NC-028 - Medical Discharge

The Appellant, a civilian member of the RCMP, was assigned in 2013 with a temporary medical profile of O6, which means that the Appellant was unsuitable to perform any duties in the RCMP. The Appellant was absent from his workplace since March 2012. Some of these absences were authorized, and some were not. A Stoppage of Pay and Allowances was eventually ordered.

The Appellant on numerous occasions filed incomplete medical certificates and Questionnaires. It was pointed out to him several times that it was his responsibility to ensure that this was done properly. The Appellant was communicated with by his CO and by others in respect of filing medical certificates and a possible Return to Work. His doctors advised that the Appellant was at some point before his discharge able to return to work for a few hours per day and depending on his medical condition, would gradually be able to return full-time.

The Appellant refused to return to work until a number of conditions were met including: resolution of a perceived harassment situation, reconsideration of a reclassification of his position, and removal of the Stoppage of Pay and Allowances.

Having made numerous efforts to communicate with the Appellant about the importance of returning to work, the CO prepared and signed a Notice of Intent to medically discharge the Appellant. The Appellant was in fact medically discharged from the Force in late 2016.

The Record of Decision determined that the Force had tried to accommodate the Appellant up to the point of undue hardship. Due to the failure of the Appellant's legal obligation to participate and assist with this process, the Decision-Maker found that the Force had met its legal requirements and was accordingly, justified in releasing the Appellant on medical grounds. The Decision-Maker found that there was no nexus between the conditions demanded by the Appellant and his then pending medical discharge. In any event, the CO had tried to meet with the Appellant to discuss his harassment allegations, and again, this was refused by the Appellant.

The ERC found that the Appellant's medical release from the Force was justified. The ERC found that the Force had made numerous efforts to assist the Appellant to return to work, to provide him with information on the harassment complaint process and granted an extension to file comments with respect to his pending discharge, which he never did.

The ERC found that the Force had tried to accommodate the Appellant up to the point of undue hardship.

The ERC recommended that the appeal be denied.

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

The events that led to the Appellant’s discharge from the RCMP occurred under the authority of two Unit Commanders, the previous Unit Commander and his successor who became the Appellant’s Unit Commander in March 2016 and who eventually proceeded with the discharge process. As well, these events unfolded under two Human Resources Officer, the previous Human Resources Officer who ordered the Appellant’s pay and allowances suspended and her successor, the Human Resources Officer who ordered the Appellant’s discharge and who is the Respondent in this appeal. The Appellant joined the RCMP as a civilian member and in March 2012, he began a period of long term sick leave (ODS), attributing his illness to what he alleged was long term discrimination and harassment in the workplace. He failed to persuade OHSB that his illness was work-related and, although given the opportunity to do so, he did not formalize a complaint of harassment. He continued to received full salary and benefits until he was served with an Order Directing the Stoppage of his Pay and Allowance (SPAO) on October 29, 2015, having repeatedly failed to submit medical information necessary to support his absence from work. The Appellant appealed this SPAO. In the year that followed the SPAO, the Appellant’s health care providers repeatedly deemed him medically fit to proceed with a gradual return to work, as confirmed by nine Medical Certificates, but he failed to participate in the accommodation and return to work processes. Preceded by a Preliminary Recommendation to Discharge a Member dated June 6, 2016, and by a Recommendation to Discharge a Member dated September 28, 2016, the Notice of Intent to Discharge a Member was served on the Appellant on October 31, 2016, along with supporting materials. The Appellant did not ask the Respondent to recuse herself, did not seek additional disclosure and did not request a meeting. He did inform the Respondent that he was engaged in another administrative process, which would require him to “postpone” his written response. However, notwithstanding an extension granted by the Respondent, giving the Appellant a total of 21 days to present written arguments, ultimately the Appellant remained silent. On November 2, 2016, the Commissioner dismissed the Appellant’s Appeal of the SPAO. The Appellant then pursued the matter before the Federal Court. On December 12, 2016, due to his disability for which accommodation could not be afforded short of undue hardship, the Appellant was discharged from the RCMP. This is an appeal of his discharge, the Appellant contending that the Respondent’s decision was reached in a manner that contravened the applicable principles of procedural fairness and that it was based on an error of law. The Federal Court dismissed the Appellant’s application for judicial review, dashing his hope of having the SPAO rescinded. In this appeal also, the Appellant has failed to argue his case successfully. The Appeal Adjudicator confirmed the Respondent’s decision and dismissed the appeal.