FPSLREB Decisions

I. Grievance referred to adjudication

1 Prior to her termination on April 20, 2004, Diane Way was employed as an interpretations officer, classified PM-03, in the GST Rulings Division of what was then the Canada Customs and Revenue Agency (CCRA) and is now known as the Canada Revenue Agency (CRA) in Toronto.

2 The letter of termination (Exhibit E-24), dated April 20, 2004, sets out the grounds for termination, which were that Ms. Way accepted and reported for an indeterminate position with the Canadian Forces Grievance Board (CFGB) in Ottawa, without disclosing this to the CRA. Those actions were viewed as breaches of the CRA’s Code of Ethics and Conduct, the CRA’s Conflict of Interest Code and Guidelines and Ms. Way’s duty of honesty and integrity that she owed to the CRA.

3 The hearing of the grievance was originally scheduled for December 2006 but was postponed at Ms. Way’s request. The hearing was next scheduled for April 2007 but was postponed a second time, at the employer’s request, until June 2007. The hearing was not completed in the time allotted in June 2007, and the next available dates that the parties could agree to were in December 2007.

4 On April 28, 2004, Ms. Way submitted her grievance (Exhibit G-19) against the termination. She requested that she be reinstated and made whole.

5 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35.

II. Summary of the evidence

6 A total of five witnesses were called, and 50 exhibits were entered. Much of the relevant evidence is not in dispute. Ms. Way has an extensive academic background, including four post-secondary degrees (Exhibit E-26). One of the degrees, an L.L.B., was obtained in 1987. Ms. Way’s work experience is equally impressive, as a lawyer, teacher, researcher and librarian/archivist. Prior to the events that led to her termination, Ms. Way’s performance was highly rated by her two team leaders (Exhibit G-10).

7 In the spring of 1998, Ms. Way began to work for Revenue Canada as a PM-01 collections contact officer (Exhibit E-27). She was appointed to a number of higher-level acting positions (Exhibit E-28) as well as higher-level indeterminate positions. As she wished to do more work of a legal nature, Ms. Way continually searched for alternate positions while employed at the CRA.

8 One position, that of a senior grievance officer with the CFGB, came to her attention by way of an electronic poster (Exhibit E-30). The tenure of the position was indeterminate, and the location was Ottawa. Moreover, the classification was PM-05, two levels higher than the position held by Ms. Way at the CRA in Toronto.

9 Ms. Way applied for the position and travelled to Ottawa to take the required tests. She qualified, was placed on an eligibility list and was offered the position by letter dated November 19, 2003 (Exhibit E-2). The offer had to be accepted and returned to the CFGB no later than December 3, 2003. Ms. Way signed the letter of offer, dated it November 28, 2003, and checked the box beside the words “I accept to [sic] this offer.”

10 The effective date of Ms. Way’s appointment was to be January 5, 2004. Due primarily to some real estate problems relating to her home in Toronto and, to a lesser extent, some pet-care concerns, the reporting date was changed to February 23, 2004 (Exhibit E-3). The CFGB made it clear that should Ms. Way not report on that date, her appointment would be rescinded.

11 Ms. Way did report to the CFGB in Ottawa on February 23, 2004, and remained at the CFGB all that week — February 23 to 27, 2004.

12 At this point, the evidence is in dispute. Ms. Way, on the one hand, testified unequivocally that she was not reporting for work. Rather, she was “merely entering a voluntary and unpaid internship” or, to use Ms. Way’s alternate characterization, she was “only shadowing the job, checking or trying it out.”

13 On the other hand, Muriel Wexler, Director of Grievance Analysis and Operations at the CFGB, was clear in her testimony that Ms. Way had reported for work. Ms. Wexler stated that the CFGB does not have internships, nor is there any such thing as trying out a job at the CFGB. Ms. Wexler explained that there were other indicators of Ms. Way having accepted the job. Ms. Wexler testified that Ms. Way did not advise the CFGB that she was only trying the job. On the contrary, Ms. Way applied for relocation assistance (Exhibit E-31) on December 12, 2003, in which she stated: “I have been appointed to an indeterminate position … with the Canadian Forces Grievance Board … This new appointment necessitates that I move from Toronto to Ottawa … I require accommodation in Ottawa as I shall be permanently working in the city… .” Moreover, during her first week, Ms. Way met with a representative of Human Resources and went to a new employee orientation meeting. She was shown around, met a peer who was to be her coach and was given an office, a computer, a few files as well as the annual report, training manuals, office supplies, etc. (Exhibit E-5). As well, training was discussed and arrangements were made for training in writing decisions the following week.

