FPSLREB Decisions

I. Individual grievances referred to adjudication

1 The grievor, Grant Shaver, was employed as an investigation and control interviewing officer (sometimes called an integrity officer) and he worked in the employment insurance operations of the Department of Human Resources and Skills Development, Service Canada ("the respondent"). 

2 This is a decision about three issues, contained in three grievances: whether the respondent had just cause to suspend the grievor in September 2008; whether the respondent had just cause to subsequently terminate the grievor's employment in November 2008 (retroactive to September 2008) because he accessed without authorization confidential computer systems at work and then disclosed information in those systems; and whether the respondent acted reasonably when it decided to revoke the grievor's security status (called "reliability" status) in December 2008. 

3 The grievor admits he accessed and disclosed some information without authorization. There are disputes about whether I, as adjudicator, have jurisdiction over the first and third issues, the suspension from employment and the revocation of the security status.   

II. Positions of the parties

4 According to the respondent, the grievor admitted that he accessed databases he used in his work to provide some of his friends with information and advice about their employment insurance claims. As well, he accessed the databases in order to investigate people who were involved in a dispute with him over the operations of the strata council in the apartment where the grievor lived. A strata council is the governing structure of a multiple residence apartment.  The respondent submits it was entitled to suspend the grievor while those matters were investigated. In any event, the suspension was an administrative matter and an adjudicator does not have jurisdiction over it. With regards to the dismissal of the grievor, a full investigation of his misconduct demonstrated there was just cause. Dismissal was an appropriate penalty because of the trust position the grievor held, among other reasons, according to the respondent.  The grievor's admission of some misconduct was noted, as were his years of service, but the breach of trust was significant enough to override those mitigating factors. The respondent agrees that I have jurisdiction over the dismissal.

5 Finally, the respondent submits that departmental security officers investigated the grievor's security status and they concluded that the conduct of the grievor also warranted the revocation of his security status. That was a reasonable decision and, in any event, an adjudicator has no jurisdiction over security clearance decisions, according to the respondent. The respondent seeks the dismissal of the three grievances.

6 The Public Service Alliance of Canada ("the bargaining agent"), on behalf of the grievor, submits that an adjudicator has jurisdiction to decide the issues of his suspension and revocation of security clearance, as well as his dismissal. The grievor objects to delays in the respondent's investigation and he submits that his suspension was significantly longer than it should have been. With regards to the dismissal, it is submitted that the respondent does not have just cause to terminate the grievor. He has 18 years of discipline-free service, he cooperated with the respondent's investigation including making a frank admission of his misconduct and the respondent has not proven some significant elements of its case against him. The bargaining agent and the grievor dispute the extent of information accessed by the grievor, as alleged by the respondent, and the extent to which he disclosed it to outside parties. According to the grievor, he disclosed the information only to his wife and she inadvertently disclosed it to one person. The bargaining agent and the grievor also challenge the credibility of the source of the respondent’s allegations against the grievor because they came from a person who had a vendetta against the grievor and his wife as part of a dispute within the grievor’s strata council.  And the grievor submits that the processes used in the investigation of him were unfair and motivated by bad faith because, among other things, he was not given the opportunity to present his case to the Deputy Head of his department.

7 With regards to the grievor's security clearance, it is submitted by the grievor and the bargaining agent that it was unreasonably revoked by the respondent. The bargaining agent and grievor submit that the grievor should be reinstated, with a modest suspension, and his security clearance should be restored.

III. Background

8 Among other things, the respondent provides employment insurance services to those qualified to receive those benefits. It has offices at various locations in Canada and the grievor was employed at the respondent’s Vancouver, British Columbia, offices at the time of his dismissal.

9 The grievor was classified as PM01 and his position was investigation and control interviewing officer with the Integrity Office of the respondent. Some documents refer to him as an integrity officer. One of his duties was to search in databases for groups of individuals who were receiving employment insurance benefits and who could then be brought in for an information meeting with the grievor. At the meeting the grievor would remind the attendees about their rights and responsibilities and he would respond to any questions that the group would have. The grievor would also make some preliminary reviews of the claims of the people in his groups and pass on any concerns to another employee, usually an Investigating Officer. The grievor was not an Investigating Officer. 

10 The grievor commenced employment with the respondent in 1990 as an intern and then he became an indeterminate employee. He swore the following "Oath of Office and Secrecy" on January 1, 1992:

I solemnly and sincerely swear that I will faithfully and honestly fulfill the duties that devolve on me by reason of my employment in the Public Service and that I will not, without due authority in that behalf, disclose or make known any matter that comes to my knowledge by reason of such employment. So help me God.

11 He also took the following "Solemn Affirmation of Office and Secrecy":

I solemnly and sincerely affirm that I will faithfully and honestly fulfill the duties that devolve on me by reason of my employment in the Public Service and that I will not, without due authority in that behalf, disclose or make known any matter that comes to my knowledge by reason of such employment.

The date of this affirmation is not in evidence but it was taken when the grievor started full-time work.

12 The grievor used the following databases at work: OLIS, FTS, SSA and GISP. At various times he had access to other programs but these were the ones he used on a regular basis. By means of these programs the grievor had access to personal information about individuals such as their date of birth, address and social insurance numbers. For example, he could access this information through a screen called "EN04" that is generated through OLIS. The respondent submits that the grievor had access to a program called Easy Access although the respondent's investigation, discussed below, revealed that the last time he used Easy Access was in November 2007. In his evidence the grievor described using Easy Access some time ago but he stopped using it when the work he was doing with that program was transferred to another part of the respondent's operations. He also said that his password for Easy Access had expired. 

13 Prior to the grievor’s dismissal from his employment in November 2008, he had 18 years of service. The respondent relies on an incident in September 2007 when there was an allegation that the grievor had humiliated and intimidated participants in his meetings. The allegation included an assertion that the grievor inspired fear in the people attending the meeting and that he had represented himself as an Investigator. According to the respondent this required corrective action and it was discipline. According to the grievor and the bargaining agent this was not discipline and the grievor has a discipline-free record. 

14 As with any other employee, the grievor was subject to a number of policies with respect to his conduct. When the grievor was hired he signed a “Memorandum of Understanding” that was subtitled “Restriction on Employee Involvement in Certain Matters”. Among other things, his signature represented his agreement with the following statement:

It is not permissible for employees to be directly involved in, or attempt to influence, the recording, processing or adjudication of a claim or application for a grant, work permit, visa, or any other benefit administered by the Commission, on behalf of a relative or friend or in which they have a personal interest or concern, financial or otherwise. An employee must advise his/her supervisor immediately when faced with such a situation.

