Grievance Case Summary - G-564

The Grievor performed operational police duties. He suffered two sudden blackouts, and was placed on anti-seizure medication. One physician characterized one of the Grievor's blackouts as “a possible seizure”. A different physician ascertained “clinical evidence supportive of the diagnosis of probable epilepsy”. After a period of time, RCMP Health Services decided to amend the Occupation Fitness designation on the Grievor's medical profile from O2 (which permitted a member to carry out operational duties) to O4 (which did not). The Grievor was consequently prohibited from performing operational police functions for at least five years.

The Grievor disagreed with RCMP Health Services' decision. He filed a grievance in which both he and the Respondent took positions that were based on the Force's Health Services Manual Appendix II-1-5, Part 6 - Central Nervous System, Profiles 45 and 46 (HSM App. II-1-5 Part 6). Profiles in HSM App. II-1-5 Part 6 stated that O4 designations should be given to members who were diagnosed with epilepsy, had multiple seizures, or required medication to control seizures.

The Grievor argued that HSM App. II-1-5 Part 6 should not be enforced in his situation because he was well enough to be operational, and because it was applied in a way that barred him from working in the capacity he desired within the Force. The Respondent primarily argued that the RCMP needed to enforce the applicable policy profiles for safety reasons. The Level I Adjudicator denied the grievance on the merits. She found that the impugned decision was consistent with principles set out in HSM App. II-1-5 Part 6. The Grievor resubmitted his grievance at Level II.

The ERC observed that five types of grievances are referable to the ERC, in accordance with subsections 36(a) to (e) of the Royal Canadian Mounted Police Regulations, 1988. It found that the present grievance did not fall within the scope of subsections 36(b), (c), (d), or (e), as those subsections all deal with subjects which were not at issue.

The other type of referable grievance, described in subsection 36(a) of the 1988 Regulations, involves matters relating to “the Force's interpretation and application of government policies that apply to government departments and that have been made to apply to members”. The ERC found that the present grievance also fell outside the ambit of subsection 36(a), as it was not based on the Force's interpretation and application of a government policy made to apply to members. Rather, it was based on the Force's interpretation and application of HSM App. II-1-5 Part 6, which is strictly an internal RCMP policy. As neither party referenced a comparable, or otherwise relevant authority which fell within subsection 36(a), the grievance was not referable.

This grievance is not referable to the ERC. As a result, the ERC does not have the legal authority to further review the matter or make a recommendation.

The Commissioner agreed that the grievance was not referable to the ERC and sent the grievance to the appropriate Level II decision maker.