Labour Rights Law helps RCMP member obtain favourable outcome on medical discharge appeal
Labour Rights Law helps RCMP member obtain favourable outcome on medical discharge appeal from the RCMP External Review Committee.
In 2018, the RCMP discharged one of its members for reasons related to his disability pursuant to the Royal Canadian Mounted Police Act and the Commissioner’s Standing Orders (Employment Requirements).
For the RCMP, this is often referred to as a “Medical Discharge.” For lawyers at Labour Rights Law, this is often referred to as “discrimination.”
This discharged member approached Labour Rights Law for help with the duty to accommodate process and to challenge his Medical Discharge. Labour Rights Law filed an appeal on behalf of this Member arguing that the RCMP:
(a) failed in its duty to accommodate the Member; and
(b) violated Section 15 of the Canadian Charter of Human Rights (the “Charter”).
Section 15(1) of the Charter provides, in part, that every individual is equal before the law and has the right to equal protection of the law without discrimination based on mental or physical disability, among other grounds.
The Member is an exceptional and distinguished RCMP officer with more than 28 years of faithful and loyal service. His accomplishments include commanding three different RCMP detachments and one unit, and receiving two Governor General Awards and a Commanding Officer’s Commendation.
The Member, like many members of the RCMP, was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) during the course of his career. And like many members of the RCMP, he continued in active duty.
In November 2011, the Member started a graduated return to work (“GTRW”) process, recommended by the Member’s care provider and approved by the RCMP Health Services Office. This GRTW plan required the Member to work from home so he could gradually integrate back into the work environment.
When the Member attempted to return to work in accordance with the approved GRTW plan, the RCMP refused to comply. Instead, the RCMP ordered the Member to report to the Detachment to which he had been assigned.
The Member, following orders, attended the Detachment. Within an hour, he had an intense anxiety attack. He was hospitalized immediately.
Subsequently, the RCMP concluded the Member’s disability designation to be permanent and deemed the Member “unfit for all duties in the RCMP workplace, for the foreseeable future.” This is also known as a “permanent O6” designation within the RCMP.
With Labour Rights Law’s help, the Member grieved the RCMP’s decision to change his medical status to permanently disabled.
In the spring of 2014, the RCMP requested that the member undergo an Independent Medical Exam (“IME”). The member did so, but exercised his right to decline using the assessor recommended by the RCMP. Because of this, the RCMP took issue with the validity of the IME and requested that the Member obtain further information from the assessor.
After four years of back-and-forth disagreements between the RCMP and the Member about this IME, and the level and degree of necessary accommodation for ensuring the Member’s successful return to work, the RCMP issued the Member a Notice of Intent to Discharge (“NOI”). The RCMP then discharged him on the basis that the RCMP had accommodated the disabled Member to the point of “undue hardship”.
The Member, with the assistance of Labour Rights Law, filed an appeal with the RCMP’s External Review Committee (“ERC”). Labour Rights Law argued that the RCMP’s decision to discharge the Member was clearly unreasonable, an error of law, and that the RCMP’s decision to discharge the Member, because of his disability, violated Section 15 of the Charter.
On 26 February 2021, the ERC issued its recommendation with respect to the Member’s appeal. The ERC agreed that the decision was “clearly unreasonable” for two main reasons:
(a) the RCMP adjudicator failed to resolve contradictions and inconsistencies in the evidence before her; and
(b) the RCMP adjudicator failed to address the Charter argument
The ERC agreed with Labour Rights Law that the RCMP adjudicator failed to turn her mind to differing versions of the facts. The RCMP adjudicator failed to reconcile contradictory evidence with respect to the Member’s participation in the RCMP medical assessment process and the GRTW process. The ERC found that Labour Rights Law made arguments at the grievance level which, if considered by the RCMP adjudicator, may have changed the outcome of her decision.
The ERC recommended that the decision be quashed and directed, the matter be remitted to a new decision-maker. The new decision-maker must consider Labour Rights Law’s Charter arguments and consider whether the RCMP’s process regarding Medical Discharge is discriminatory.
Labour Rights Law and the Member are anxiously awaiting the Commissioner’s final decision and will provide an update as soon as the Member receives it. In the meantime, Labour Rights Law continues to assist and represent Members of the RCMP who find themselves discriminated against in the RCMP discharge process.
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