15 The grievor was also subject to a Values and Ethics Code for the Public Service. This document includes the following:

…

Public Service Values

Public servants shall be guided in their work and their professional conduct by a balanced framework of public service values: democratic, professional, ethical and people values.

These families of values are not distinct but overlap. They are perspectives from which to observe the universe of Public Service values.

Democratic Values: Helping Ministers, under law, to serve the public interest.

• Public servants shall give honest and impartial advice and make all information relevant to a decision available to Ministers.

• Public servants shall loyally implement ministerial decisions, lawfully taken.

• Public servants shall support both individual and collective ministerial accountability and provide Parliament and Canadians with information on the results of their work.

Professional Values: Serving with competence, excellence, efficiency, objectivity and impartiality.

• Public servants must work within the laws of Canada and maintain the tradition of the political neutrality of the Public Service.

• Public servants shall endeavour to ensure the proper, effective and efficient use of public money.

• In the Public Service, how ends are achieved should be as important as the achievements themselves.

• Public servants should constantly renew their commitment to serve Canadians by continually improving the quality of service, by adapting to changing needs through innovation, and by improving the efficiency and effectiveness of government programs and services offered in both official languages.

• Public servants should also strive to ensure that the value of transparency in government is upheld while respecting their duties of confidentiality under the law.

Ethical Values: Acting at all times in such a way as to uphold the public trust.

• Public servants shall perform their duties and arrange their private affairs so that public confidence and trust in the integrity, objectivity and impartiality of government are conserved and enhanced.

• Public servants shall act at all times in a manner that will bear the closest public scrutiny; an obligation that is not fully discharged by simply acting within the law.

• Public servants, in fulfilling their official duties and responsibilities, shall make decisions in the public interest.

• If a conflict should arise between the private interests and the official duties of a public servant, the conflict shall be resolved in favour of the public interest.

People Values: Demonstrating respect, fairness and courtesy in their dealings with both citizens and fellow public servants.

• Respect for human dignity and the value of every person should always inspire the exercise of authority and responsibility.

• People values should reinforce the wider range of Public Service values. Those who are treated with fairness and civility will be motivated to display these values in their own conduct.

• Public Service organizations should be led through participation, openness and communication and with respect for diversity and for the official languages of Canada.

• Appointment decisions in the Public Service shall be based on merit.

• Public Service values should play a key role in recruitment, evaluation and promotion.

…

16  The same document includes measures to prevent conflicts of interest, such as the following:

…

Public servants have the following overall responsibilities:

a. In carrying out their official duties, public servants should arrange their private affairs in a manner that will prevent real, apparent or potential conflicts of interest from arising.

b. If a conflict does arise between the private interests and the official duties of a public servant, the conflict should be resolved in favour of the public interest.

Public servants also have the following specific duties:

a. They should not have private interests, other than those permitted pursuant to these measures, that would be affected particularly or significantly by government actions in which they participate.

b. They should not solicit or accept transfers of economic benefit.

c. They should not step out of their official roles to assist private entities or persons in their dealings with the government where this would result in preferential treatment to the entities or persons.

d. They should not knowingly take advantage of, or benefit from, information that is obtained in the course of their official duties and that is not generally available to the public.

e. They should not directly or indirectly use, or allow the use of, government property of any kind, including property leased to the government, for anything other than officially approved activities.

…

17 The grievor took a number of training courses as an employee.  The evidence is that between 1995 and 2008 he took courses primarily in areas related to his work (calculating benefit rate, interview skills, Outlook calendar, etc.). The respondent's records indicate he also took one course specifically on ethics (June 2001) and other courses such as general training sessions. The respondent submits that when the grievor attended these courses he learned about department policies such as those set out above. The grievor asserts that, generally, he received minimal training and he cannot remember taking a course on ethics.

18 Employees such as the grievor are also subject to policy with regards to the security of the assets of the respondent as well as personal security. According to section 10.9 of the Treasury Board policy entitled Government Security Policy (dated July 6, 2009, effective February 1, 2002), "The Government of Canada must ensure that individuals with access to government information and assets are reliable and trustworthy."

19 The security of the respondent's operations is covered by a separate set of policies. J. Scott Macdonald, the departmental security officer (DSO) at the material times of these grievances, testified about this policy.  A DSO, such as Mr. Macdonald, is delegated responsibility from the Deputy Head of the respondent for safeguarding the employer's information and assets. These responsibilities include business continuity planning, information technology security, physical security, investigations and human resource security clearances. Under human resource security clearances the DSO has a responsibility to manage the approval, denial and revocation process for all reliability security clearances. The grievor questions whether the DSO in 2008 had the required delegated authority in 2008 to revoke his security status.

20 Mr. Macdonald testified that prior to February 2002, there were two broad security classifications, "protected" and "classified". Classified included three sub-categories, "confidential", "secret" and "top secret", and these have not changed.  The protected classification used to include three sub-categories, "A", "B" and "C", but in February 2002 the “A” sub-classification was eliminated. The result is that the current minimum level of security clearance is the former “B” sub-classification. This is now called “reliability status” (it was referred to as “enhanced status” prior to February 2002) and it is the minimum clearance that applies to all employees. Therefore, a person cannot work for the respondent unless he or she has either reliability status or a higher security clearance.

21 The grievor had reliability status in order to perform his duties as an investigation and control interviewing officer in the Integrity Branch of the respondent.  He was qualified to review “particularly sensitive” information relating to personal, medical or financial matters. Examples given in the “Information Classification Guide” (revised December 2006) include personal screening of consent and authorization, pay, test results, character references, conflicts of interest, eligibility for social benefits, etc.

22 As will become apparent, the facts in this case include the respondent's investigation of allegations that the grievor accessed confidential information at work about a number of individuals. The respondent began with a list of names and the investigation revealed that only some of these names were accessed by the grievor.  The people who the grievor did look up did not testify and they have virtually no involvement in the issues in these grievances except they were thought by some to be involved with the grievor and his wife in a bitter dispute at the strata council. For privacy reasons I have anonymized the identities of these people by the use of "AA", "BB", etc. Generally, if an individual did not testify, or was not otherwise a significant participant in the issues in these grievances, I have identified him or her in this way. I have also deleted all social insurance numbers where they appear in documents that are reproduced in this decision.

IV. Events giving rise to the grievances

23 In 2004 or 2005 the grievor and his wife, Nyla Kazakoff, purchased an apartment in a strata council building in Surrey, British Columbia. He testified that this was a difficult move because it involved leaving an urban area of Vancouver, Yaletown, and then living in an area of high crime, among other problems. In a statement dated June 25, 2008, the grievor stated, "My wife and I are scared of some people in Surrey; they are a different breed of people, than we are use [sic] to, from being in Yaletown for years. People are rude, not very educated and seem not to care about things". In the same statement the grievor said that a child "… was recently left dead on a door step only a couple of blocks from our home". 