14 Ms. Way did not advise the CRA that she had accepted another indeterminate job. In order to cover her absence from the CRA for the week of February 23 to 27, 2004, while at the CFGB, Ms. Way used a compressed day on Monday, February 23, 2004, and vacation leave for the other four days.

15 The following week, March 1 to 5, 2004, Ms. Way returned to work in Toronto at her CRA position. To cover her absence from the CFGB, Ms. Way called in each day saying that she was sick. She also obtained a medical certificate (Exhibit E-6) from Dr. James Choi, in Toronto, dated March 4, 2004. This certificate states: “Ms. Way is off all this week due to medical reasons.” [emphasis in the original]

16 Continuing her weekly rotation, Ms. Way returned to Ottawa the following week and reported to the CFGB from March 8 to 10, 2004. Her absence from the CRA in Toronto was covered by using vacation leave credits on March 8 and 9, 2004 (Exhibit G-16(1)), and calling on March 10, 2004, to advise that she would not be in that day.

17 On Wednesday, March 10, 2004, Ms. Way’s dual life came to a halt.

18 It was on that date, having been asked to sign the amended letter of offer (Exhibit E-7) of February 25, 2004, changing her reporting date to February 23, 2004, that Ms. Way confessed that she had not resigned from her CRA job in Toronto. Ms. Way signed the amended letter on March 10, 2004, checking the “I decline this offer” box (Exhibit E-14).

19 Also on March 10, 2004, and prior to Ms. Way admitting to her continuing employment at the CRA, a Human Resources representative from the CFGB called the CRA in order to arrange a transfer of sick leave credits to cover Ms. Way’s absence from March 1 to 5, 2004. This call revealed that Ms. Way was still an employee at the CRA.

20 By letter dated March 10, 2004, Ms. Way was suspended by the CFGB pending an investigation (Exhibit E-8), and Ms. Way grieved that suspension (Exhibit E-9), requesting to be made whole. Ultimately, the CFGB terminated Ms. Way on May 3, 2004, and Ms. Way grieved her termination (Exhibit E-11) on May 11, 2004, requesting that she be reinstated to the CFGB. Neither grievance was successful.

21 Other than a cheque dated April 1, 2004, sent to Ms. Way for the period from February 23 to 25, 2004 by the CFGB, which Ms. Way returned by registered mail dated April 13, 2004 (Exhibit E-13), there is no further evidence concerning Ms. Way’s involvement with the CFGB.

22 As indicated in the Fact-finding Investigation Report (Exhibit E-18) by the CRA, Ms. Way returned to work at the CRA in Toronto from March 15, 2004, until her termination on April 20, 2004.

23 John Kent, the Director of the grievor’s division, conducted the investigation for the CRA and testified that at the disciplinary fact-finding interview on March 17, 2004, Ms. Way’s representative said that there was nothing wrong with dual employment since Ms. Way was on authorized leave while at the CFGB. No remorse was shown, and Mr. Kent testified that Ms. Way was uncooperative and less than forthcoming.

24 While at the CRA, Ms. Way attended a training session on the Code of Ethics and Conduct (“the Code”) (Exhibit E-21) on March 12, 2002. At this session, a copy of the Code was provided to attendees.

25 Following the fact-finding exercise, Ms. Way’s situation was assigned to Janice Charlton for determination. Ms. Charlton, the delegated manager for imposing discipline involving a breach of the Conflict of Interest Code and Guidelines (Exhibit E-22), considered Mr. Kent’s Fact-finding Investigation Report (Exhibit E-18), documents provided by the CFGB confirming Ms. Way’s employment and the CRA’s Discipline Policy (Exhibit E-25). As well, both mitigating and aggravating factors were considered and discussed with representatives of Staff Relations.

