NC-048 - Administrative Discharge

For significant portions of a multi-year period, the Appellant was off duty with an expired medical profile and/or security certificate. She was repeatedly cautioned about her omissions to meet employment requirements, ordered to meet them and told that a failure to do so may lead to an Employment Requirements process and discharge for absence from duty without authorization. By late 2017, the Appellant remained off-duty without an updated medical profile or security clearance. The Force began an Employment Requirements process in which the Respondent served the Appellant with a Notice of Intent to Discharge her (NOI) for her being absent from duty without authorization. The Appellant was invited to file a timely written submission in response to the NOI, which she did. The Respondent’s office confirmed the receipt of the submission in writing.

The Respondent did not receive the Appellant’s submission, and issued a decision ordering the Appellant discharge for being absent from duty without authorization (Original Decision). Days later, the Respondent emailed the Appellant to explain that she had only just received her written submission in response to the NOI, and that she would review the submission and then promptly make a revised decision. About a week later, the Respondent issued a new decision in which she addressed key positions in the Appellant’s submission and ordered the Appellant’s discharge for being absent from duty without authorization (Amended Decision). The Appellant filed an appeal and a brief submission. She asserted that the process preceding her discharge was procedurally unfair and that the decision to discharge her was clearly unreasonable.

The ERC determined that the Amended Decision, and not the Original Decision, was the decision under appeal. The jurisprudence indicated that an administrative body could re-open a decision if that body failed to comply with a principle of natural justice in reaching the decision. That is what happened in the present matter. Specifically, the Respondent re-opened the Original Decision and made the Amended Decision to cure the procedural unfairness of making the Original Decision without first reviewing the Appellant’s written submission. The Respondent’s approach was particularly appropriate in the circumstances, as the Appellant’s career was in jeopardy and the duty of procedural fairness is more stringent in such situations.

The ERC then found that the Appellant’s grounds of appeal lacked merit. First, the Appellant’s Employment Requirements process seemingly unfolded in a procedurally fair way, consistent with relevant authorities governing the provision of notice of a case and justification for a decision. The Force followed the main principles for ensuring the fairness of a process used to discharge a member for being absent from duty without authorization, as set forth in applicable legislation and policy. Moreover, the Amended Decision was based on all the information in the record, contained reasons and was promptly served on the Appellant. Second, the Amended Decision did not appear clearly unreasonable. It was grounded upon the facts and evidence in the record. The Respondent also plainly turned her mind to the Appellant’s written submission in response to the NOI, and addressed the principal arguments that were presented to her.

The ERC recommended that the appeal be denied.

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

In January 2008, the Appellant commenced her employment with the RCMP. Beginning mid-March 2011, the Appellant was off duty due to medical reasons. After her medical profile expired in May 2012, the Force took multiple steps to obtain updated medical information to update her profile and determine her ability to return to work. During this time, the Appellant's security clearance also expired. The Force attempted to schedule a new security interview to update the Appellant's security certificate. Despite being warned of the consequences of failing to update her medical profile or security clearance, the Appellant seldom communicated with the Force and failed to complete her Employer Mandated Medical Assessment, independent medical evaluation, and security interview. By late 2017, the Appellant remained off duty without an updated medical profile or security clearance.

An Employment Requirements process was soon after initiated. The Appellant was served with a Preliminary Recommendation to Discharge, Recommendation to Discharge, and Notice of lntent to Discharge (NOI) for being absent from duty without authorization. The Appellant responded to the NOI noting that she was unaware that she was absent without authorization, could not attend the schedule medical assessment because she was in the hospital, did not receive certain emails or communications from the Force, and that she followed every directive since being off duty sick. After reviewing the Appellant's submission, the Respondent ordered her discharge.

The Appellant challenged the Order to Discharge on the basis that the decision was procedurally unfair as she was not advised that she was absent from duty without authorization. She also argued that the decision lacked factual evidence and was based on fabricated allegations.

The appeal was referred to the 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 and the decision was not clearly unreasonable. The Appeal was dismissed.