24 According to the grievor, after their move to Surrey, he and his wife noticed a number of problems with the management of the strata apartment and they began to talk to other owners about these problems. One person they talked to was Mr. Todd Decker, who lived across the hall from them with his common law partner, AA. Ms. Kazakoff and Mr. Decker became active in the affairs of the apartment and they were elected to the strata council. They worked together on a number of issues and formed a so-called “bloc” to effect the changes that they wanted.

25 Their collaboration included getting together in each others' apartments. These were often social occasions where alcohol was consumed. During one of these occasions, perhaps in mid-2007, Mr. Decker confided to the grievor and his wife that he had bought another suite in the same building. The reason for Mr. Decker's confidence was that the bylaws of the strata prevented owners from owning a second suite except in certain circumstances. The grievor and his wife assured Mr. Decker that his confidence would be respected.

26 By late 2007 and early 2008 the relationship between Mr. Decker and AA with the grievor and his wife became strained and then very difficult. The evidence included counter-allegations by Mr. Decker and the grievor about, for example, disputes over shovelling snow and allegations of assaults by one party against each other. By March 2008 things had deteriorated to such an extent that the relationship could fairly be described as hostile.

27 Mr. Decker testified that one of his concerns in dealing with the grievor and his wife was his ownership of the second apartment. He was very concerned that the grievor and his wife would report the situation to the strata council and cause Mr. Decker considerable difficulty. When the relationship between Mr. Decker and the grievor and his wife changed from friendship to hostility, Mr. Decker’s concerns became heightened. He testified that he felt pressured by Ms. Kazakoff in particular to do various things so that his ownership of the second apartment would not be exposed. Mr. Decker testified that he believed that if he did not go along with Ms. Kazakoff and the grievor they would report his second apartment to the strata council. As an example of his concern Mr. Decker said that, after a telephone exchange of profanities, Ms. Kazakoff wrote an email to him on March 27, 2008 saying, "Todd you better think twice before calling me a fucking bitch when I know you have 5 cats and an illegal rental!"Mr. Decker testified that he felt intimidated and physically threatened by the grievor and his wife, Ms. Kazakoff. Mr. Decker also referred to an email from the grievor also dated March 27, 2008 that stated, "Todd you are as dumb as a doorknob!!! I look forward to chatting to you in person one day soon, I would like to know if you are going to talk to me like you did to Nyla. You made a very poor mistake dude!!!!!! Love Grant."

28 Mr. Decker testified that he also felt threatened when he came across the grievor and his wife in the hall or elevator of the apartment complex. He explained that, on one occasion, Ms. Kazakoff used her car “as a weapon” in the parking lot by pinning Mr. Decker and AA against a car. The grievor testified that Ms. Kazakoff did not drive and did not have a driver's license. Ms. Kazakoff testified but did not comment on this.

29 In the normal course these events would be marginally relevant to the grievances in this case. However, the grievor relies on them because Mr. Decker is the person who complained to the respondent about the grievor’s access and disclosure of confidential respondent information. That is, Mr. Decker's complaint to the respondent set in train the events that ultimately led to the grievor's suspension, dismissal and loss of security status. According to the grievor, Mr. Decker's complaint and evidence should not be believed because his motivation was to discredit the grievor rather than to tell the truth.

30 According to the testimony of Mr. Decker, the information he passed on to the respondent and he gave in his evidence, arose during the time when he had a friendly social relationship with the grievor and his wife. The grievor, according to Mr. Decker, repeatedly held himself out as a “field investigator” for Employment Insurance. He did this in social conversations as well as at meetings of the strata in the apartment. Over more than one conversation, according to Mr. Decker, the grievor said that he “was looking at all of the names of the people on the strata council” and that “he [the grievor] is the master of revenge”. In those conversations the grievor said to Mr. Decker and AA (AA did not testify) that because he was an investigator it was very simple to get information about people. Mr. Decker testified that he was shocked by that statement because he works as a nurse and “there are a lot of safeguards on the information that I handle.” Mr. Decker said to the grievor that he did not believe him and to this the grievor replied that he had looked up Mr. Decker’s name as well as AA’s but, “don’t worry you are clear”, according to the testimony of Mr. Decker. To this AA replied that there are a lot of “[AA]’s” in Richmond and the grievor said that he found AA because only one person was employed in the same work as AA.

31 Mr. Decker also testified that the grievor stated that he had found out information about BB, a former member of the executive of the strata council. The information was that BB owed $500 to Employment Insurance as an overpayment. The grievor also knew BB's birth date, he knew BB’s astrological sign as well as BB’s trade. To this, Mr. Decker testified, he was “stunned”.

32 About that time BB’s spouse was circulating a letter among the apartment owners in the strata to have Mr. Decker and Ms. Kazakoff removed from the strata council. Also by this time the relationship between Mr. Decker and AA with the grievor and his wife had become hostile. In late March 2008 Mr. Decker took action in two ways. First, he went to all members of the strata council and confessed that he had a second apartment that he was renting. When he attended at the apartment of Mr. and Mrs. BB, he asked Mrs. BB whether the information given to him by the grievor was accurate. He explained the information, Mrs. BB was upset and she said it was accurate but very personal information. Mrs. BB did not testify.

33 The second action taken by Mr. Decker was to make a complaint to the respondent about the grievor. In his testimony Mr. Decker stated that his motivation was that he was upset that the grievor was using information from his work to get an advantage in the conflicts that were taking place in the strata council. Again, the grievor’s position is that Mr. Decker's complaint to the respondent was motivated by those fights and should be dismissed or discounted for that reason. 

34 Mr. Decker’s complaint to the respondent is dated March 31, 2008. This was ultimately received by Ms. Wanda Morrison, the acting manager of the grievor at the time. She did not testify. However, documents entered into evidence indicate that she interviewed Mr. Decker on April 11, 15, 16, and 21, 2008.  As well, her notes were entered in evidence and they include a list of members of the strata council that Mr. Decker thought the grievor might be looking up at work. These numbered twelve individuals.  For the privacy reasons discussed above I will not name all of them and it will be seen below that a smaller group from this list is at issue. 

35 Ms. Morrison talked to BB on April 16, 2008 and her notes record that he was "… concerned that his private information has been compromised… ."  Ms. Morrison's notes also record that Mr. Decker was concerned about his personal safety and there was a discussion between Ms. Morrison and Mr. Decker about involving the police. On April 21, 2008, Ms. Morrison told Mr. Decker that the respondent was proceeding with an investigation and that the grievor would at some point be aware of the investigation.

