Grievance Case Summary - G-697

The Grievor, who suffered from a disability, has been off-duty sick since July 2004. At first, the Grievor's treating doctors and RCMP Health Services were in disagreement with respect to the Grievor's ability to return to work. Given Health Services' determination that the Grievor was fit for duty without any restrictions, the latter was served with three Return to Work Orders between November 2004 and September 2005. The first two reintegration attempts were unsuccessful because the Grievor failed to report to duty as ordered. In June 2005, the Grievor was presented with a modified work schedule which was endorsed by his treating physician who confirmed that the Grievor would be returning to work in an administrative capacity. The Grievor's Gradual Return to Work began on August 17, 2005, and continued for two weeks until a medical certificate indicating that the Grievor was unfit for duty was submitted. The Grievor's medical leave request was not supported by Health Services and the Grievor was consequently served with a third Return to Work Order on September 8, 2005. In failing to comply with the order, the Grievor was alleged to have been absent from duty without authorization. Disciplinary proceedings were commenced but were eventually dismissed following a review of the Grievor's medical file in June 2007 by the Director of Occupational Health Services. Essentially, the Director concluded that Health Services should have supported ongoing sick leave and consequently, the Grievor should never have been ordered to return to work. As a result of the Director's findings, the disciplinary proceedings against the Grievor were withdrawn and his suspension was lifted.

Between July and November 2007, the Force made significant efforts to meet with the Grievor in order to discuss the options available to him. As a result of his unwillingness to cooperate, the Grievor was served with a Notice of Intent to Discharge on November 27, 2007.

Between April and November 2008, a Medical Board was assigned to determine the degree of the Grievor's disability. The Grievor remained on sick leave for an additional 3.5 years. In March 2011, the Medical Board issued its findings which ultimately led the RCMP to assign a permanent medical profile of G6 O6 to the Grievor. Between July and October 2011, the Force attempted without success to meet with the Grievor in order to ascertain how to proceed.

On September 9, 2011, the Grievor submitted a medical certificate attesting that he was fit for police work as of July 5 of that year. He also conveyed an interest to return to work. However, the following week or so, the RCMP received another medical certificate this time indicating that the Grievor was unfit for duty as of September 16 and for an indeterminate period of time. Nevertheless, in an effort to entertain the Grievor's expressed desire to be reintegrated into the workplace, the RCMP invited him to present an updated Evaluation of Disability Questionnaire (form 4056). When the Grievor failed to provide the requested information, all accommodation efforts ceased and a Notice of Discharge dated November 7, 2011, was issued.

The ERC found that the Grievor's medical discharge from the RCMP was justified. The ERC held that Force properly relied on the Grievor's lack of participation in the accommodation process, as well as on the medical evidence attesting that the latter was unfit to perform any type of work within the RCMP for the foreseeable future.

The ERC further found that the Force tried to accommodate the Grievor up to the point of undue hardship.

The ERC recommended that the Commissioner deny the grievance.

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

The Grievor challenged a decision by the RCMP to medically discharge him, claiming that the Medical Board report upon which the discharge was based was flawed and that the Force failed in its duty to accommodate. At Level I, the Adjudicator denied the grievance, finding that there was no evidence that the Medical Board report, endorsed by Grievor's treating specialist, was inaccurate and that the RCMP met its duty to accommodate to the point of undue hardship. The Grievor sought a review at Level II. The Commissioner accepted the ERC recommendation to uphold the Discharge Order, finding that the Respondent appropriately relied upon the Medical Board report and there was no other verifiable medical information to confirm the Grievor's fitness for duty. The Commissioner found the Force met its duty to accommodate which was made impossible to the point of undue hardship due to the Grievor's noncooperation and avoidance. The grievance was denied.