NC-052 - Medical Discharge

The Appellant has been a member of the RCMP since 2009 and has been assigned to the same unit since the beginning of her career. She went on sick leave for the first time from February 2012 until February 2014. She went back on sick leave in November 2015 and made an unsuccessful return to work attempt in January/February 2016. No return to work attempts have been made since then.

An Employer Mandated Medical Assessment (EMMA) conducted in February 2017 indicated that the Appellant was fit to return to work without limitations/restrictions. Following the EMMA, the Appellant's attending physician disagreed with it and the return-to-work plan proposed by the Occupational Health and Safety Services (OHSS), indicating that the Appellant was still unfit for work. Given the opinion of the Appellant's attending physician, the Health Services Officer (HSO) reviewed the Appellant's medical file, including the EMMA, and concluded that the Appellant was indeed permanently unfit to work for the RCMP. Consequently, the RCMP informed the Appellant of this new medical profile and advised her that she would be discharged for medical reasons. The Appellant then sent the RCMP a gradual return-to-work schedule that had been accepted by her attending physician. The attending physician also sent a limitations assessment questionnaire indicating that the Appellant was fit for a gradual return to work. The HSO reviewed the newly received information and concluded that the Appellant's medical profile would remain unchanged. A Notice of Intent to Discharge was sent to the Appellant along with a preliminary recommendation and a recommendation to discharge as well as all the documents before the Respondent for his decision.

After verifying with the OHSS and analyzing the Appellant's response to the Notice of Intent, the Respondent determined that the Appellant should be discharged from the RCMP.

First, the ERC found that the Respondent did not fail in his duty to act fairly in seeking the advice of the OHSS on the Appellant's latest return-to-work plan since there was no new information provided by the OHSS. The ERC also found that the Appellant failed to demonstrate that the Respondent did not consider all of the evidence on the record or was not impartial in making his commentary on the Appellant's career. Lastly, the ERC found that the RCMP had fulfilled its duty to accommodate to the point of undue hardship in that the Appellant had spent more than half of her career on sick leave and the OHSS had concluded that there was no new medical information on the record that could alter the Appellant's medical profile.

The ERC recommended that the appeal be dismissed.

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

[Translation]

The Appellant has been a member of the RCMP since 2009. In February 2012, the Appellant went on medical leave until February 2014. In November 2015, she went back on medical leave, and a return to work was attempted unsuccessfully in February 2016. No attempts to return to work have been made since.

In February 2017, an Employer Mandated Medical Assessment (EMMA) showed that the Appellant was fit to return to work without limitations or restrictions. A gradual return to work plan over four weeks was suggested to the Appellant. The Appellant's attending physician disagreed with the plan, indicated that the latter was still unfit to work and prescribed an extended work stoppage. Consequently, the RCMP Health Services Officer (HSO) reviewed the Appellant's medical record, deemed her permanently unfit to work at the RCMP, and changed her medical profile to G6-O6. The Appellant then sent the RCMP a return to work plan and her attending physician submitted a form to the effect that she was fit for a gradual return to work. The HSO reviewed this new information and concluded that the Appellant's medical profile could not be changed based on this information. The discharge procedure was launched against the Appellant, and on June 19, 2018, the Respondent decided that the Appellant had to be discharged from the RCMP on the grounds that she was no longer able to meet the employment requirements due to a disability within the meaning of the Canadian Human Rights Act.

The Appellant is appealing this decision on the grounds that the Respondent's decision contravenes the applicable principles of procedural fairness, is based on an error in law and is clearly unreasonable.

The file was referred to the Royal Canadian Mounted Police External Review Committee (ERC) for an in-depth review pursuant to subparagraph 17(d)(i) of the Royal Canadian Mounted Police Regulations, 1988, SOR/2014-281. The Chair of the ERC recommended that the appeal be dismissed. The Adjudicator accepted the ERC's recommendation and dismissed the appeal.