V. The respondent's investigation

36 Following the complaint by Mr. Decker, and his discussions with Ms. Morrison in March and April 2008, the respondent commenced an investigation. The first step was an interview of the grievor by Wendy Heon with the Special Investigation Unit of the respondent. Ms. Heon also interviewed a number of other people including Mr. Decker, BB and other members of the strata.

37 As part of her investigation, on June 3, 2008, Ms. Heon requested that Mr. Gilles Touchette, an IT Security Investigator, do an investigation of the grievor's access to various databases. In an email to Mr. Touchette of that date she said the following:

As discussed yesterday - would like you to do some more checks including Easy Access. Not sure if you know the story here but a few people are stating that the employee boasted about accessing databases at work with respect to [BB] - he gave out information about [BB] including where he worked, that he had received a trade ticket two years previously, his age and the fact that he owed EI just under $500.00.

The employee also boasted that he had checked on other individuals. I know that you did the usual checks and came up with the fact that the EE [employee] had been on the EN04 screen with respect to [BB] and nothing further. That screen however would have supplied him the SIN of [BB].

Would you please check further with Easy Access and whatever other systems that are used to collect data on clients that our employees would have access to with respect to the following individuals. I would like to go back one year.

1. Todd Decker …

2. AA…

3. BB …

4. CC …

5. DD …

6. NN …

7. FF …

8. GG …

9. HH

10. Nyla Kazakoff

11. JJ

12. KK

13. LL

14. AA[repeated]

I realize that you don't have any SIN's for 8-14 [for privacy reasons, social insurance numbers for 1-8 above are not reproduced here; numbers 9-14 did not have social insurance numbers listed]. These people all live in Surrey in the same complex as the employee - address [address deleted] - maybe that would be helpful.

The employee's previous manager advises that the employee commonly used Easy Access - not the other systems - furthermore if he should not have access any of the above persons as all live in Surrey - not in Vancouver which is the employee's client base [sic].

38 At this point it might assist the reader to know that the grievor ultimately admitted that he looked up the names of five individuals: BB, JJ, LL, KK and another person, MM. In his evidence in this adjudication he denies he looked up the names of Mr. Decker or AA. However, he previously admitted on two occasions during the respondent's investigation that he looked up the name of Mr. Decker. Also, he denied looking up AA's name on two occasions during the investigation, but he did not deny it on one occasion. The details of these events are discussed below.

39 Returning to Mr. Touchette's investigation, he is an IT Security Investigator with Service Canada and is a member of the Special Investigation Unit. He has training and experience in investigating computer systems and he has access to various investigative programs available only to investigators. Mr. Touchette provided a number of documents that contained information he retrieved from databases to which the grievor had access.

40 A key part of Mr. Touchette's investigation was a review of how the grievor used his seven digit user code in the databases he had access to. This review indicated that the grievor made a number of searches of “[JJ]”. These included variations such as “[JJ], [first name deleted]; "[JJ], [variation on first name deleted]"; "[JJ], [second variation on first name deleted]"; "[JJ] [third variation on first name deleted]", "[JJ] [fourth variation on first name deleted]"; and others.  Similarly, the grievor searched “[BB], [variation on first name deleted]” on four occasions. Mr. Touchette explained that the reason for these different searches was that the database contained more than one “[JJ]” and the grievor was “fishing” for the right person. The variations on the first names were routine ways of narrowing a search or searching people with the same name. In his evidence the grievor indicated he was familiar with these commands as part of his work.

41 According to Mr. Touchette, the grievor was able to find the names of JJ and BB in the OLIS system, two of the names on the list Mr. Touchette received from Ms. Heon. From there the grievor was able to go to a screen called EN04 and find BB's address, date of birth, language, telephone number and information about an overpayment to BB. An overpayment is an amount of money that is owed by someone to Employment Insurance. Mr. Touchette also said that, although the grievor was able to find JJ's name, there was no other information on JJ in the system. 

42 Mr. Touchette was also able to determine that the grievor searched the names of KK, LL and MM but the system had no information on them. He explained that the databases included people who had made a claim for employment insurance over the past year or who had a current claim. Therefore, if a person had not made a claim in that time period, or did not have a current claim, his or her name would not be in the database. In the cases of KK, LL and MM there was no information and, therefore, they did not have a current or recent claim for benefits. Mr. Touchette also testified that none of the five names the grievor searched were individuals for which the grievor had any work connection. That is, none of the names were files assigned to the grievor as part of his work as an investigation and control interviewing officer.

43 In cross-examination Mr. Touchette stated that he did not know if the grievor had used the Easy Access program because Mr. Touchette could not access that program. He confirmed that the only information of any detail found by the grievor was that of BB. Mr. Touchette agreed that he did not find any information that the grievor searched Mr. Decker's name.

44 About this same time, on June 5, 2008, the grievor was interviewed by Ms. Heon.  A lengthy transcript of this interview was entered in evidence and it records the grievor's admission that he accessed information he was not authorized to access. Specifically, he admitted that he "checked on" Mr. Decker and BB; there was "nothing on Todd [Decker]" but BB "had a previous claim".  He denied giving information about BB to anyone except his wife. He was asked more than once whether there were any more people he checked, he said no and then he agreed he checked LL's name. It was also made clear to the grievor that the question was whether he went only "… as far as the initial checking…", of names as opposed to going further and finding information about individuals. He was asked whether he looked up AA's name and his answer was, "I don't believe I did". The grievor denied he had checked on his wife and other names.  The grievor also said that, "over the past 15 years", he had checked information at work to help his friends with their EI claims; he would "Give them some advice, trying to get them into a program [and] help them get back to work … all I did was advise them your claim looks fine". He agreed he was not authorized to do those information checks.

45 Following the interview of June 5, 2008, the grievor prepared and sent a written statement of some length, dated June 25, 2008. It went to a representative of the bargaining unit and it was ultimately received by Ms. Heon. In it he said he was sending the statement because "… I did not know [if] I could trust my union rep. He works in my office and if anyone got word of this where I work, it would cause me even more embarrassment, anxiety and stress."  I presume that the grievor's concerns about privacy had been resolved by the time he sent this document to the bargaining agent. He described the history of the move from Vancouver to Surrey and the difficulties in the strata council. By way of explanation of his actions he stated, among other things:

…

I needed to know if she [the grievor's wife] would be okay being on strata and what kind of people she was dealing with. I checked on a handful of them to see what kind of people I was dealing with no one came [up] except, for [BB].  He had a dormant claim with nothing on it, just showing an overpayment. I told my wife she had nothing to fear from what I could find, the only thing I saw, was [BB] owed about $500 or $600 dollars. He was not on EI and Todd [Decker] was wrong.