26 Ms. Charlton testified that while offences such as this, considered to be Group 5 violations of the Discipline Policy, fall within the 30-days’ suspension to termination range, termination was considered appropriate as Ms. Way had not acknowledged having done anything wrong, much less expressed any remorse. The CRA determined that Ms. Way lied when asked about her relationship with the CFGB. Worse, she continued to lie, saying that she had never been offered and had never accepted or received any remuneration from the CFGB. Moreover, Ms. Way also lied to the CFGB about being sick when she was actually working that week at the CRA. Combined with her lack of cooperation at Mr. Kent’s fact-finding investigation, Ms. Charlton testified that the facts led the CRA to choose the termination route (Exhibit E-24) as, in the CRA’s opinion, Ms. Way could no longer be trusted.

27 Emmerson Waugh, formerly Branch President of the Toronto District with the Customs Excise Union Douanes Accise, was called as a witness by Ms. Way. He said that it is an employee’s responsibility to identify any apparent conflict of interest to his or her employer for its determination and that the “conflict rules are well known by employees.” Mr. Waugh conceded that all employees must sign a statement certifying that they have read the contents of the Conflict of Interest Code and Guidelines (Exhibit E-22).

28 Mr. Waugh had worked with Ms. Way when she was a union steward and had attended the fact-finding hearing with her at her request. He testified that at the time he felt that the meeting had not gone well and that the whole matter was predetermined and lacked good faith.

29 Concerning Ms. Way’s status at the CFGB, it was Mr. Waugh’s opinion that “if they offered a full-time permanent position and she accepted, that’s it. It’s a done deal.”

30 Mr. Waugh acknowledged that the Treasury Board’s Terms and Conditions of Employment Policy (Exhibit E-12) was adopted by the CRA and that it contains, under the remuneration section, a requirement that there can be no dual-remuneration situation without the express permission of one’s deputy head.

31 Mr. Waugh testified in cross-examination that at a brief meeting with Ms. Way prior to the fact-finding hearing with Mr. Kent, Ms. Way had not mentioned to him that:

1. she had grieved her suspension from the CFGB one week earlier (Exhibit E-9);
2. she had grieved her termination from the CFGB (Exhibit E-11);
3. she had requested relocation assistance to move to Ottawa (Exhibit E-31); and
4. during her first week at the CFGB she was provided with an office, computer access, copies of publications and files and that she had been added to the CFGB telephone list and their Outlook list.

32 Notably, Mr. Waugh, who was testifying on Ms. Way’s behalf, testified at this point that “[e]verything is contrary to the position I was presented with and I’m wondering why I’m here. I would now change my position on Ms. Way’s employment status at the CFGB.” Mr. Waugh went on to express his opinion that it would be a fraudulent use of sick leave for someone with two full-time jobs to request sick leave from one employer to go and work for the other and that one must recognize having done something wrong in order to correct one’s behaviour.

33 Ms. Way testified that she had no previous discipline and had good performance assessments (Exhibit G-10). As the only lawyer in the GST Rulings Division, some legal issues were diverted specifically to her.

34 Ms. Way testified that she did not see any conflict in the duties of the CFGB job as those duties had no relation to her CRA duties. Had she perceived any conflict, she would have raised it with either her team leader or her union. She realized that the CFGB job was indeterminate, and when she signed the acceptance she thought she could sell her house in Toronto and move.

35 Ms. Way stated that “after I was taken on strength at the CFGB, I was not doing much.” She was given a door/security pass, was introduced to colleagues, was given an office and access to the Internet, and may have had access to a fax machine, scanner and copier. She was on the Outlook system, receiving emails, and she remembers having been booked for a training session as well as receiving a copy of the current annual report, a copy of the Queen’s Regulations and Orders, and the usual office supplies.

36 On her return to the CFGB on March 8, 2004, Ms. Way was told by Ms. Wexler that she had missed the training the previous week and that the Information Technology Section would need to hook her up to their database. That same week, Ms. Way recalled requesting to work a compressed four-day work schedule and being introduced to her new supervisor.

37 When confronted with the fact that her new employer knew of her continuing CRA employment on March 10, 2004, Ms. Way wrote on the amended letter of offer that she declined the offer but that was not accepted. Instead, she was suspended pending an investigation (Exhibit E-8). Ms. Way recalls her reaction: “If you have a thing like that you make a decision — which job do you want?”

