NC-026 - Medical Discharge

In May 2012, the Appellant began a period of off duty sick (ODS), on which he subsequently remained until he was discharged in the proceedings which are the subject of this appeal. In February 2014, a Health Service Officer (HSO) panel determined that the Appellant was unlikely to return to work in any capacity in the foreseeable future and modified his medical profile by lowering it to a permanent 06. Starting in May 2015, the Appellant’s Commanding Officer (CO) sent several letters to the Appellant in order to determine whether the Appellant could return to work. The Appellant refused some of the letters, but provided an incomplete medical certificate and later refused to provide further medical information to the Force. In order to advise the CO on the Appellant’s medical situation, the HSO requested further medical information from a specialist regarding diagnostic, prognostic and current situation. On December 15, 2015, the Appellant’s CO issued a Notice Requiring a Member to Undergo a Medical Examination or an Assessment by a Qualified Person. In February 2016, the HSO informed the Appellant’s CO that, as the Appellant had not presented himself for the required medical examination, she was left to rely on the medical information made available to the Force. The HSO was of the opinion that the Appellant’s medical profile of O6 remained unchanged, that he had reached maximum medical improvement, and as such he was not likely to return to modified or full duties in the reasonably foreseeable future.

In March 2016, proceedings were commenced regarding the discharge of the Appellant from the Force on the ground that he was unable to meet his employment requirements on the basis of having a disability. In his response to the Notice of Intent to Discharge (NOI), the Appellant argued that the material provided with the NOI yielded several errors, omissions and inaccuracies in dates. He further argued that criminal breaches, code of conduct offences and unethical practices have been committed by parties involved in forwarding allegations against him and seeking his discharge. The Appellant submitted that the RTW/Duty to Accommodate (DTA) process was not followed as no options were ever presented to him. In her Record of Decision (ROD), the Respondent found that the Appellant had been provided with reasonable opportunities to participate in the accommodation process, but had failed to do so. The Respondent concluded that if an employee remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate him or her, the employer will have satisfied the duty to accommodate test for undue hardship. The Appellant appealed this decision.

Upon receiving the material that was before the Respondent when she made her decision, the Appellant raised an objection on the basis that there were materials missing from the disclosure package and that the Respondent did not have sufficient evidence to render her decision.

The ERC first found that the Appellant had not met his burden of establishing that the requested materials met the disclosure criteria and found that the Respondent had sufficient information to render her decision. The ERC found that the RCMP made several efforts to fulfill its obligations in the accommodation process, beginning in May 2015, when the Force attempted to ascertain the Appellant’s health status. The ERC lastly found that in the context of the dismissal of employees on the basis of absenteeism due to disability, jurisprudence recognizes that attendance at work is a legitimate work-related standard. Further, the Appellant had a corresponding and ongoing obligation to provide relevant medical information to assist the Force in determining whether he could be accommodated. The ERC found that the Respondent’s decision was not clearly unreasonable.

The ERC recommended that the appeal be dismissed.

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

The Appellant was absent from duty from May 2012 until his discharge in June 2016. In February 2014, a Panel composed of three RCMP Health Services Officers assigned the Appellant a permanent O6 medical profile. The Appellant was deemed "unable to return to modified or full duties in the reasonably foreseeable future". By the end of December 2014, the Appellant's Medical Certificate had expired thus rendering his absence from the workplace unjustified.

In May 2015, the Appellant's Detachment Commander began corresponding with the Appellant, authoring seven letters, the last one dated March 7, 2016. He repeated his offers of assistance and repeated his attempts to have the Appellant provide the required medical documentation and information to support his absence from duty. The Appellant was informed of possible consequences should he fail to comply. The Appellant either refused service of the correspondence, provided incomplete and uninformative Medical Certificates, refused to provide the RCMP HSO with medical information or refused to attend an evaluation with a medical subject-matter expert chosen by the RCMP.

On March 17, 2016, the Appellant's Detachment Commander issued a Preliminary Recommendation to Discharge or Demote a Member. Then on March 29, 2016, the EMRO issued his Recommendation to Discharge the Appellant. On April 18, 2016, the Respondent issued the Notice of Intent to Discharge, providing the Appellant the opportunity to be heard before she rendered her final decision. The Appellant did not request a meeting but he did request two extensions in order to submit written representations. The requests were granted.

The Respondent issued her Order to Discharge the Appellant on June 16, 2016. The decision was effective immediately, the Appellant receiving 80 hours of pay rather than the 14-day notice.

On Appeal, the Appellant argued that the Detachment Commander and/or Respondent had failed in their duty to accommodate him. The Appeal Adjudicator found that the Appellant had been given multiple opportunities to submit medical information in order to justify his absence from the workplace, but failed to do so. He was repeatedly offered assistance from his Detachment Commander, but did not reach out. He refused service of documents. He was informed of an upcoming medical assessment with a medical expert, but did not attend. He also refused to communicate his medical information to the HSO, preventing the HSO from establishing an updated medical profile and determining whether the Appellant could be reintegrated into the workplace with or without accommodation. Also, the Appellant was informed of the possible consequences should he continue to refuse to comply with policy. The Appeal Adjudicator found the Appellant's Detachment Commander, the EMRO and the Respondent acted diligently at all times, respecting their authorities and meeting their obligations and responsibilities.

The Appellant alleged that the Respondent's decision was reached in a manner that contravened the applicable principles of procedural fairness, that it was based on an error oflaw and that it was clearly unreasonable. He failed to establish his case. The Appeal Adjudicator confirmed the Respondent's decision and dismissed the Appeal.