…

Please accept my sincere apology, I am truly sorry.

46 In a subsequent report, dated August 13, 2008, Ms. Heon wrote the following about her interview of the grievor:

On the 5^th day of June 2008, Grant Shaver was interviewed by the investigation committee in the presence of his union representative Frank Karabotso, Shop Steward.

During this interview Mr. Shaver admitted without hesitation that he had accessed client information unrelated to his duties, job requirements. Mr. Shaver explained that he carried out these non work related queries on friends as well as neighbours.

With respect to friends, Mr. Shaver stated that he made these queries in order to assist his friends who were enquiring as to the status of their claims. He would provide them with advice and try to get them into programs to help them get back to work. Mr. Shaver was unable to provide the investigation committee with names of individuals.

In relation to his neighbours living in the same condominium complex, Mr. Shaver explained that his wife was on the Strata council and was concerned about some of the people who were on the council and he decided to see what “they were dealing with”. Mr. Shaver initially acknowledged that he checked on Todd Decker and [BB] to see if they were EI claimants. Furthermore he admitted to accessing information on [AA] and with respect to other members of the Strata council; he may have accessed the information of [JJ] and [LL] but couldn’t recall if he accessed files of other names presented to him.

47 In her report Ms. Heon also summarized the grievor's written statement of June 25, 2008 as follows:

Grant Shaver explained that he was providing this additional statement as he was: “not sure if I could trust my union rep.  He works in my office ...”. In this statement Mr. Shaver elaborates on the situation with the Strata Council, members of the Strata council and the dynamics affecting the interactions between individuals concerned with both. Mr. Shaver explains further that he was concerned about the safety of his wife and himself and that they lived in fear alluding to violent criminal activity that had taken place at or near his complex. His wife’s appointment to the Strata Council led him to check on a handful of individuals to see what he was “dealing with” as he “needed to know if she would be okay on strata and what kind of people she was dealing with”. Additionally, Todd Decker, the complainant, told Mr. Shaver and his wife that [BB] “was on EI and working under the table.” Enquiries he made revealed nothing on anyone except for [BB], who had a dormant claim showing an overpayment. Mr. Shaver states that “I told my wife she had nothing to fear from what I could find, the only thing I saw, was [BB] owed about $500 or $600 dollars. He was no on EI and Todd was wrong.”

Mr. Shaver advised that after meeting with the investigation committee he spoke with his wife who advised that she (Nyla Kasakoff), had told Mr. Decker without realizing it that there was an overpayment of $600.00 on [BB] because Mr. Decker was persistent in asking about [BB] and she “just wanted him off her back”.

In conclusion, in this statement Mr. Shaver expresses that he is dependent on his employment, is remorseful and asks for forgiveness for “checking up on a few people”, reiterating that he gave out no information, that his only goal was to ensure his wife’s safety. Mr. Shaver wrote: “Please accept my sincere apology, I am truly sorry.

[Sic throughout]

48 The findings of Ms. Heon’s report of August 13, 2008 were as follows:

Findings

Grant Shaver is an Investigation and Control Interviewing Officer and as such has access to Service Canada databases containing sensitive information on Canadian citizens.

Grant Shaver, subdued and apprehensive during his interview, readily acknowledged that he accessed a number of client files not related to his job functions, for personal benefit and to provide assistance to people known to him.  While Mr. Shaver denies having shared any information that he accessed; the information in possession of Todd Decker and [AA] brings that assertion into question. Furthermore, in his second statement received from CEIU, Mr. Shaver admits to having told his wife, Nyla Kasakoff, that [BB] owed the Government in the vicinity of $500.00 or $600.00.

This administrative investigation has demonstrated that Grant Shaver accessed client files without justifiable authorization for his own benefit. Furthermore, the investigation has illustrated that Grant Shaver disclosed client information to third parties, specifically, his wife Nyla Kasakoff and based on the balance of probabilities, Todd Decker and [AA], and in doing so, committed a breach of trust.

A review of Grant Shaver’s reliability status will be undertaken.

49 As a result of Ms. Heon's report the respondent decided to suspend the grievor from his employment. This was communicated to him in a letter from Mr. Andy Netzel, Regional Executive Head, Service Canada, dated September 29, 2008:

This letter is to inform you that in accordance with Section 12(1)(c) of the Financial Administration Act and under the authority delegated to me by the Deputy Minister, I am suspending you without pay effective September 30, 2008 pending an investigation.

This investigation is the result of you inappropriately accessing departmental computer systems.

During this period of suspension you are not to appear on HRSDC/Service Canada premises. Should you need to contact the office for any reason, you are to contact Bernice Cook, Service Delivery Manager, at [telephone number deleted].

Should you disagree with my decision, you are entitled to present a grievance within twenty-five (25) days following the receipt of this letter.

50 In his evidence Mr. Netzel acknowledged that section 12(1)(c) of the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA) was a reference to a disciplinary suspension. However, he also asserted that the suspension was administrative and the reference in the letter to section 12(1)(c) of the FAA was an error. The bargaining agent submits that this is not an error and the grievor was given a disciplinary suspension. This is discussed below.

51 The grievor filed a grievance dated October 1, 2008, with regards to the unpaid suspension of his employment. This grievance is one of three grievances that are the subject of this adjudication. The corrective action requested in the grievance was:

That the suspension be lifted immediately and I be allowed to return to work to fully resume my duties. In the alternative, that the suspension be lifted immediately and I be allowed to return to work with duties which limit my computer access until the employer's investigation concludes.

Should the employer not have limited duties available that I be granted leave with pay.

That the employer conducts and concludes this investigation without delay.

That I be reimbursed for all lost wages, benefits and pension credits.

That all records on this matter be removed from my personnel file.

That I be made whole.

52 The respondent's investigation continued and the grievor was interviewed twice by his permanent manager, Bernice Cook. Notes of both interviews were taken by a third person, they were entered in evidence and the grievor did not dispute their accuracy. 

53 The first interview with Ms. Cook took place on October 28, 2008. The grievor denied that he had been given values and ethics training; he said it was never offered to him. The grievor also stated that he had no discipline in the past. He explained his actions by saying, "… I have never done anything in malice; I never passed on any information to anyone. Just between me and my wife,… ." and he was “truly sorry for what happened”. Ms. Cook asked the grievor if he had ever implied to other people that he was an Investigation Officer and, according to the notes of the meeting, the grievor replied, “all he tells people is that he is a government worker” and “he would never tell people that he is a fraud investigator”. 

