NC-044 - Administrative Discharge

The Appellant went on medical leave in April 2011. In May 2016, the Appellant was assigned a temporary medical profile of G3 O5 which meant that the Appellant was deemed fit for administrative duties. A graduated Return to Work Plan (GRTW) was signed by the Force and the Appellant which stipulated that the Appellant would be working four hours per week from home for a period of six weeks, to be reevaluated after this period.

On more than one occasion, the Appellant did not report for duty and did not communicate with his superior. On April 10, 2017 the Appellant met with his superior, the RTW Coordinator and the Disability Management Advisor (DMA) where the importance of maintaining communication and abiding by the GRTW plan were emphasized to the Appellant. The Force left voicemails and sent letters to the Appellant indicating that he was absent without authorization as the Appellant had not reported for duty since April 24, 2017. The Appellant later provided a medical certificate which deemed him unfit for duty from April 13 to 24, 2017. However, the following medical certificate, which was overlapping the previous medical certificate, provided by the Appellant deemed him fit for duty, but the Appellant did not report for duty. On May 2, 2017, the DMA sent an email to the Appellant to inform him that he was exceeding 40 hours of consecutive absence without authorization. The Appellant did not respond. In June 2017, the Appellant’s superior sent him a letter indicating that he was absent without authorization and requesting that the Appellant contact him within 3 days and informing him that a failure to do so without result in an Employment Requirements process recommending his discharge. The Appellant did not contact his superior.

A preliminary recommendation, a recommendation to discharge for being absent for duty and a Notice of Discharge were prepared and served on the Appellant. The Appellant requested an extension of time to file his response as his health professional was not available. The Appellant also requested the Respondent’s recusal as the latter had denied the Appellant’s request for secondary employment. The Respondent denied both as the discharge was not based on medical grounds and his previous decision was not relevant to the present discharge process. The Respondent ordered the Appellant’s discharge.

The ERC found that the fact that the Respondent had prepared a draft of the decision before reviewing the Appellant’s submission did not create a reasonable apprehension of bias. Furthermore, the Appellant provided his response to the Notice of Discharge after the expiry of his deadline to do so; the Respondent nevertheless considered the late submission. The ERC further found that there was no breach of procedural fairness when the Respondent denied the Appellant’s request for extension as the Appellant was not being discharged on medical grounds; therefore, his medical practitioner’s opinion was irrelevant in the circumstances. The ERC found that the evidence on the record supported the Respondent’s decision as this evidence showed that the Appellant was fit for duty, but was not reporting for duty. Lastly, although the Appellant indicated that there were obstacles to his return to work, the ERC found that these obstacles were self-imposed and did not prevent the Appellant from reporting for duty.

The ERC recommended that the appeal be denied.

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

The Appellant commenced his employment with the RCMP. In April 2011, the Appellant went on authorized medical leave. In May 2016, the “X” Division Health Services Officer (HSO) assigned the Appellant a temporary medical profile of G3 O5, which meant he was deemed fit for administrative duties only. A Graduated Return to Work plan (GRTW) considering the Appellant’s limitations and restrictions specified that the Appellant would work four hours per week for a period of six weeks and was signed by the Force and the Appellant. The Appellant commenced his GRTW in October 2016.

On multiple occasions, the Appellant failed to follow his GRTW plan. He either showed up late or did not show up at all, communicating only minimally with his supervisor. In April 2017, the importance of following the GRTW plan and maintaining communication with his command team was emphasized in a meeting between the Appellant, his supervisor, the Return to Work Coordinator, and the Disability Management Advisor (DMA). Beginning April 24, 2017, the Appellant stopped reporting for duty altogether, and did not respond to calls, voicemails or letters from his supervisor, and the DMA. On May 18, 2017, the Appellant provided a medical certificate to his supervisor and requested to work in the office during “quiet hours”. On June 5, 2017, the Appellant’s Acting Officer in Charge sent him a letter advising him that the medical certificate deemed him fit for duty with restrictions and pending the HSO’s assessment of these restrictions, the Appellant was expected to return to work. The Appellant was told he had three days to explain his absence from duty since April 24, 2017, failure of which would result in initiation of an employment requirements process recommending stoppage of pay and allowances and discharge. The Appellant did not respond.

An Employment Requirements process was initiated soon after. The Appellant was served with a Preliminary Recommendation to Discharge, Recommendation to Discharge, and Notice of Intent to Discharge (NOI). The Appellant requested an extension to file his response to the NOI indicating that he wished to seek the opinion of his medical practitioner who was not available at the time. The Appellant also requested the Respondent’s recusal as the Respondent had previously denied the Appellant’s request for secondary employment. The Respondent noted that the discharge was not based on medical grounds thereby eliminating the need for input from the Appellant’s medical practitioner. The Respondent also explained that his previous decision was not relevant to the present discharge process. Accordingly, both requests were denied. The Appellant did not produce a timely response to the NOI. The Respondent ordered his discharge.

The Appellant challenged the Order to Discharge (OTD) on the basis that the decision was procedurally unfair as the Respondent did not give the Appellant the opportunity to be heard and had a reasonable apprehension of bias. He also argued that the NOI failed to contain an allegation or offence and that both the NOI and OTD contained falsehoods.

The appeal was referred to the RCMP External Review Committee (ERC) for review, pursuant to paragraph 17(d)(ii) of the Royal Canadian Mounted Police Regulations 2014. The Chair of the ERC recommended that the appeal be denied. The Adjudicator was not persuaded by the Appellant’s grounds of appeal and found that there was no breach of procedural fairness, the decision was not clearly unreasonable, and there was no error of law. The appeal was dismissed.