Grievance Case Summary - G-328

The Grievor was ordered by his manager to undergo a medical exam. Although he went to the scheduled appointment, the Grievor did not permit the physician to conduct the exam. The Commanding Officer of the division then immediately suspended him from his duties. The incident in question also led to a disciplinary investigation, which was completed five months later. After reviewing the investigation report, the Commanding Officer of the division requested that the Grievor's pay be suspended and that he be charged for his benefits in view of the serious nature of the behaviour in question. The Respondent agreed to this request, in the belief that what the Grievor had done constituted "one of the most serious kinds of misconduct at the RCMP." This decision was then grieved. An advisory board that looked into this grievance recommended that the decision be cancelled as it was of the opinion that the Grievor's conduct was not serious enough to justify such a draconian measure. The Level I Adjudicator did not agree. In his opinion, the Grievor's conduct "seriously affected his ability to perform his duties as a member of the RCMP" and could have "a significant negative impact on the public's confidence in the ability of the police service to protect the community if police officers could follow some orders but disregard others."

Treasury Board did not uphold the intent of the RCMP Act by adopting a regulation allowing the RCMP full discretion to confiscate the pay and benefits of suspended members as it sees fit. Treasury Board should instead have set the criteria to be used. Moreover, the Commanding Officer of the division could not justify the five months that passed before he requested that the Grievor's pay and benefits be confiscated. There is no indication that the investigation report provided information that he did not already have when he suspended the Grievor from his duties or that he could not readily and quickly have obtained simply by asking for it. As to whether the Grievor's conduct justified the measure taken, both the Respondent and the Level I Adjudicator exaggerated the seriousness of the conduct. The decision did not give sufficient weight to the reasons cited by the Grievor for not wishing to submit to a medical exam, including the fact that he had received a legal opinion that the order he was given was in violation of the Section 7 of the Canadian Charter of Rights and Freedoms.

The grievance should be allowed.

The Commissioner concluded that the grievance did have not any practical interest since the pay and benefits were re-instated to the Grievor following his decision in the disciplinary matter D-087.