54 The notes of the October 28, 2008 interview between the grievor and Ms. Cook ("Bernice") included the following:

…

Bernice began by asking Mr. Shaver if he acknowledged accessing computer programs from work to look up information on [BB]. Mr. Shaver acknowledged that he had.

Bernice asked Mr. Shaver if he acknowledged accessing computer programs from work to look up information on Todd Decker. Mr. Shaver acknowledged that he had.

Bernice asked if Mr. Shaver understood that by looking up personal information on an individual outside of his work that he was infringing on their privacy. Shaver stated that he understands that now. Bernice asked if he was aware of this at the time that he looked up the information. Mr. Shaver indicated that he did not think about privacy at that time.

Bernice asked Mr. Shaver if he understood that releasing personal information on a claimant to his wife was infringing on that persons privacy. Mr. Shaver responded that he understands that now. Bernice asked Mr. Shaver if he understood this at the time he released the information. Mr. Shaver responded that he was under stress at the time and did not think of it. He states that he was worried about his wife and the type of people she had to deal with on the Co-op council. His main interest was protecting his wife.

Mr. Shaver added that at no time did he look up any information on [AA] and there was no evidence that he had done so.

Mr. Shaver further added that he looked up the information on [BB] because of a tip from Todd Decker that [BB] was collecting EI and working under the table. Mr. Shaver said that Todd had told him before about this and when he mentioned it a second time he felt obligated to look up the information.

55 I pause to note that, during this interview, the grievor admitted he looked at the names of BB and Mr. Decker. He denied that he looked up AA's name, presumably in response to the Ms. Heon's finding that he had done so. He also admitted he looked up information to assist his friends. 

56 Ms. Cook met with the grievor a second time, on November 24, 2008. I reproduce a lengthy excerpt from the notes of that interview: 

Ms. Cook advised Mr. Shaver that in his last interview he indicated that he had looked up Todd Decker on our systems as he was fearful of Todd and fearful for his wife. Ms. Cook asked Mr. Shaver when he began to become fearful of Todd.  Mr. Shaver advised that it was after the letter was sent to the residents of the co-op.

Ms. Cook asked if he had a copy of this letter. Kathy Sands advised that she had a copy. Ms. Cook asked when this letter had been sent out. Mr. Shaver advised that it was sometime in January or February of 2008.

Ms. Cook asked Mr. Shaver what he was concerned that Todd might do.

Mr. Shaver advised that he saw Todd’s whole personality change. He was a nice guy and he turned to a very angry, vindictive person and he was stressed out. He (Todd) started to send emails to Mr. Shaver.

Ms. Cook asked Mr. Shaver if he feared for his physical safety.

Mr. Shaver advised that he did not fear for his physical safety, however, he feared that Todd would become vindictive such as slashing tires amongst other things.

Ms. Cook asked Mr. Shaver what precautions he and his wife took.

Mr. Shaver advised that he told his wife that he did not want that man in his home anymore. However, his wife felt obligated to keep up the relationship with both herself and Todd being on the strata council. She would invite him into their house to discuss business and Mr. Shaver would go lock himself in a small office in their home.

Ms. Cook asked Mr. Shaver if he was fearful for his wife, why would he lock himself in an office when Todd was in their home.

Mr. Shaver advised that he could hear everything they were discussing from the office even with the door closed. Mr. Shaver also added that he didn’t think that Todd would do anything with Mr. Shaver close by.

Mr. Shaver also added that there were times Todd would show up to their door and would be in such close proximity to his wife that his wife would feel bullied into letting Todd into their home. He once barged through their door uninvited and called her names.

Ms. Cook asked Mr. Shaver when he indicated that he looked up information on Todd to find out what kind of character he was, what type of information did he hope to learn about Todd’s character on our systems?

Mr. Shaver said he didn’t know what he would find out; he just wanted to get an idea of his character.

Ms. Cook asked Mr. Shaver how he planned to use the information he found on Todd.

Mr. Shaver advised that if he was there was a history of problems like was he [sic] nurse before and now he was a nurse’s assistant, was there something about him being a problem, then he and his wife could get out of there. Mr. Shaver said that he was scared for his wife and the police would do nothing.

Ms. Cook asked Mr. Shaver if he was concerned with the information that he found in our system on Todd Decker.

Mr. Shaver said no.

Ms. Cook asked why he would share information that was irrelevant to his fear with his wife by sharing information about [BB].

Mr. Shaver said he didn’t mention names to his wife, he just told his wife that there was no overpayment and that he was not on EI. Mr. Shaver states that he was just venting his stress with his wife. He states that he often shares incidents that occur at work with his wife when he’s had a bad day.  For example, if he had a client yell at him because they were disentitled he might tell his wife that he had a bad day and that a client yelled at him. Nothing more.

Ms. Cook asked Mr. Shaver if he has shared any other information regarding clients with his wife.

Mr. Shaver said no.

Ms. Cook asked Mr. Shaver if he was fearful of [BB].

Mr. Shaver said no.

Ms. Cook asked why he would look up information on [BB].

Mr. Shaver said it was because of information provided by Todd that [BB] was working and collecting EI.

Ms. Cook asked Mr. Shaver if he was fearful of [JJ].

Mr. Shaver advised that he was concerned about him and how he behaved towards his wife. He advised that his wife had recorded one of their strata meetings and [JJ] became very aggressive towards his wife and kept asking her to turn off the tape. His wife said she would not turn it off because she was afraid. Mr. Shaver advised Ms. Cook that he [the grievor] sent her [Ms. Cook] a copy of the tape.

…

Ms. Cook asked Mr. Shaver if he was fearful of [KK].

Mr. Shaver advised he hardly knows her.

Ms. Cook asked why he would look up information on her.

Mr. Shaver advised that he probably wanted to know what kind of person was working with his wife on the strata.

Ms. Cook asked Mr. Shaver if [KK] was on the strata council.

Mr. Shaver replied that at that time he believes [KK] was on the strata council.

Ms. Cook asked Mr. Shaver if he was fearful of [LL].

Mr. Shaver responded that he was [occupation deleted] and that he had a [deleted] problem.

Ms. Cook asked Mr. Shaver why he would look up information on [LL].

Mr. Shaver stated that he wanted a better understanding of this guy because he lives directly below them. He states that shortly after moving into their complex they were doing renovations and discovered soot under their cupboards.  When they asked someone about this they were advised that [LL] had been the target of a fire bomb prior to Mr. Shaver moving in because of an unpaid gambling debt. Mr. Shaver advised he was scared for his wife’s safety.

Ms. Cook asked Mr. Shaver if he was fearful of [AA].

Mr. Shaver responded that he didn’t know except that [AA] lives with Todd Decker.

Ms. Cook asked Mr. Shaver why he looked up information on [AA].

