NC-029 - Medical Discharge

The Appellant has been on indeterminate sick leave since 2008 (including a maternity leave and an attempt to return to work in October 2012). All medical certificates on file indicate that she is unfit for duty. In her attempt to gradually return to work, the RCMP Occupational Health and Safety Services (OHSS) recommended that she follow a program as part of her return to work. After discussion with her medical team, the Appellant refused to participate in the program.

Since September 2015, several Employer-Mandated Medical Assessments (EMMAs) have had to be cancelled because the Appellant could not attend or the health professional refused to examine her because she had to be accompanied by her spouse. When the Appellant last refused in August 2016 (due to the short notice given to undergo the EMMA), the OHSS advised her that her medical profile would be permanently changed to G6/O6 and that her file would be transferred to Human Resources.

After receiving the Notice of Intent to Discharge, the Appellant sent written submissions to the decision maker. The Respondent concluded in a single paragraph that the Appellant was unable to meet the employment requirements despite the RCMP's efforts to assist her in returning to work. In addition, according to the Respondent, the Appellant had not completed any EMMAs and had declined the offer to participate in the program. Consequently, the Respondent ordered the Appellant's discharge.

The ERC first found that the Respondent's reasons were so inadequate as to make the decision clearly unreasonable. There was no indication from the Respondent's reasons that he had considered the Appellant's evidence, that he was aware of the issues and that he had taken them into consideration. The ERC found that, given the state of the case law regarding the adequacy of reasons, the Respondent's decision was not adequately justified to allow an appellate review of the correctness of its decision.

The ERC also found that the RCMP had failed to discharge its burden to demonstrate that it had accommodated the Appellant to the point of undue hardship.

The ERC recommended to the Commissioner of the RCMP that the appeal be allowed.

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

[TRANSLATION]

The Appellant appealed the decision of the Officer in Charge, Administration and Personnel of "X" Division (Respondent) to discharge her from the RCMP on the grounds that she had a disability, as defined in the Canadian Human Rights Act.

The Appellant claims that the impugned decision contravenes the applicable principles of procedural fairness and is clearly unreasonable. According to the Appellant, [translation] "the decision is based on memos and documents that contain major errors and falsehoods." She notes that she brought the [translation] "errors and falsehoods" to the Respondent's attention as part of her [translation] "submissions" and that her submissions included supporting documents, [translation] "but that there is no indication that they were taken into consideration." Moreover, while the RCMP claimed to have [translation] "done everything in its power to help her," the Appellant claims that the RCMP [translation] "only made one offer to assist her."

In addition to the usual texts, the Record of Decision – Employment Requirements – Administrative Discharge (RD) contained only the following:

[Translation]

Reason(s) for the recommendation:

• Disability, as defined in the Canadian Human Rights Act

Particulars:

[The Appellant] is no longer able to meet the employment requirements despite the RCMP's efforts to help her recover and the accommodation measures to help her return to work.

Findings:

Occupational Health and Safety Services has made no progress in its efforts to help [the Appellant] recover or return to work in any capacity. [The Appellant] did not participate in medical examinations mandated by the OHSS. [The Appellant] declined the offer to take advantage of rehabilitation services.

Pursuant to section 17 of the Royal Canadian Mounted Police Regulations, 2014 (SOR/2014-281), the appeal was referred to the RCMP External Review Committee (ERC). A careful review of the file allowed the ERC Chairperson, Charles Randall Smith, to find that the Respondent's reasons were [translation] "so inadequate as to render the decision clearly unreasonable" since there is [translation] "no indication from the Respondent's reasons that he considered the Appellant's evidence" even though the Appellant had provided the Respondent with [translation] "a full submission noting errors and deficiencies in the documents accompanying the Notice of Intent."

Since the ERC was of the opinion that [translation] "the Respondent's decision is not adequately justified to allow an appellate review of the correctness of its decision," and further noting that [translation] "the RCMP has not discharged its duty to accommodate the Appellant," it recommended that the Adjudicator allow the appeal and remit the matter for a new decision. After reviewing the case, and without hesitation, the Adjudicator hearing the appeal endorsed the ERC's recommendation and allowed the appeal.