NC-255 - Harassment
The Appellant had been with the Force for many years. After a long period of leave without pay, the Appellant returned to the Force for a short while before experiencing medical issues. The Appellant had reduced hours prior to being off full time for medical reasons. After a period of several years, the Appellant had not returned to work, and there was no prognosis of her medical condition improving, which resulted in the initiation of the administrative discharge process.
The Respondent ultimately found that while the Appellant has a diagnosed disability, the Force had met its duty to accommodate as the Appellant is no longer able to fulfill their job duties for the foreseeable future.
In making that Decision, the Respondent noted that it was outside its jurisdiction to assess Canada Labour Code or harassment-related complaints. The Respondent found that there are separate procedures to deal with those issues. The Respondent also found that no potential accommodation requests were ignored or dismissed. As well, the Respondent noted that while the Appellant was not required to attend an independent medical exam, the Appellant also did not cooperate in participating when the possibility was raised.
The Appellant was ordered to be administratively discharged and subsequently appealed the Decision. The Appellant argued that there was bias within the discharge process, procedural fairness was denied, the Respondent could have heard the related Canada Labour Code and harassment complaints, and the Decision was clearly unreasonable.
ERC Findings
The ERC found that the bias issues were new arguments not raised before the Respondent and as a result could not be heard for the first time on appeal. The record contained the necessary support to advance the argument, but for whatever reason, the Appellant did not raise the issue and it would be inappropriate to consider it for the first time on appeal.
The ERC further found that the Appellant was not denied procedural fairness. The Respondent in drafting the reasons for the Decision included an explanation of the factors to be considered in assessing the amount of procedural fairness due to the Appellant. While these reasons may have been brief, there was no evidence that the Appellant’s procedural rights had not been respected.
The ERC also found that the Respondent did not make an error when refusing to consider the harassment and Canada Labour Code-related complaints. The ERC has previously found that causes of the injury that resulted in the disability are irrelevant in assessing whether the duty to accommodate is met. Also, each process identified by the Appellant is a separate process with distinct considerations.
Finally, in assessing whether the Decision was clearly unreasonable, the ERC found that the Respondent did not make an error in assessing the facts regarding the independent medical evaluation. Additionally, there was no requirement for the Force to canvass any possible accommodation for the Appellant prior to her being capable of returning to work. The medical evidence never supported that the Appellant could return. Instead, there was no basis to overturn the Respondent’s finding that the Appellant would not be able to return to work for the foreseeable future, which is the threshold for a medical discharge.
ERC Recommendation
The ERC recommends that the appeal be dismissed.
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