38 Ms. Way testified that she did not accept a job offer at the CFGB and therefore she did not inform the CRA. Nor was there a need to either resign or apply for leave without pay. She based this explanation on the fact of her not having signed the amended offer, which in her opinion negated the original offer. She continued by saying: “Had I gone to work at the CFGB, then they might have had a case!”

39 Regarding the issue of sick leave from the CFGB, Ms. Way said that she did not submit a sick leave certificate (Exhibit E-6), so she had never formally applied for leave; she merely called in sick. Concerning the alleged violation of the Conflict of Interest Code and Guidelines, Ms. Way testified in cross-examination that “making a mistake concerning a potential conflict of interest is just that — a mistake and need not be bad faith.”

40 Despite her legal training, Ms. Way testified that she had difficulties understanding the vague, broad terms of the Conflict of Interest Code and Guidelines (Exhibit E-22) and the Code of Ethics and Conduct (Exhibit E-21). In her original letter of offer from the CRA (Exhibit E-27) dated May 4, 1998, at page two, it is made clear that Ms. Way’s signature serves to certify that she has read and understood the Conflict of Interest Code and Guidelines and that compliance with them is a condition of employment. That same caution was repeated on each and every occasion Ms. Way was given an acting position, as shown in Exhibit E-28.

41 Beyond those departmental obligations, Ms. Way conceded that as a lawyer, she is bound by the Law Society of Upper Canada’s Rules of Professional Conduct (Exhibit E-29).

42 The collective agreement (Exhibit G-1) at clause 34.05 provides for a recall from vacation leave, and Ms. Way testified that she is familiar with the provision.

43 Ms. Way agreed that even when she’s on vacation leave, there are some limits on what she can do, as well as limits that continue during a post-employment period.

44 Ms. Way agreed that the electronic poster (Exhibit E-30) for the CFGB position did not refer to a “voluntary internship.” Nor did she at any time explain to Ms. Wexler that she was only checking out the job. Nor did she correct Ms. Wexler’s letter of February 3, 2004 (Exhibit E-3), which stated that action would be taken to have her “appointment” rescinded if she did not report to work on the amended date or advise the pay section of the CFGB not to process her pay as she was only a volunteer.

45 In her grievance against the termination from the CFGB, Ms. Way acknowledged that the corrective action requested was to be reinstated, but she could not explain why she would request to be reinstated to a job to which she was never appointed when questioned on this issue by the employer’s counsel.

III. Summary of the arguments

A. For the employer

46 Ms. Way, without disclosing the fact to the CRA, accepted an indeterminate position with the CFGB. When asked, Ms. Way failed to come clean, as seen in her reply of March 31, 2004 (Exhibit E-19), to the Fact-finding Investigation Report.

47 Ms. Wexler’s evidence concerning Ms. Way’s employment status with the CFGB is to be preferred over Ms. Way’s evidence. Ms. Wexler was highly credible and has neither a personal nor a professional interest in this matter.

48 Ms. Way did accept, did report and did request relocation assistance to move to Ottawa. Considering Ms. Way’s academic background and her past as an English teacher, she must be held to her words in the request for relocation (Exhibit E-31): “I have been appointed to an indeterminate position… .” That explains why she did not correct Ms. Wexler when she said “your appointment will be rescinded.” It is also consistent with Ms. Way obtaining a sick leave certificate (Exhibit E-6) to explain her absence from the CFGB and calling in sick each day from March 1 to 5, 2004.

49 Throughout this process, Ms. Way displayed a staggering lack of candour. As a lawyer and union representative, she was not credible when she said that she was unable to understand the Conflict of Interest Code and Guidelines (Exhibit E-22).

50 Ms. Wexler said that there is no such thing at the CFGB as “shadowing” or “voluntary internship” or even “trying out a job.”

51 Even at adjudication, Ms. Way stuck to her story that she did not accept a job at the CFGB and that she had done no wrong. She had an opportunity to be forthright with Mr. Kent and Ms. Charlton and chose not to. Absent an acknowledgement of wrongdoing, behaviour cannot be corrected. Even her own witness agrees with that.

52 Ms. Way said that Ms. Wexler was wrong. So were Mr. Kent and Ms. Charlton. Even her representative had it wrong, according to Ms. Way. Counsel for the employer argued that the grievor “didn’t just fall off the turnip truck.” She knew that she did not have to be invited to take responsibility for her actions or to apologize. That she has never done.

