NC-031 - Medical Discharge

The Appellant has been on sick leave since April 2014. The medical reports provided by the Appellant indicate that she has a medical condition caused by a conflict situation in her work environment. Since the end of 2014, the medical reports provided by the Appellant (until March 2017) indicate that she is unfit for duty for an indefinite period. However, the Appellant's treating physician, her medical specialist and the Health Services Officer of her division all indicated that she could return to work if she was offered a different position. There is no evidence on the record that such an action was taken by the RCMP.

On January 16, 2017, a preliminary recommendation for discharge was sent to the Employee Management Relations Officer (EMRO) recommending that the Appellant be discharged for medical reasons. On February 2, 2017, the EMRO sent a recommendation of discharge to the Respondent. On February 3, 2017, the Respondent sent the Appellant a Notice of Intent to Discharge the member.

The Appellant requested that the Respondent recuse himself since he had made a previous decision on harassment complaints filed by the Appellant. In that decision, the Respondent found that the Appellant had not been harassed. The Respondent refused to recuse himself, but granted an extension of time for the Appellant to send her written submission. The Respondent also refused to meet with the Appellant, despite her request. The Respondent rendered his decision on April 5, 2017.

The ERC first found that the Respondent did not have to recuse himself since the fact that the Respondent concluded that the harassment complaints were unfounded did not rebut the presumption of impartiality. However, the ERC found that the Respondent breached his duty to act fairly by not disclosing two pieces of information to the Appellant. Moreover, this breach of procedural fairness could not have been remedied by this appeal. Therefore, the ERC recommended that the file be remitted for a new decision.

The ERC nevertheless considered the merits of the case and found that the RCMP had not discharged its burden of demonstrating that it had accommodated the Appellant to the point of undue hardship.

The ERC recommends that the Adjudicator allow the appeal and remit the file for a new decision.

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

[Translation]

A regular member of the RCMP since 1998, the Appellant experienced difficulties in the workplace in 2012. Therefore, in November 2013, she filed harassment complaints against two supervisors, a corporal and a sergeant, and in April 2014 began her medical leave which led to her discharge. The Commanding Officer of “X” Division and Respondent in this appeal dismissed the harassment complaints in December 2015 and January 2016, respectively. Although of the opinion that the events identified by the Appellant did not constitute harassment, he did, however, clarify that the Appellant should no longer report to the corporal or the sergeant.

The Appellant appealed the decision of the Commanding Officer of “X” Division to discharge her from the RCMP on the grounds that she allegedly had a disability as defined in the Canadian Human Rights Act. According to her, the impugned decision [Translation] “violates the principles of procedural fairness considering that the decision-maker refused to recuse himself,” it “is based on an error of law in that it contravenes the charters because of the decision maker’s misinterpretation of principles well established by the courts with regard to the duty to accommodate,” it is “clearly unreasonable because of the misinterpretation of the factual framework, which constitutes a palpable and overriding error of facts which affects the rights of the Appellant” and, finally, “the decision maker contravened the various RCMP processes by not ensuring that reintegration measures were put in place to facilitate the Appellant’s return to work.”

Pursuant to section 17 of the RCMP Regulations, the appeal was referred to the RCMP External Review Committee (ERC). A careful examination of the file led the ERC Chairperson to the following conclusions:

The ERC first found that the Respondent did not have to recuse himself since the fact that the Respondent concluded that the harassment complaints were unfounded did not rebut the presumption of impartiality. However, the ERC found that the Respondent breached his duty to act fairly by not disclosing two documents/information to the Appellant. Moreover, this breach of procedural fairness could not have been remedied by this appeal...

The ERC nevertheless considered the merits of the case and found that the RCMP had not discharged its burden of demonstrating that it had accommodated the Appellant to the point of undue hardship.

The ERC recommended that the Adjudicator allow the appeal and remit the file to another decision-maker for a new decision, a recommendation that the Adjudicator ratified at the outset.

The appeal is allowed. The case must be taken over by a decision-maker other than the decision-maker who rendered the decision reversed on appeal.