Grievance Case Summary - G-423

The Grievor was on modified, largely administrative duties for a work-related disability. The Health Services Officer assigned the Grievor a Medical Profile, assessing him with ratings lower than those needed for his position. The Regional Career Manager (CM) then had to identify employment opportunities. According to the RCMP Policy on Duty to Accommodate (chapter II.37 of the RCMP Administration Manual), the CM must consult with the line supervisor to find the member a suitable posting, and the CM should consider whether the member could be accommodated in positions that were as close to the member as possible. The CM noted that the Grievor's first preference was to remain in his actual position and location. The supervisor rejected the notion that the Grievor could keep his current position with modified duties. Noting risk and operational effectiveness, he stated that the current arrangement was meant to be short term but had stretched to years.

The Committee found that the Grievor had standing. The decision not to accommodate the Grievor by further modifying his position was made in the administration of the affairs of the Force, had a personal impact on the Grievor and there were no alternate forms of redress.

It also found that the Level I Adjudicator erred when he accepted the Respondent's argument that the Grievor's position could not be rebundled into one without operational duties. The Respondent did not present evidence to support his assertions and therefore did not establish his position on the balance of probabilities. It referred to British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 R.C.S. 3 ("Meiorin"); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. ("Grismer"); Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 and its recommendation in G-266. The Committee did not make a finding on whether the Force should have allowed the Grievor to stay in his actual position because it lacked the information needed to make such a finding. The Committee noted that the appropriate remedy would normally be for the Commissioner to order that the matter be sent back in order to apply the appropriate legal test, and to make a decision documented with proof on the balance of probabilities. However, the Respondent's decision was only one step in the process and there is no information on the record as to whether the Force made its final decision. If a final decision has been made, the Committee recommends that the Commissioner not return the matter, but acknowledge that the Respondent's decision did not satisfy the evidentiary burden.

The Committee recommended to the Commissioner of the RCMP that the grievance be allowed.

The Commissioner of the RCMP decision, as summarized by his office, is as follows:

The Commissioner denied the grievance. He noted that the physical standards of the Grievor's position were adopted to ensure that members can work safely and efficiently. The RCMP adopted these standards in an honest and good faith belief that the ability to perform these tasks is necessary. To continue accommodating the Grievor in this position, as per the Grievor's last medical profile, would require further modification of the key duty requirements of the position. In the Commissioner's view, the Force would experience undue hardship as a result. Accordingly, the Commissioner could not support the Grievor's request to be accommodated in that position.