53 Rather than cooperate, Ms. Way was defiant, challenging Mr. Kent’s right to ask questions and challenging the sharing of information between departments. Trust is an integral part of the employment relationship, and Ms. Way has shown the CRA that its trust in her was misplaced. Ms. Way knew that she was in the wrong and that she had not acted in a professional manner, but when caught, her only reply was to claim that the CRA had insufficient evidence, to point fingers at others and to question where management got their information from.

54 I was referred to a number of cases and readings dealing with the duty of honesty and integrity as well as hiring and contracts, some of which I will deal with later in the reasons for my decision.

B. For the grievor

55 Prior to her termination, Ms. Way had a clean disciplinary record and had progressed to a more senior level.

56 There was no caution to the reader/potential applicant in the CFGB’s poster advertising the job concerning a need to report one’s candidacy or whether or not it was an internship. The CFGB knew that Ms. Way continued as a CRA employee.

57 The Conflict of Interest Code and Guidelines (Exhibit E-22) were not exhaustive. They made no reference to “shadowing.” It was left to each employee to determine whether a potential conflict existed. Only summary training was provided in the Code of Ethics and Conduct (Exhibit E-21) without a question-and-answer session allowing an opportunity to inquire.

58 Ms. Way did nothing dishonest. She was on approved leave from the CRA.

59 The initial letter of offer from the CFGB could not be pursued and had expired. There was nothing wrong with moonlighting.

60 At worst, Ms. Way’s behaviour can be characterized as mischievous. She was uncertain if the CFGB position was right for her and she needed time to determine whether any relocation assistance was available and to work out the disposal of her Toronto home.

61 Mr. Werda argued that Ms. Wexler was not credible as she had an interest in the CRA’s handling of the situation.

62 There was no reason to pester Ms. Way to sign the amended letter of offer if, as they claim, the original one was still in place.

63 The fact-finding exercise was poorly handled and lacked procedural fairness and transparency. Mr. Kent failed to answer Mr. Waugh’s questions fully, and conducted the meeting more as an interrogation than an inquiry. Rather than rushing to judgment, the CRA should have refuted each and every point raised by Ms. Way in her reply to the Fact-finding Investigation Report (Exhibit E-19). It is only common sense to salvage employment where possible, and the CRA should have considered the mitigating factors like her lack of prior discipline, her performance and the gravity of her conduct, rather than focusing on her lack of cooperation and lack of remorse.

64 Mr. Werda also referred me to several cases and readings.

IV. Reasons

65 In any discipline case the employer bears the onus to prove, on the balance of probabilities, two things:

1. that the conduct that formed the basis for discipline did occur; and
2. that the discipline imposed was justified in the circumstances.

A. Did the conduct complained of occur?

66 The CRA’s termination letter (Exhibit E-24) sets out the grounds relied upon:

1. Ms. Way accepted an indeterminate appointment with the CFGB in Ottawa.
2. She reported to work at the CFGB in Ottawa.
3. She failed to disclose these facts to CRA management.
4. Ms. Way’s failure to disclose these facts violated the CRA’s Code of Ethics and Conduct and the CRA’s Conflict of Interest Policy.

1. Ms. Way accepted an indeterminate appointment with the CFGB in Ottawa

67 The original letter of offer (Exhibit E-2) dated November 19, 2003, is clear. The job that is being offered is that of Senior Grievance Officer, PM-05, in Ottawa. The appointment was indeterminate. The offer concluded by saying: “Should we not receive a response [by December 3, 2003] it will be considered as a refusal of this offer.” Ms. Way signed and accepted the offer on November 28, 2003, and forwarded her acceptance to the CFGB, which was received by the deadline mentioned above. The effective reporting date was to be January 5, 2004. However, that reporting date was changed to February 23, 2004, following a telephone conversation between Ms. Way and Ms. Wexler on January 16, 2004. A letter dated February 25, 2004 (Exhibit E-7), confirms the amendment to the reporting date and says: “All other conditions remain the same as per your original letter” (Exhibit E-2).

