NC-082 – Medical Discharge

In August 2014, the Appellant was diagnosed with a medical condition. Between this date and her medical discharge, she was placed off-duty sick (ODS) by her treating physician on multiple occasions. Also during this period, the Appellant engaged in two Graduated Return to Work (GRTW) attempts, both of which were unsuccessful. On October 18, 2017, the Appellant was placed ODS where she remains to this day.

On December 5, 2017, the Appellant's treating physician sent a letter to the Health Services Officer (HSO) indicating that the Appellant's prognosis for a successful return to full time work was good as long as she resumed therapy. Notwithstanding this evidence, the Appellant was assigned a permanent O6 medical profile on April 23, 2018, meaning she could not to return to any RCMP duties in the reasonably foreseeable future. The Appellant immediately challenged the HSO's prognosis arguing that it was contrary to the one she had received from her physician.

Nevertheless, discharge proceedings were commenced against the Appellant and on December 7, 2018, the latter was served with a Notice of Intent to Discharge (NOI) signed by the Respondent. In her written and oral submissions in response to the NOI, the Appellant expressed her profound disagreement with the HSO's prognosis as well as his decision to proceed with an occupational prognosis assessment even though she had not yet started her treatment plan.

On March 22, 2019, the Respondent issued an Order to Discharge the Appellant, reasoning that her disability would continue to prohibit her from satisfying basic employment obligations and that the RCMP met its duty to accommodate her disability to the point of undue hardship. The Respondent indicated that she accepted the HSO's evidence adding that the Appellant had presented no new information to support the reassessment of her fitness for duty.

The Appellant presented an appeal of the Respondent's decision.

The ERC found that the Respondent's reasons were insufficient given that they failed to address the key issues and concerns raised by the Appellant and to reveal a coherent and rational chain of analysis between the evidence and the conclusion at which the Respondent arrived. The ERC then found that the Respondent was obligated to provide reasons in support of her decision to defer to the HSO's evidence and that her failure to do so amounted to a clearly unreasonable error. Finally, the ERC took issue with the fact that the Respondent failed to examine and address the evidence provided by the Appellant's physician to the effect that the latter could potentially begin a GRTW after a few weeks of treatment. In the ERC's opinion, the Respondent should have explained why this evidence was too nominal or restricted to warrant a modification or at least a questioning of the HSO's prognosis assessment. The ERC went on to conclude that the Respondent's determination that the Force accommodated the Appellant's disability to the point of undue hardship was clearly unreasonable.

The ERC recommended that the appeal be allowed.

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

The Appellant joined the RCMP on September 27, 1993. In August 2011, she was assigned to a special unit.

On June 4, 2014, she was working location A when she investigated the murder and injury of her co-workers and friends. As a result, she suffered from  a medical condition, as diagnosed by her physician on August 29, 2014.

On June 14, 2016, she was placed off duty sick (ODS) by her physician. She was prescribed a graduated return to work (GRTW) on two occasions, from April 4, 2016, to May 24, 2016, and then from February 27, 2017, to October 17, 2017. She did not work again after October 18, 2017.

On May14, 2018, the Health Services Officer (HSO) informed the Appellant that he had assigned her a medical profile of O6, meaning she was unfit to work in any capacity for the RCMP in the foreseeable future. During this time, she was undergoing trauma focused therapy, and her private psychiatrist expressed that her condition may improve to allow her to return to work at some point, however, there was no guarantee as to when.

On December 6, 2018, a Notice of Intent to Discharge was issued, and on March 22, 2019, the Respondent ordered the Appellant’s discharge with written reasons.

The Appellant appealed the discharge on the grounds that the decision contravened the applicable principles of procedural fairness, was based on an error of law, and is clearly unreasonable. The appeal was referred to the RCMP External Review Committee (ERC) for review. The Chair of the ERC recommended that the appeal be allowed primarily on the basis that the decision was clearly unreasonable due to the inadequacy of the reasons. The Adjudicator agreed and allowed the appeal.