NC-007 - Medical Discharge

Between 2005 and 2015, the Appellant, who had a disability, had been intermittently absent from work. During that time, the Appellant had participated in various Return to Work (RTW) attempts. The Force attempted a final RTW process in 2016, during which the Appellant gradually increased his work hours over the course of several months and obtained positive feedback. While the final RTW process was ongoing, the Appellant was served with a Notice of Intent to Discharge (NOI) on the basis of having a disability. The NOI advised the Appellant of his right to respond to the NOI and to request a meeting with the Respondent, who would decide whether to discharge the Appellant. The Appellant sent the Respondent an email (Appellant's Email) requesting a meeting with the Respondent, to which were attached various documents which, the Appellant believed, included his response to the NOI (NOI submissions). The Appellant's Email and most of its attachments were received by the Respondent, who acknowledged receipt the next day. However, owing to a technological issue, the NOI submissions were not delivered via the Appellant's Email. Neither the Appellant nor the Respondent realized, at that time, that the NOI submissions were missing. The Respondent denied the Appellant's request for a meeting. Subsequently, on the basis of the material before him and the attachments to the Appellant's Email which had been transmitted, the Respondent issued an Order to Discharge the Appellant, with reasons attached to that order.

The Appellant appealed the Respondent's decision.

The ERC observed that the key issue to be addressed was whether the Appellant's right to procedural fairness was breached by the fact that the Respondent discharged the Appellant without considering the NOI submissions due to a technological issue in the transmission of the Appellant's Email. The Commissioner's Standing Orders (CSOs) (Employment Requirements) enshrine the right of a member to provide a written response to an NOI. In the ERC's view, the Appellant was owed a high degree of procedural fairness in this context given the impact of a discharge order and the significance of the proceedings to the Appellant.

The ERC found that the Appellant's Email contained clear indicators that NOI submissions, in addition to other supporting documents, were attached to it. While the Respondent's failure to realize that all attachments had not been provided with the Appellant's Email was inadvertent, he overlooked clear language in the Appellant's Email which specifically referred to attached NOI submissions. The Respondent's assumption that the Appellant had not provided NOI submissions denied the Appellant an important participatory right in a proceeding which had severe prejudicial consequences on him.

Given the void left by the Respondent's failure to address and respond to the NOI submissions in his decision, the ERC found that the Order to Discharge the Appellant was invalid and must be set aside.

The ERC recommended to the Commissioner of the RCMP that he allow the appeal and remit the matter, with directions for rendering a new decision, to the Respondent or to another decision maker.

The Commissioner, or a delegate, has rendered his decision in this matter, as summarized by his office:

The Appellant is appealing the Respondent's decision to discharge him from the RCMP by reason of having a disability as defined in the Canadian Human Rights Act. The ERC determined that the Appellant's written submissions in response to the Notice of Intent to Discharge were not attached to the email received by the Respondent due to a technical error and inadvertence. The ERC found that the Appellant's sole participatory right in the discharge proceedings was denied and, as a result, recommended that the appeal be allowed and the matter returned, with directions for rendering a new decision, to the Respondent or to another decision maker.

The Level II Adjudicator agreed with the ERC that a breach of procedural fairness occurred. The appeal was allowed.