Grievance Case Summary - G-666

The Grievor went on medical leave in June 2003. Starting in December 2003 until August 2005, the Force requested that the Grievor submit to a periodical health assessment (PHA) in order to determine his fitness to work and/or any limitations and restrictions he might have if he would return to work. No PHA was undergone by the Grievor. In October 2005, the Grievor's physician provided a medical certificate indicating that the Grievor was unfit for duty "indefinitely". Consequently, in November 2005, the Health Services Officer (HSO) assigned a medical profile of "permanent O6" to the Grievor. However, from November 2005 to June 2007, discussions regarding a possible return to work were held between the Force and the Grievor; the Grievor indicated that he would be willing to contemplate a return to work once his health care providers authorized such a return. No medical information was provided by the Grievor indicating that he could return to work.

In June 2008, the Respondent served the Grievor with a Notice of Intention to Discharge on the ground of having a disability. When the Grievor was served with the Notice, the accompanying materials on which the recommendation from the Medical Board would be based were not provided to the Grievor. The Grievor attempted to receive these documents a few times, but the Force did not provide them. The Medical Board convened in January 2010 and provided its report with recommendations to the Force in March 2010. The Grievor was not provided with a copy of the Medical Board report. After receiving the Medical Board recommendations, the Force explored return to work options for the Grievor, but the Grievor refused to participate in a meeting explaining that he had not received the relevant materials in order for him to prepare a response to the Medical Board report. Ultimately, in October 2010, as the Grievor had not provided medical information demonstrating that he was fit to return to work and had not participated in the accommodation process, the Respondent rendered a decision discharging the member.

The Grievor grieved his medical discharge based on a breach of procedural fairness and requested that it be set aside and his medical profile of O6 be rescinded. There were numerous procedural issues between the Grievor and the Office of Coordination of Grievances in the process of this grievance, which ultimately proceeded with Level I submissions in April 2016. The Level I decision was rendered in January 2019 in which the Level I Adjudicator allowed the grievance as the Grievor's right to procedural fairness was breached because the Force had not provided him with the materials on which the medical discharge decision would be based. The Level I Adjudicator quashed the medical discharge decision and remitted the matter for a new decision. However, he indicated that he could not rescind the Grievor's medical profile of O6.

Although his grievance was allowed, the Grievor requested a review of his grievance by a Level II Adjudicator, stating that the proper remedy for such a breach of procedural fairness would be to rescind his medical profile. The Respondent did not challenge the Level I decision and also agreed to rescind the Grievor's medical profile. He indicated that a new process to assess the Grievor's medical profile would be undertaken and accommodation options would be explored if needed. In his rebuttal, notwithstanding that his requested remedy was granted by the Respondent, the Grievor maintained his position that the grievance as a whole should be reviewed by the Level II to examine the Force's conduct throughout the medical discharge process, including breaches of the Privacy Act, procedural fairness, sufficiency of evidence to establish his medical profile and the Health Services Officer's lack of impartiality.

The ERC first found that the Grievor could not raise issues regarding the HSO's lack of impartiality, abuse of discretion or the fact that the O6 medical profile was not based on sufficient evidence as they were not raised before Level I. The ERC then agreed with the Level I Adjudicator that the Grievor's right to procedural fairness was breached and that the matter should be remitted for a new decision. Therefore, the remaining issues were rendered moot and the circumstances did not meet the criteria to use discretion to nevertheless address these issues raised by the Grievor.

The ERC recommended that the grievance be allowed.

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

The Grievor challenged a decision by the RCMP to medically discharge him. At Level I, the Adjudicator allowed the grievance and quashed the medical discharge on the basis that the Grievor's right to procedural fairness had been breached. The Grievor sought a review at Level II on the issue of his medical profile. The Respondent agreed to revoke the medical profile but the Grievor maintained the Level II grievance. The Commissioner accepts the ERC recommendation that the medical profile issue is moot and that the original medical discharge be quashed, confirming the Level I decision.