Mr. Shaver advised it was because of his relationship with Todd.

…

Ms. Cook advised Mr. Shaver that in our last interview he had indicated that he looked up information on his friends to assist them as they were usually enquiring as to the status of their claim and he helped them get into programs. Ms. Cook asked Mr. Shaver what type of information he would provide his friends in respect to the status of their claims.

Mr. Shaver advised he would usually tell them how many weeks were left on their claims. He did not help them get into programs; he told them about the different programs that were available to them and what steps they could take to access those programs.

Ms. Cook asked Mr. Shaver if he provided this service during business hours or on his own time.

Mr. Shaver advised that he would do it on company time as he did not have access to the computer programs at home.

Ms. Cook asked Mr. Shaver why he would not refer these clients to the EIT.

Mr. Shaver said that sometimes he did, but he felt that he had the information available and he was just trying to help them get back to work.

Ms. Cook advised Mr. Shaver that the EN04 provides the name, address, SIN, date of birth and information on whether a person has an EI claim, but no further data.  Ms. Cook asked Mr. Shaver why he would look up this screen on people he knew.

Mr. Shaver advised that he looked on this screen to determine their SIN’s.

…

Ms. Cooke advised Mr. Shaver that in September 2005 Mr. Shaver took the Service Canada Orientation Overview training. The prerequisite of this course was that he had to complete 2 online modules – “Paving the Way: Values and Ethics Foundations for New Employees” and “Orientation to the Public Service Program: Who We Work For”. This was followed by a one day classroom training to apply the knowledge gained through the online modules.

Mr. Shaver asked if Ms. Cook could elaborate on this.

Ms. Cook advises that the course would have taken place either in the Vancouver Office or at Harbour Centre.

Mr. Shaver advises that he does not recall taking this course.

Ms. Cook advised Mr. Shaver that in January 2007 he attended IT Awareness training that included:

• Unacceptable Conduct: Using the government’s electronic networks for private business or personal gain …

• Objectives:  To be able to identify tips to ensure the     confidentiality, integrity and availability of IT systems     and data.

• Security is defined as measures and controls that ensure confidentiality, integrity and availability of information.

Mr. Shaver advises that he vaguely recalls attending this training.

Ms. Cook went on to discuss additional topics in this training:

• You must learn how to take precautions to protect the data you have at your disposal.

• Guarding access to information.

Ms. Cook asked Mr. Shaver if he recalled this training.

Mr. Shaver advises that he vaguely recalls taking this training.

…

Ms. Cook then asked Mr. Shaver if he recalls a complaint from a client that was sent to the Office of Client Satisfaction in September 2007. In this complaint Mr. Shaver had identified himself as an investigator, furthermore, he had humiliated and intimidated participants in this session. The client further stated that he had achieved the goal of inspiring fear in the participants. The client voiced concern of having their name revealed for fear their claim would be affected negatively. As a result of this complaint your Team Leader had to provide you with feedback on the tone of your session and attend one of your sessions to provide you further feedback.

Mr. Shaver advised that he recalls this incident and that Lynne Webb (his Team Leader at the time) did attend one of his sessions.

Ms. Sands asked if Mr. Shaver was disciplined for this incident.

Ms. Cook advised that she believes he was given a verbal warning.

Ms. Sands advised that if there was no investigation that this complaint should not be considered. She then asked if she can have a vetted copy of this complaint.

Ms. Cook advised that she will have to enquire as to whether we can release this or not.

Ms. Sands advise that if Mr. Shaver is not given a copy then this complaint then it should not be a part of this investigation.

…

Mr. Shaver stated that he made a small error, he told his wife. Now he feels that he is being treated wrong. The investigation has taken a long time and he fears he will be homeless out in the cold. He states he has no money as he has been denied benefits and he is just being screwed.

Ms. Cook advised again that she cannot comment on the delay, however she will try to have this resolved by the end of this week so that he can move on with his life.

…

Mr. Shaver advised that training is poor at best. Nobody ever sat him down and told him not to do this.

Ms. Cook advised that based on the information gathered she will make a decision and advise him of the outcome.

Mr. Shaver stated that the training provided to staff is boring and they don’t tell you things you need to know. Training in the office is very poor. The only training he recalls taking is the training in Chilliwack and the Interview Officer training.  He advises that the speakers are often monotone and it is difficult to listen to them.

Ms. Cook advised she would not comment on the quality of the training. She advised that she will attempt to render a decision this week.

[Sic throughout]

57 By way of a summary of the two interviews with Ms. Cook in October and November 2008, I note that during the November 24, 2008 interview the grievor admitted to accessing the name of BB, as well as obtaining personal information about him. He also agreed to looking at the names of JJ, LL and KK. With respect to Mr. Decker, on November 24, 2008, Ms. Cook pointed out to the grievor that in the previous interview of October 24, 2008, he said he looked up Mr. Decker's name and Ms. Cook asked the grievor about the fear he had for Mr. Decker. The grievor explained this. He was also asked about whether he was fearful of AA and he answered that he (the grievor) "… didn't exactly know except that [AA] lives with Todd Decker."  As recorded above, the next question to the grievor was "why he looked up information on [AA]" and the notes record his answer as, "Mr. Shaver advised it was because of his relationship with Todd". 

58 On November 25, 2008, Ms. Cook completed a Disciplinary Report Form following her interviews of the grievor and after discussing his situation with labour relations advisors. The significant parts of what she entered on that form are as follows:

Nature and Details of Infraction:

A complaint was received that Mr. Shaver had obtained personal client information on several individuals in his housing co-op using government computers and that he used this information for his personal agenda.

Summary and Date of Employee Interview

Mr. Shaver acknowledges that he had searched government computers and had obtained personal information on several individuals who reside in his housing co-op.

Mr. Shaver also acknowledges that he shared personal information on [BB] with his wife, who then shared the information with other individuals who reside in the co-op.

Mr. Shaver advises that he took this action as a result of his fear for his wife’s safety. Mr. Shaver’s wife worked as a council member in the co-op. Mr. Shaver has indicated that he did not fear for his or his wife’s physical safety, he feared vindictiveness of the complainant (e.g. possibly slashing tires).

Mr. Shaver acknowledges that some of the individuals he looked up was for the purpose of determining what kind of person they were. [sic].

Evidence From Other Sources

Statements from [BB]’s wife who was approached by the complainant with the information obtained from Mr. Shaver.

Statement from the complainant Todd Decker who provided details of information obtained from Mr. Shaver on himself, [BB] and [AA].

Statement from [AA] who provided details of information obtained from Mr. Shaver on Todd Decker, [BB] and himself.

Statements from Mr. Shaver to Wendy Heon, Senior Investigator SIU and Bernice Cook, SDM Integrity Operations Metro Vancouver.

