NC-035 - Medical Discharge

Following a traumatic incident, the Appellant first took a year of leave without pay (LWOP) in 2002 and then took an educational LWOP to attend university in July 2003. In June 2009, the Appellant met with the Division Career Development and Resource Advisor (CDRA) to discuss her options for returning to work after six years of LWOP. Discussions were held regarding options for the Appellant between the Health Services Officer (HSO), the CDRA and the Return to Work Coordinator (RTW Coordinator) to find a suitable posting for the Appellant as she had restrictions and limitations. The Appellant returned to the RCMP in July 2009. However, on the same day, the Appellant began an off duty sick (ODS) period. In September 2009, the Appellant requested information regarding her disability pension estimate in order to make a decision regarding whether to agree to a consensual medical discharge. The Appellant returned to work in October 2009 until she went ODS on April 13, 2010. She returned to work in May 2010. The Appellant had however requested another disability pension estimate in March 2010; the Appellant would eventually request five estimates pertaining to different discharge dates. As the Appellant had not made a decision regarding her discharge, the CDRA found a different temporary posting of 3 months for the Appellant, which she began in August 2010, until she went on parental leave in December 2010. At this point, the Appellant was still discussing whether she should take a consensual medical discharge with the CDRA and RTW Coordinator. The Appellant met with the RTW Coordinator in November 2011 to discuss her goal of completing 23 years of service and was tentatively looking at a discharge date of July 11, 2012. In January 2012, the District Officer found a temporarily funded position for the Appellant that would bring her to her discharge date and she returned to work. The District Officer informed the Appellant that this position was suitable solely on the basis that the Appellant had indicated that she would leave the Force in July 2012. However, the Appellant afterwards changed her discharge date to June 2014 to enable her to complete 25 years of service. The Force found another position for the Appellant in her previous detachment. In December 2012, the Appellant commenced a ODS period which lasted until her medical discharge.

In January 2013, communications between the Force and the Appellant began to flounder as the Appellant would not return the calls, messages or emails of her commanding officer, the RTW Coordinator or the CDRA. It could take months before either individual could reach the Appellant; the RTW Coordinator contacted the Appellant several times between June 2013 and May 2016 before receiving a response. Based on the Employer Mandated Medical Assessment ordered in November 2016, the Appellant’s medical profile was modified to a permanent O6, which signified that the Appellant was permanently unfit for any duty within the RCMP. The Appellant had indicated that she would provide medical information to counter her medical profile; however, she failed to do so.

The employment requirements process which is the subject of this appeal therefore began in March 2017. In July 2017, the Respondent rendered his decision that the Appellant be discharged from the RCMP. The Respondent indicated that he had reviewed the Appellant’s two submissions as well as the preliminary recommendation and the recommendation. He indicated that the Appellant had been provided with reasonable opportunities to provide additional medical information that would modify her O6 medical profile, but had failed to do so and had not participated in efforts to secure an accommodation.

The Appellant appealed this decision and indicated that the decision was procedurally unfair as the Respondent provided no reasons for his decision. Further, there was a reasonable apprehension of bias created by the fact that the Respondent is the direct supervisor of the recommending officers. The Appellant reiterated that the Force had not discharged its duty to accommodate her and went so far as to ignore her concerns and pleas regarding the harassment she endured at her detachment.

The ERC found that the Appellant has not satisfied her burden of persuasion regarding her allegation that there were insufficient reasons by simply addressing the Order of Discharge as the decision itself contained sufficient reasons. The ERC further found that the Appellant had not provided sufficient evidence that would demonstrate a reasonable apprehension of bias on the part of the Respondent as the Respondent’s status as a senior member, when deciding whether to discharge the Appellant, was clearly contemplated by the statutory regime enacted by Parliament. The ERC found that the Respondent did not breach the Appellant’s right to procedural fairness by not having direct medical evidence to render his decision and relying on information from the HSO as his decision pertained on whether the Force had accommodated the Appellant to the point of undue hardship; not whether the Appellant’s medical situation prevented her from attending work. The ERC found that the Appellant has not explained a link on how the harassment concerns she brought forward had a bearing on her medical issue. Lastly, the ERC found that the Respondent did not make a reviewable error in his assessment of the Force’s duty to accommodate and finding that it was met as multiple efforts were made to accommodate the Appellant starting in 2009.

The ERC recommended that the appeal be denied.

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

After six years of leave without pay, the Appellant returned to work at the RCMP in July 2009 with medical restrictions and limitations. The same day, the Appellant went off duty sick (ODS) until May 2010. During this time, she inquired into her disability pension estimate to determine whether she would agree to a consensual medical discharge.

Upon her return, the Division Career Development and Resource Advisor (CDRA) found the Appellant a three-month temporary position which she began in August 2010. The Appellant went on parental leave in December 2010. After expressing her desire to complete 23 years of service before discharge, the District Officer found the Appellant a temporarily funded position which would conclude with her desired discharge date in July 2012. The Appellant later decided she wanted to complete 25 years of service and changed her discharge date to June 2014. As such, the CDRA found another position for the Appellant in her previous detachment. In December 2012, however, the Appellant stopped attending work and went ODS in January 2013 lasting until her eventual medical discharge.

Beginning in January 2013, there was a breakdown in communication between the Force and the Appellant as the Appellant failed to answer calls, return voicemails, or reply to emails from the Commanding Officer, the CDRA, and the Return to Work Coordinator. The Force tried to explore accommodation options with the Appellant, but communications from her were extremely limited and brief. In November 2016, the Appellant was ordered to attend an Employer Mandated Medical Assessment (EMMA). Based on the results of the EMMA, the Appellant’s medical profile was modified to “permanent O6” which signified that she was permanently unfit for any duty within the RCMP for the foreseeable future. The Appellant indicated she would provide medical information to counter her medical profile, but failed to do so.

An Employment Requirements process was initiated in March 2017. After reviewing the Appellant’s two submissions, the preliminary recommendation, and the recommendation, the Respondent rendered his decision discharging the Appellant in July 2017. He explained that the Appellant had not engaged with the Force in its accommodation efforts, and despite being provided opportunities to do so, the Appellant failed to provide additional medical information that would modify her O6 medical profile.

The Appellant challenged the discharge order on the basis that the decision was procedurally unfair as the Respondent provided no reasons for his decision and did not consider all evidence. Moreover, the Appellant alleged a reasonable apprehension of bias. She also argued that the Respondent failed to consider the harassment she endured at her detachment, and that the Force had not discharged its duty to accommodate her.

The appeal was referred to the ERC for review, pursuant to paragraph 17(d)(i) of the Royal Canadian Mounted Police Regulations, 2014. The Chair of the ERC recommended that the appeal be denied. The Adjudicator was not persuaded that the RCMP had failed to accommodate the Appellant, and found that there was no breach of procedural fairness and the decision was not clearly unreasonable. The appeal was dismissed.