RCMP officer’s refusal to work denied

Right to refuse under <i>Canada Labour Code</i> requires specific risk to health faced at work

An RCMP constable improperly used her right to refuse work when she didn’t report to work due to an illness, says the Canadian Public Service Labour Relations Board.

Carmen Saumier joined the RCMP in 1987 as an anti-smuggling investigator in Valleyfield, Que. On Dec. 14, 1993, she was in a work-related car accident. She developed pain and fatigue and she was eventually diagnosed with fibromyalgia and post-traumatic stress in 1997. Saumier informed her supervisor she had medical limitations and couldn’t work more than eight hours in a day. The RCMP responded by giving her light work and she was transferred to the airport in Montreal in 1999 to work as an investigator.

In July 2003, a psychiatric assessment at the RCMP’s request determined Saumier suffered from an “adjustment disorder with anxiety,” but no post-traumatic stress disorder. A November 2003 exam found she suffered from chronic pain but not fibromyalgia as some of the symptoms may have been psychological from a dependence on the treatment.

After an August 2004 assessment recommending a gradual return to work, the RCMP agreed to start her on administrative tasks for two half days a week on Oct. 4, 2004. This would increase by one half-day every three weeks until she reached a full five-day work week. At a Sept. 23, 2004 meeting, Saumier agreed to an accelerated schedule of working five four-hour days beginning Oct. 4.

On Oct. 26, Saumier was off sick for two weeks. She asked her doctor for reasons to scrap the return-to-work plan and the doctor blamed Saumier’s illness on the accelerated schedule. Saumier asked to revert to the original, slower plan but the RCMP refused and asked her to stick to the agreed-upon schedule. Saumier returned to working seven-hour days on Nov. 9 and began eight-hour days the following week, but on her doctor’s recommendation scaled back to four-hour days

A Jan. 27, 2005, assessment found her physical problems were worsened by her psychological state. She was diagnosed with depression caused by her medical condition, leaving her tired and unable to work. She went on medical leave on Feb. 22, 2005, and was declared unfit to work for seven months.

During her leave, Saumier was put under surveillance where she was seen doing “activities that were incompatible with a recommendation of total disability,” including social activities and carrying heavy items. An RCMP doctor determined she was fit to perform “sedentary administrative tasks.”

On Sept. 22, 2005, the RCMP issued Saumier a return-to-work order that said if she didn’t comply she would be subject to disciplinary action. Saumier said she was excercising her right under the Canada Labour Code to refuse to perform work that endangered her health. The RCMP pointed out she had to be at work to exercise that right.

Saumier reported to work on Sept. 27 and told her supervisor she was refusing to work because it would aggravate her health. She didn’t specify any harmful tasks but said every task aggravated her health because she was on disability. The RCMP didn’t accept it and she was served with another return-to-work order explaining her first refusal was premature because she hadn’t specifically said what the danger was.

Saumier submitted a report from her doctor saying she was still unfit for work, but the RCMP doctor felt she was fit to perform administrative duties. A third return-to-work order was issued, once again warning she could be disciplined or discharged if she didn’t comply.

Saumier filed a complaint with board, claiming the RCMP violated the code by threatening to take disciplinary action when she exercised her right of refusal as allowed under the code.

The board found the code allows an employee while at work to refuse to work if she has reason to think there is a danger to her or another employee. However, the phrase “while at work” indicates the right can’t be exercised when the employee is not present. The board found this gave the RCMP justification to deny Saumier’s first refusal.

When Saumier came into work to reiterate her refusal, this constituted an official refusal, according to the board. She had explained her refusal was based on the recommendations of her doctors and this made the RCMP aware of her reasons. However, the board found Saumier didn’t make any specific reference to what she felt would endanger her health, which is required by the code to give the employer an opportunity to correct the situation.

“It is not sufficient merely to allege that a person who is unable to perform a specific task because of illness could become more ill if that person returned to work,” the board said. “For her refusal to come under the code, (Saumier) had to demonstrate the nature of the risk to her health from the tasks that the RCMP wanted to assign to her.”

The board also found that Saumier’s refusal came in response to the return-to-work order, so the threat of discipline came before her refusal.

Given that Saumier’s refusal didn’t specify any specific danger to her health and the discipline wasn’t threatened directly because of the refusal, the board dismissed her complaint.

For more information see:

Saumier c. Canada (Conseil du Trésor — Gendarmerie royale du Canada), 2008 CarswellNat 218 (Can. P.S.L.R.B.).

Latest stories