68 I find that Ms. Way did accept an indeterminate position with the CFGB in Ottawa.

2. Ms. Way reported for work at the CFGB in Ottawa

69 Again, the evidence is clear. Ms. Way did report for work at the CFGB in Ottawa on February 23, 2004 (Exhibit E-10).  This was a requirement as is set out in Exhibit E-3. Failure to report on that date would have resulted in the CFGB taking action to have Ms. Way’s appointment rescinded. The word “appointment” is important here as is the word “rescinded.” Those words are consistent with a letter dated April 8, 2004 (Exhibit E-15), addressed to Ms. Way questioning whether it was Ms. Way’s intent to resign her position.

70 Ms. Way’s attempt to distinguish between reporting for work and reporting at work is, at best, semantics. All of the evidence establishes that she was reporting for work: her orientation, the introductions, her being provided with the tools to start the job, her being assigned an office, etc. I will not give this “distinction” more time than it merits, other than to recall one of Abraham Lincoln’s more famous quotes: “It is true that you may fool all of the people some of the time; you can even fool some of the people all of the time; but you can’t fool all of the people all of the time.” Ms. Way’s attempt seems not to have fooled anyone.

71 In examining cases involving one’s intention to quit one’s employment, it is customary to look at both the subjective and objective elements of one’s behaviour. I believe that applies equally here to determine one’s intention to start employment.

72 As Mr. Werda said, there is no problem with Ms. Way applying for a job nor having been screened in for an interview, taking whatever are the required tests and taking leave for personal selection purposes to pursue the staffing action.

73 However, having received a valid offer of employment, one must now decide: stay or go. That is precisely what Ms. Way did in electing to report on February 23, 2004. She had time to mull it over and examine both the pros and the cons of accepting. Considering her background as a teacher in contract law, as a researcher in employment law and as a lawyer with experience in civil litigation, it strains to the breaking point Ms. Way’s consistent argument that she did not accept the CFGB job. I take counsel for the employer’s perhaps colloquial but nonetheless salient point that Ms. Way “didn’t just fall off the turnip truck.” It is not a quantum leap to assume even a basic understanding of the employment relationship from Ms. Way’s background (Exhibit E-26).

74 Of course, Ms. Way reported for work at the CFGB in Ottawa, and her consistent denial under oath, before me, does little to establish her credibility here.

3. Ms. Way failed to disclose to the CRA that she accepted a position and reported for work at the CFGB in Ottawa

75 This Ms. Way acknowledges. Indeed, she maintains that she never accepted a position at the CFGB and that there was nothing to disclose.

4. Ms. Way’s failure to disclose these facts violated the CRA’s Code of Ethics and Conduct and the CRA’s Conflict of Interest Code and Guidelines

76 This aspect requires a closer examination. First of all, the CRA’s Code of Ethics and Conduct (Exhibit E-20) applied to Ms. Way. She received training on its contents on March 12, 2002. On March 13, 2002, Ms. Way signed her confirmation of having received a copy of the Code. At page seven of that booklet is a section on conflict of interest. In the original letter of offer (Exhibit E-27) dated May 4, 1998, and signed by Ms. Way that day it stated that she both read and understood the Conflict of Interest and Post-Employment Code. The package of five documents marked as Exhibit E-28 shows that on no less than five occasions, December 21, 1999; May 10, 2000; September 7, 2001; March 31, 2003, and June 10, 2003, Ms. Way was reminded that she was subject to the Conflict of Interest Code and Guidelines. The Code itself (Exhibit E-22) reads: “They apply to all Agency employees … If you have any questions after reading them, we urge you to talk with your delegated manager.”

77 How then, again, given Ms. Way’s background, can I be expected to take seriously her submission that she did not understand either of the two documents? That they were important to her was made crystal clear. Regularly. If I were to give any credence at all, which I most certainly do not, to the claim that she was unable to understand such an important set of rules, what am I to make of the fact that Ms. Way made no attempt to seek clarity on parts that she believed were not readily understood? Again, Ms. Way’s credibility is, at best, lacking, if not completely absent!

