NC-038 - Medical Discharge

The Appellant had been on sick leave since January 2014. She or her health practitioners provided information about her condition at certain intervals during her absence. In July 2016, the Appellant's medical profile was modified and indicated that she was now permanently "unfit for duty." The Appellant was informed that this change meant that she was no longer fit for duty with the Force. Despite this finding, the Appellant provided the Force with some medical reports in support of her gradual return to work. However, the Appellant's medical profile remained unchanged because, according to the Force, these reports did not provide any new information on the improvement of the Appellant's health condition.

On October 13, 2016, a preliminary recommendation to discharge the Appellant was sent to the Employee Management Relations Officer (EMRO), which recommended that the Appellant be medically discharged. On November 16, 2016, the EMRO sent the Respondent a recommendation to discharge the Appellant. On November 21, 2016, the Respondent sent the Appellant a Notice of Intent to Discharge (Notice of Intent) and a copy of the documents supporting the Notice of Intent. The Notice of Intent informed the Appellant of her right to submit a written response to the Notice of Intent and of her right to request a meeting with the Respondent for the purpose of making oral submissions.

On December 7, 2016, the Appellant provided the Respondent with her written response and requested a meeting with the Respondent. On January 16, 2017, the Respondent ordered that the Appellant be discharged. In his written decision, he indicated that there had been no request for a meeting. The Appellant appealed the Respondent's decision.

The ERC found that the process followed by the Respondent violated the principles of procedural fairness, in particular the Appellant's right to be heard. As the decision-maker, the Respondent did not indicate that the Appellant had made a request for a meeting or provide written reasons as to why he would have denied the request. Rather, in his final decision report, he erroneously stated that there had been no request for a meeting. The ERC emphasized that the discharge process must strictly adhere to the principles of procedural fairness, including the right to be heard, and that a member's right to request a meeting with the decision-maker must be taken seriously. By ignoring the Appellant's request for a meeting and by failing to exercise his discretion, the Respondent breached the principles of procedural fairness by violating the Appellant's right to be heard.

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

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

[Translation]

On January 28, 2014, the Appellant left her workplace for health reasons and never returned to it, and based on the Order to Discharge, this led to her discharge on January 16, 2017.

The Appellant challenged the Respondent's decision, in his capacity as the Officer in Charge of Administration and Personnel, to discharge her due to a disability within the meaning of the Canadian Human Rights Act, since she believed that the decision contravened the applicable principles of procedural fairness, was based on an error of law and was clearly unreasonable.

Pursuant to section 17 of the RCMP Regulations, the appeal was referred to the ERC. A careful review of the file allowed the Chairperson of the ERC to conclude the following:

The Chairperson of the ERC recommended that the Adjudicator allow the appeal and remit the matter to another decision-maker for a new decision. The Adjudicator endorsed the recommendation particularly since the Record of Decision – Employment Requirements did not contain any reasons, and the Respondent had indicated in it that the Appellant had not requested a meeting when she had, thereby providing no reasons for his decision not to meet with the Appellant.

The appeal is allowed since the Respondent contravened the principles of procedural fairness, and since the decision is clearly unreasonable as there are no grounds in the Record of Decision – Employment Requirements. The matter must now be referred to the Commanding Officer, "X" Division, since the new incumbent of the Officer in Charge of Administration and Personnel position was, at the time, the Employee Management Relations Officer, who made the recommendation to discharge.