the information initially conveyed by telephone to the Grievor about the changes to his medical profile was sufficient to enable him to fully appreciate what was the nature of the duty restrictions which were being imposed. His grievance against those changes was timely because he acted as soon as he received complete information in that regard. As for the other grievance, it can be heard because it pertains principally to the Force's ongoing omission to accommodate the Grievor as opposed to a notice of intent to initiate the discharge process, as such. On the merits, both grievances are valid, in that the Force's process was inconsistent with the requirements of recent case law from the Supreme Court of Canada which addressed an employer's obligation to make reasonable efforts at accommodating employees with disabilities. In particular, stemming from the decision in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights [1999] 3 S.C.R. 868, the finding that the Grievor no longer meets the Force's visual acuity standard may not an adequate reason for preventing him from performing operational duties and individualized testing against a more flexible standard may be required.

The grievances should be allowed.

The Commissioner denied both grievances. With regard to the grievance on the medical profile and resulting duty restrictions, the Commissioner did not concur with the Committee's analysis of the issue of timeliness. In his view, as a result of his telephone conversation with the HSO in August 2001, the Grievor knew or ought to have known that he would no longer be able to carry a firearm, drive a marked police vehicle or perform uniformed duties-essential aspects of the duties performed by general duty constables. The updated medical profile received on October 11, 2001, confirmed what he already knew. Consequently, the first grievance did not comply with the 30-day limitation period. As for the second grievance concerning medical discharge, the Commissioner stated that it was premature. The medical discharge process had not been initiated and the Grievor's duties were limited in accordance with the recommendations of the Health Services Officer, which leads into the duty to accommodate. The Commissioner stated that there is an entire process to be followed before a discharge is ordered.