78 However, I have looked at three documents to determine whether, in fact, the CRA’s expectations were made clear to employees:

1. Exhibit E-20:  Code of Ethics and Conduct
2. Exhibit E-22:  Conflict of Interest Code and Guidelines
3. Exhibit E-25:  Discipline Policy

79 The documents are consistent and easily understood by any employee. Ms. Way’s own witness said that “the conflict rules are well known by employees.” The Code of Ethics and Conduct speaks of four values: integrity, professionalism, respect and cooperation. It calls upon its employees to fulfill their responsibilities in an ethical manner and to carry out their responsibilities conscientiously. Specifically, employees are obliged to cooperate and assist in the conduct of an investigation.

80 Repeatedly, the Code reminds the reader that “help is available to you,” “to discuss with your manager if you are unsure how to act” and “to seek advice when in doubt.”

81 Page 14 of the Code deals with off-duty conduct and states that it may attract disciplinary action if it renders an employee unable to perform his or her duties in a satisfactory manner or makes it difficult for the employer to manage its operations efficiently.

82 Ms. Way’s failure to disclose such a fundamental fact as having accepted and reported to an indeterminate job with a different employer in another city meets none of those expectations. Nor does her failure to seek guidance on what she could not understand. In particular, her choices not to cooperate with the fact-finding investigation, to challenge its authority and to act in a defiant manner are the opposite of what were clearly communicated to her as obligations on her part.

83 Ms. Way could have self-identified the problem right up front when she accepted the CFGB position. She did not. Ms. Way could have been honest with Mr. Kent at the fact-finding stage, and she chose not to. She could have been forthright in her reply (Exhibit E-19) to the Fact-finding Investigation Report, but she was not. She could even have, failing the first three opportunities, been open and honest with Ms. Charlton. Again, she was not.

84 Nor was she open even with her own union representative, who was startled to hear much of the evidence for the first time at adjudication. His testimony was that he had taken what Ms. Way had told him at face value, without an opportunity to make any independent inquiry. During cross-examination, Mr. Waugh said: “Everything I’m hearing is contrary to the position I was presented with.”

85 The Conflict of Interest Code and Guidelines (Exhibit E-22) is also clear and is not open to any reasonable claim that it is vague. At page two, it clearly states that: “… each employee is responsible for taking such action as is necessary to prevent real, potential or apparent conflicts of interest.”

86 Ms. Way took no such action.

87 At page 10 of that document, employees are told that they must, before engaging in any outside activity, ensure that that activity will not impair their availability, capacity or efficiency for performing their official duties.

88 Surely working every other week, in another city, for another employer must impair Ms. Way’s availability to perform her CRA duties. That is not difficult to understand.

89 Under the heading “Private and public interests” the Code says that employees “need to be honest, objective, and impartial in [their] own affairs.” Keeping secret the fact that you have alternate employment, which is full-time and indeterminate, while not an outright lie, is not being honest, objective nor impartial.

90 Ms. Way’s representative, in his submission, argued that Mr. Kent’s fact-finding exercise was not transparent and that it was not open. Yet he somehow asks me to accept that Ms. Way’s subterfuge was completely acceptable. Mr. Werda stated that Ms. Way had not been dishonest, only mischievous at worst. That understatement and double standard is miles from reality, and this late attempt at trivializing repeated transgressions of fundamental expectations lies at the heart of the termination.

91 The Discipline Policy of the CRA (Exhibit E-25) is clear and was often repeated to her; the expected standard of conduct is embodied in the four CRA values, which are integrity, professionalism, respect and cooperation. It is also clear that violations of the Code of Ethics and Conduct will not be tolerated.

92 To sum up, there is absolutely no doubt that Ms. Way’s behaviour throughout the period February and March 2004 fell well short of what she knew was expected of her. She knowingly and repeatedly violated both the Code of Ethics and Conduct and the Conflict of Interest Code and Guidelines.

93 Beyond her failing to meet the CRA’s expectations, what should be made of her dealings with the CFGB? While her behaviour towards the CFGB is not a substantive issue in this grievance, it does form part of the context that I must consider in assessing whether or not the penalty was appropriate. At the very least Ms. Way deceived the CFGB in the same way that she deceived the CRA. She was not honest or forthright with them. In the case of the CFGB, Ms. Way went beyond failing to disclose. In that case, Ms. Way called in sick each and every day, from March 1 to 5, 2004.

94 Clearly she was not sick. Rather, she was at work all that week at the CRA in Toronto. Ms. Way obtained a sick leave certificate from Dr. Choi in Toronto (Exhibit E-6). This certificate, dated March 4, 2004, states: “Ms. Way is off all this week due to medical reasons [emphasis in the original].”

