NC-053 - Medical Discharge

The Appellant has been an RCMP member since May 20, 2003. She was on sick leave almost continuously from October 2013 to August 2018. On August 20, 2018, she was sent a letter to advise her that she was being medically discharged due to a disability. On August 23, 2018, the Appellant refused to accept the letter she was sent by registered mail with signature requested. On December 4, 2018, a Notice of Intent to Discharge (Notice) was served on the Appellant by registered mail with no signature requested. The Appellant did not respond to the Notice. On December 27, 2018, an Order to Discharge (Order) ending her employment with the RCMP, dated the same day, was served on the Appellant by registered mail with no signature requested.

On February 1, 2019, the Appellant submitted an appeal form to the Office for the Coordination of Grievances and Appeals. On May 13, 2019, the Respondent raised the issue of the appeal period. In his opinion, the Appellant had not complied with the statutory 14-day time limit imposed by the Commissioner's Standing Orders (Grievances and Appeals), and the appeal therefore had to be dismissed on that basis. The Appellant submitted that she had never read the Order because when the document had been sent to her, she had stopped acknowledging receiving mail from the RCMP. In that regard, she maintained that her attending physician had notified the RCMP several times that sending letters, notices or other documents compromised her physical integrity, and she was therefore unable to read the documents. The Appellant indicated that she accidentally discovered on January 27, 2019 that she was no longer a member of the RCMP when she noticed that she had not received her pay for the month of January. In her opinion, she therefore had 14 days from January 27, 2019 to lodge her appeal.

The evidence on file shows that the Order was served on the Appellant on January 4, 2019. However, since it was served by registered mail with no signature requested, the Appellant is deemed, pursuant to subsection 15(6) of the RCMP Regulations, 2014, to have been served the Order seven days later, on January 11. She therefore had 14 days from that date, until January 25, 2019, to lodge her appeal. As a result, by submitting her appeal form on February 1, 2019, she did not comply with the statutory 14-day time limit set out in section 38 of the Commissioner's Standing Orders (Grievances and Appeals). The ERC also concluded that there were no exceptional circumstances in this case to justify extending the time limit to lodge an appeal.

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 2003. She was on medical leave almost continuously from October 2013 to August 2018, and she attempted to gradually return to work three times without success. On August 20, 2018, a letter was sent to the Appellant by registered mail with signature requested to advise her that she was being medically discharged due to disability. The Appellant refused to accept this letter. On December 4, 2018, a Notice of Intent was served on the Appellant by registered mail with no signature requested, and she did not provide any response. Then, on December 27, 2018, an Order to Discharge was served on the Appellant by registered mail with no signature requested, ending her employment with the RCMP. On February 1, 2019, the Appellant appealed this decision. On May 13, 2019, the Respondent raised the preliminary issue of the statutory time limit and indicated that the Appellant had failed to comply meeting the 14-day appeal period imposed by the Commissioner's Standing Orders (Grievances and Appeals). In response to this preliminary issue, the Appellant stated that she had only read the decision on January 27, 2019, and that she therefore had 14 days from that date to lodge her appeal.

The matter was referred to the ERC for an in-depth review pursuant to subparagraph 17(d)(i) of the Royal Canadian Mounted Police Regulations, 1988, SOR/2014-281. The Chairperson of the ERC recommended that the appeal be dismissed on the basis that since the letter had been served by registered mail with no signature requested, the Appellant was deemed, pursuant to subsection 15(6) of the RCMP Regulations, to have been served seven days later, on January 11, 2019. In the opinion of the ERC, the Appellant therefore had until January 25, 2019, to file her appeal. Consequently, the ERC found that by filing her appeal on February 1, 2019, the Appellant failed to comply with the statutory 14-day time limit. The ERC also found that there were no exceptional circumstances in this case to justify extending the appeal period.

Along with the ERC, the Adjudicator agreed that the Appellant had filed her appeal after the statutory time limit, but found that, given the provisions of paragraph 43(d) of the Commissioner's Standing Orders (Grievances and Appeals), the particular details of this appeal justified extending the time limit. The Adjudicator therefore reviewed both grounds of appeal raised by the Appellant relating to the Respondent's duty to accommodate and the latter's reasonable apprehension of bias. The Adjudicator dismissed the appeal on the merits.