Grievance Case Summary - G-652

G-652

In December 2012, the Respondent signed an Order that the Grievor be medically discharged from the RCMP. The Order followed the release of a Medical Board report which found that the Grievor had had an ongoing disability since going off duty sick years earlier and that she was unemployable in any capacity within the Force. The Grievor grieved the Respondent’s decision. The Office for the Coordination of Grievances (OCG) was unsuccessful in its attempts to obtain a Level I submission on the merits from the Grievor or the Grievor’s Lawyer. The OCG later mailed the Grievor’s Lawyer a request for a rebuttal to the Respondent’s submission, noting that if the rebuttal was not received by a specified deadline and no extension was sought, the case would proceed to the next stage. The lawyer did not reply. The OCG sent the Grievor a transit slip that scrutinized this legal representation and directly invited her to submit a rebuttal, without including a deadline. No rebuttal was received. The OCG ended the Level I submissions stage.

The Level I Adjudicator denied the grievance on its merits. She found that the Grievor failed to meet her burden of persuasion, as no submissions or evidence were provided in support of the position that the medical discharge conflicted with relevant authorities or was otherwise flawed. At Level II, the Grievor says that she was denied procedural fairness at Level I of the grievance process. She claims actions by the Respondent and OCG raised legitimate expectations for the progress of the Level I grievance which were dashed when the Level I process was ended, thus infringing on her right to be heard. Sadly, the Grievor passed away during the Level II process.

The ERC found the Grievor’s Level II submission was admissible even though it raised a new argument that the Level I process was procedurally unfair. Given that this alleged unfairness comprised a series of principally subtle acts and omissions which occurred over time, its total effect did not become evident to the Grievor until she had received the Level I decision. The ERC also found that, while the Grievor’s death could potentially render the grievance moot, discretion should be exercised to hear the case, for two reasons. First, the determination of the date the Grievor’s employment ceased may have pension and estate implications. Second, the matter raises the important issue that the RCMP’s grievance process must be procedurally fair.

Moving on to the merits, the ERC found that the Grievor was owed a high degree of procedural fairness, as a medical discharge from the RCMP had a potentially substantial impact on her life. The Grievor had a legitimate expectation at Level I of the grievance process, namely, that she would receive opportunities to file a submission with supporting evidence as well as a rebuttal submission on the merits. This expectation was met, as opportunities were given to make those submissions. The record did not support the position that other legitimate expectations existed.

However, the ERC found that the Grievor was denied procedural fairness when the OCG closed the Level I submission stage after directly inviting her to supply a rebuttal without stipulating any deadline for so doing. Given the OCG’s stated concerns about the Grievor’s representation and knowledge that her employment was in jeopardy and that she had been sick for several years, it should have stated clearly to the Grievor, as it had to her lawyer, that she was required to file a rebuttal or seek an extension by a specific date, failing which those opportunities would be lost.

The ERC recommended to the Commissioner of the RCMP that the grievance be allowed. It recommended that the Commissioner quash the Level I decision on the merits and take whatever measures she deems appropriate to: ascertain who, if anyone, is representing the Grievor’s estate; what steps the representative wishes to take, if any; and, if requested, direct that the matter be returned to Level I, permitting the representative to make a rebuttal submission pursuant to the requirements of policy. The ERC also recommended that, if no rebuttal is received, the Commissioner deny the Level I grievance on its merits on the basis that the Grievor’s burden of persuasion was not met. This would have the effect of restoring the impugned medical discharge, effective December 2012. Lastly, the ERC recommended that, should the Commissioner allow the grievance at Level II, she acknowledge that the Grievor was owed a higher degree of procedural fairness than she received, given that the Grievor had been off duty sick for years with a serious and documented medical condition, that there was a stated concern that her lawyer was inadequately representing her and that her livelihood was at stake.