Grievance Case Summary - G-614

In 2006, the Grievor's renal functions failed and he was required to begin dialysis treatment. His medical profile changed from Occupational Factor 02 to 04. Efforts to locate a suitable position with duties and responsibilities in keeping with his medical profile were ongoing when the Grievor began to work in a detachment on a Graduated Return to Work (GRTW) basis in August 2008. In August 2009, the Grievor altered his treatment schedule and his medical profile Occupational Factor improved to 03, which permitted some requirement for investigative duties. The only restriction of relevance contained in the Grievor's medical profile was that he should not be exposed to duties with a “high risk of physical confrontation”.

In September 2009, the Grievor indicated his interest in competing for a Professional Standards (PS) position in his detachment that was being advertised internally. On September 30, 2009, the Respondent denied the Grievor the opportunity to compete for the position as the position was fully operational and the Grievor could not fulfil this requirement due to his Limitations & Restrictions. She also cited a 40-hour/week work commitment, his GRTW status, and mandated dialysis treatments as reasons he would not be able to fulfil the position's requirements. On October 14, 2009, the Grievor again met with the Respondent, who confirmed she would not consider the Grievor for the PS position. In November 2009, the Grievor was transferred to a PS position in another detachment. The Grievor grieved the Respondent's decision to refuse to consider him for the PS position.

A Level I Adjudicator dismissed the grievance on its merits, finding there was nothing improper about the process used by the Respondent to make her decision or that she made the decision with any malicious intent.

The ERC found that the Grievor established a prima facie case of discrimination pursuant to section 7 and/or 10 of the Canadian Human Rights Act (CHRA).

The ERC also found that the Respondent did not satisfy her obligation to actively consider the accommodation of the Grievor in the detachment pursuant to subsection 15(2) of the CHRA and section D.2. of the RCMP Accommodation Policy. The Respondent failed to establish, on a balance of probabilities, that the designation of the PS investigator position as fully operational was a bona fide occupational requirement contemplated by paragraph 15(1)(a) of the CHRA and section D.3. of the RCMP Accommodation Policy. However, as the Grievor was placed in a PS permanent position in another detachment, the ERC found that the Force as a whole fulfilled its duty to accommodate the Grievor pursuant to the CHRA and the RCMP Accommodation Policy.

The ERC recommended that the Commissioner of the RCMP deny the grievance on the basis that the Force satisfied its duty to accommodate the Grievor pursuant to the CHRA and the RCMP Accommodation Policy.

The ERC also recommended to the Commissioner that he order the Respondent to apologize to the Grievor for her failure to satisfy her role in the process of accommodation as she did not establish that the fully operational requirement for the PS position was a bona fide operational requirement pursuant to paragraph 15(1)(a) and subsection 15(2) of the CHRA and section D.3. of the RCMP Accommodation Policy.

The Commissioner's decision, as summarized by his office, is as follows:

The Grievor presented a grievance after he was denied an opportunity to compete for an intemally advertised position based on an existing medical condition. The Respondent maintained that the position must remain fully operational, and since the Grievor's limitations and restrictions prohibit him from incidents of high risk, the Respondent decided to exclude the Grievor from the job competition. The Grievor argued that the Respondent discriminated against him based on a prohibited ground of discrimination-his disability-in violation of the Canadian Human Rights Act and the RCMP's policy on Duty to Accommodate Members with Disabilities. Shortly after the aggrieved decision, the Grievor was accommodated in an identical position at Division Headquarters. Level I denied the grievance. The Commissioner accepted the ERC recommendation to deny the grievance on the basis that the Force satisfied its duty to accommodate the Grievor.