95 Ms. Way said that I should not consider the fact that she applied for sick leave, since she did not submit the certificate. She said that it was provided to Ms. Wexler without her consent by her union representative. All she did was call in sick each day.

96 That raises other concerns. Did Ms. Way mislead Dr. Choi? Why did Ms. Way obtain a certificate in the first place if not to submit it as proof to the CFGB of the legitimacy of her absence?

97 Ms. Way could offer no real explanation. As stated earlier, I need not answer those questions in order to determine whether the termination by the CRA should be upheld. However, it does go to Ms. Way’s credibility and to her request for reinstatement.

98 Of course, at the end of the day I must determine whether repeatedly violating known behavioural rules should result in termination. Termination is the most harsh employment penalty a public service employee can face. It is, and ought to be, reserved for only the most serious infractions.

99 Mr. Werda argued that whenever possible employment relationships should be salvaged, and I agree.

100 Ms. Clifford says that Ms. Way has no future with the CRA as they can no longer trust her to abide by their rules and that without trust, the employment relationship cannot continue.

101 Sadly, I cannot but agree. The penalty is severe but justifiable. Brown and Beatty, Canadian Labour Arbitration. 4^th ed., at 7:3330, state the following: “Indeed, some behaviour is so unethical and so inconsistent with the goals and objectives of an enterprise that it raises real doubts about the employee’s capacity and/or willingness to adhere to the most fundamental rules of honesty and loyalty… .”

102 A part of Ms. Way’s behaviour is her refusal to accept responsibility for her actions. This is what continues to trouble the CRA. Failure to comply with management’s reasonable expectations is one thing. Vainly, in the face of the weight of the evidence, denying any wrongdoing at every point up to and including adjudication is quite another.

103 Ms. Way has done nothing to convince the CRA of her rehabilitative potential and that it is possible to salvage the employment relationship, to quote M. Werda. What reason has the CRA to anticipate a brighter future should they reinstate Ms. Way?

104 On the other hand, Ms. Way has given the CRA ample reason to conclude that the employment relationship is moribund.

105 When asked, Ms. Way stated that she did not accept a position with the CFGB. She argued that a change in her reporting date, done two days after she actually reported for work, renders her original acceptance null and void.

106 When asked whether she reported for work at the CFGB, Ms. Way claimed that she did not. She explained that her arrival on the pre-arranged reporting date was merely shadowing a job, just checking it out — a fiction she chose not the share with the CFGB.

107 Ms. Way says that she was not paid. Clearly, the evidence shows that she was issued and received a salary cheque (Exhibit E-16). Ms. Way returned the cheque, and in her opinion that shows that she was not gainfully employed. She is clearly wrong in this opinion.

108 Ms. Way says that she did not apply for sick leave benefits from the CFGB. All she did was report to Dr. Choi, obtain a sick leave certificate covering the week she was at work at the CRA and call in daily to the CFGB stating that she was sick. Again, I find that Ms. Way’s behaviour was ongoing and not a single and isolated incident. One only wonders how long this charade might have lasted had things not come to a head on March 10, 2004.

109 In Royal Columbian Hospital v. Hospital Employees’ Union (Saligumba Grievance), [2001] B.C.C.A.A.A. No. 39 (QL), the arbitrator writes, at paragraph 119:

…

A critical issue in assessing whether the employment relationship has been irreparably severed is whether the grievor has truly recognized and acknowledged her wrongdoing such that it can be concluded she would not continue to engage in such misconduct in the future if she were reinstated… .

…

I agree without reservation. Ms. Way fails to recognize or acknowledge any wrongdoing. I have no confidence that Ms. Way has learned anything from this whole process. Her prognosis for a successful reinstatement is negligible, and her grievance must be, and is, dismissed.

110 I would like to thank both Ms. Clifford and Paula Warnholtz, Senior Staff Relations Advisor, CRA, for their patience throughout the many lengthy delays caused by Mr. Werda’s consistent late arrivals for this hearing.

111 For all of the above reasons, I make the following order:

V. Order

112 The grievance is dismissed.

June 5, 2008.

Barry Done,
adjudicator