NC-067 - Medical Discharge

After a 3-year medical leave, the Appellant attempted a Graduated Return to Work (GRTW) in July 2012 until July 2013, but he began a second period of medical leave in July 2013, from which he did not return to work. The Health Services Officer (HSO) issued the Appellant an O6 medical profile, meaning that the Appellant was unable to return to work for the foreseeable future. The Appellant grieved this change to his medical profile, which was partially upheld by a Level I Adjudicator. In the spring of 2014, the Force requested that the Appellant undergo an Independent Medical Exam (IME), which the Appellant did, but without using one of the assessors recommended by the Force. The HSO took issue with the validity of the IME due to the assessor used and requested that the Appellant's counsel obtain further information from the assessor, which was ultimately not done. The Appellant's counsel contacted the Force in October 2016 indicating that the Appellant was interested in returning to work as long as he was properly accommodated. This led to the HSO advising the Force that she had issues with the original IME and that her request for follow-up had not been responded to; thus she maintained her opinion that Appellant was unlikely to do a GRTW in the foreseeable future. However, the HSO expressed openness to a further IME by an assessor with expertise in the Appellant's condition to reassess his fitness to work. This led to the Appellant's counsel taking the position that a further IME was too intrusive a measure.

Despite this, the Appellant's counsel advised the Force that the Appellant remained interested in a GRTW, and the Force reiterated that updated medical information would be required for a GRTW. An HSO panel was assembled and it recommended that the Appellant undergo a second IME. The Appellant failed to answer this request. Therefore, the Force initiated discharge proceedings. However, the Employee Management Relations Officer (EMRO) opined that the Appellant be ordered to undergo an IME. One was scheduled for the Appellant; however, the Appellant failed to provide his consent to the assessor, who terminated the assessment.

The Force continued with the discharge process. In his response to the Notice of Intent to Discharge (NOI), the Appellant namely argued that his GRTW agreement was not respected by the Force, which at first failed to provide him with the tools to work and then failed to provide him with RCMP projects to work on. Then the Force, against his care provider's advice, caused him to return to an operational setting too quickly, triggering a worsening of his condition. The Force subsequently did little to accommodate the Appellant's condition, for instance, they rejected his doctor's advice that he try working from home again at first, and later refused to accept the results of an IME conducted by a qualified practitioner of the Appellant's choice who said Appellant could do a GRTW. Further, the HSO ultimately insisted on an assessment by a doctor of the Force's choosing, and the Force refused to fund seven hours of further assessment required by the Appellant's clinician to provide an opinion about his GRTW readiness. Lastly, the Appellant argued that the discharge proceedings under subsection 6(a) of the Commissioner's Standing Orders (Employment Requirements) (CSO (Employment Requirements)) were a breach of his section 15 Canadian Charter of Human Rights (Charter) right and that it could not be justified under section 1 of the Charter.

The Respondent found that the Appellant failed to cooperate with the accommodation process, caused the process to flounder and therefore, he could not be accommodated to the point of undue hardship. The Respondent ordered the Appellant's discharge.

The Appellant appealed his discharge. He argued that the Respondent failed to address contradicting evidence, failed to address his Charter argument and reiterated that the Force did not accommodate him to the point of undue hardship.

The ERC found that the Respondent erred by failing to address contradicting evidence and differing versions regarding the Appellant's participation in the accommodation process. The ERC further found that the Respondent erred in not addressing one of the Appellant's main arguments; namely, that subsection 6(a) of the CSO (Employment Requirements) breached his Charter right.

The ERC recommended that the appeal be allowed and the matter remitted for a new decision.

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

The Appellant went on medical leave. In November 2011, his health care provider cleared him to commence a Graduated Return to Work (GRTW) at his home. The GRTW was not successful.

In July 2013, the Health Services Officer (HSO) informed the Appellant that he was unfit to return to the workplace. His medical profile was changed to a permanent "O6". The Appellant grieved that decision.

Between 2013 and 2014, the Appellant underwent an Independent Medical Examination (IME). The assessor concluded that the Appellant was fit for duty and could commence a GRTW. However, in the HSO's view, the IME supported a permanent "O6" medical profile for the Appellant. The HSO later claimed that she had not received answers to certain questions, and that a new IME was required.

In June 2017, an HSO panel determined that a second IME was needed. The Appellant did not submit to the IME. Discharge proceedings were initiated in September 2017, ultimately leading to the Respondent's decision to discharge the Appellant, effective September 11, 2018.

The Appellant appealed alleging, inter alia, that the Force failed to establish that it accommodated him to the point of undue hardship, and in any event, paragraph 6(a) of the CSO (Employment Requirements) used to effect the discharge, violates the Charter, all of which led to a decision that was procedurally unfair, based on an error of law, and clearly unreasonable.

The appeal was referred to the ERC for review pursuant to subparagraph 17(d)(i) of the Royal Canadian Mounted Police Regulations, 2014. The Chair of the ERC recommended that the appeal be allowed.

The Adjudicator agreed that by not addressing differing versions of crucial facts, the Respondent's decision could not stand. The Adjudicator therefore allowed the appeal, ordered the Appellant reinstated from the date of his discharge, and directed that the matter be put before a new decision-maker.