Reports from IT demonstrating access to OLIS and FTS.

Supervisor’s Analysis and Comments

The finding [sic] of the administrative investigation indicate that Mr. Shaver accessed client files without justifiable authorization for his own benefit. Mr. Shaver disclosed client information to third parties ... and in doing so, committed a breach of trust.

Mr. Shaver admits during the disciplinary hearings that he did indeed access personal client information for his own personal agenda. He further admits that he disclosed personal client information to a third party.

Mr. Shaver’s arguments that he took the above actions in fear for his wife does not justify violating the rules around the protection of client information. His argument that he was not aware of departmental policy on the protection and release of personal client information is not credible in the face of evidence establishing that he received training on this topic.  Given the serious nature of these multiple infractions Mr. Shaver has betrayed the trust of the public and the organization. It is considered that Mr. Shaver can not [sic] be trusted to perform his duties as an Integrity Services Officer.

59 In the same report, Ms. Cook recommended discharge of the grievor from his employment.

60 In her evidence, Ms. Cook emphasized that during her interviews with the grievor, he refuted the allegation in Ms. Heon's report that he had searched and accessed information about AA. Other than that, he did not question the contents of Ms. Heon's August 2008 report, although he was concerned with the amount of time the investigation was taking.  Ms. Cook also noted in her evidence that she asked the grievor why he looked up information on AA and his reply was, “because of his relationship with Todd”, according to the notes. In her evidence Ms. Cook said this meant that the grievor "did not deny" that he looked up AA's name.

61 The reports described above next went to Mr. Netzel to consider Ms. Cook's recommendation to dismiss the grievor. Mr. Netzel testified that he had the ultimate authority to decide this issue. He had before him for consideration a number of documents including the August 2008 Investigation Report, as well as the November 25, 2008 Disciplinary Report Form from Ms. Cook. He also had available to him advice from various labour relations people. In cross-examination, Mr. Netzel confirmed that he did not have direct information as to the information obtained and disclosed by the grievor. In this regard, he relied on the reports presented to him by his staff. He agreed that the information before him was that the grievor had looked up information about AA. He also agreed that he did not speak to the grievor as part of his decision-making process.

62 With regards to mitigating factors in the grievor's favour, Mr. Netzel testified that if the grievor’s actions had been a brief aberration that would have been a factor, but the grievor's actions had been repetitive. If the situation had been one where he had obtained a financial benefit, that would have made things worse.  There was no financial benefit in this case, but the grievor was using information from the respondent's databases for personal use. The grievor’s eighteen years of service was a factor in his favour as was his apology. Mr. Netzel denied that termination was the automatic result in every case of unauthorized access to information and he testified that each case would have to be considered on its own merits. He denied the respondent’s position was zero tolerance with regards to access to information and there were “probably cases where an employee would not be terminated” if he or she accessed information inappropriately. Overall, Mr. Netzel's view was that there were no factors that could mitigate the seriousness of the grievor's actions.

63 Mr. Netzel concluded that dismissal was the appropriate response in this case and this was set out in a letter dated November 26, 2008 to the grievor:

I am writing to advise you of my decision in relation to the disciplinary investigation conducted into allegations that you accessed client information for your own personal use without justifiable authorization on multiple occasions.

The disciplinary investigation found that you accessed client files for your own benefit on numerous occasions. You failed to adhere to the Values and Ethics Code as well as the Memorandum of Understanding you signed when you were first employed by the department. Behaviour of this nature is unacceptable and will not be tolerated.

I have reviewed and considered all of the information pertinent to this case. Your actions and your breach of the integrity of the Integrity and Employment Insurance systems have caused irreparable damage to the trust relationship essential for your continued employment. Accordingly, under the authority delegated to me by the Deputy Minister, your employment with Human Resources and Skills Development Canada (Service Canada) is being terminated for cause in accordance with section 12(1)(c) of the Financial Administration Act, effective September 30, 2008.

Should you disagree with my decision, you are entitled to present a grievance within twenty-five (25) days following receipt of this letter.

64 The grievor filed a grievance dated December 19, 2008, about the termination of his employment. The corrective action requested was, "[t]hat I resume my substantive position immediately with full restoration of my status, reimbursement of all lost wages, benefits and pension credits. That all records of this investigation and disciplinary outcome be removed from my personal file". This grievance is one of the three grievances that are the subject of this adjudication.

65 As can be seen above, in her report of August 13, 2008, Ms. Heon stated that the grievor's reliability status would be reviewed as a result of her findings. As discussed previously, in order for the grievor to perform his duties, he was required to have a security clearance called "reliability status". This is the minimum level of security required by employees working for the respondent.

66 Mr. Macdonald, the DSO, became directly involved in the review of the grievor's reliability status when Ms. Heon's report of August 13, 2008 required his approval. This caused Mr. Macdonald to review the report and he testified that he concluded that a review of the grievor's security clearance was necessary. This was because he had accessed personal information and had shared it with others and this appeared to be contrary to the respondent's policy on security (discussed above). The grievor challenges whether Mr. Macdonald had delegated authority to undertake this review and then revoke the grievor's reliability status.

67 Ultimately, following Mr. Macdonald's direction to undertake a review, an addendum to the August 13, 2008 report was prepared by Claude Jacques, a corporate security officer, and it is dated October 6, 2008. The policies applicable to the grievor were reviewed, as was the Criminal Code R.S.C. 1985, c. C-46.  I reproduce excerpts from the addendum as follows:

…

… Evidence uncovered clearly points to the fact that Shaver provided personal information to Mr. Todd Decker and to his wife, Ms. Nyla Kasakoff about one of the Condominium Complex tenant, [BB].

… the investigation revealed, through an On-Line Insurance System (OLI/SSA) audit report, that Mr. Grant Shaver's Usercode was used to access the following individual's Employment Insurance (EI) information without justification (It should be noted that these individuals lives and/or work for the complex);

1. [BB] … ;

2. [JJ] … ;

3. [KK] … ;

4. [LL] … ;

5. [AA] … ;

On June 5, 2008, Mr. Grant Shaver was interviewed on this issue. Shaver readily admitted that he had accessed client information (friends and neighbours) which was totally unrelated to his duties as an ICO. In regards to accessing his "friends" information, Shaver stated that he did so because he wanted to be able to assist and provide them with advice.  However, Shaver was unable to provide the names of his friends when requested to do so. In relation to "neighbours", Shaver offered no valid explanation for what he had done other than explaining that his wife was on the council and had some concerns on some individuals. To assist her, Shaver accessed their information to find out what "they were dealing with."

…

It is clearly evident that Mr. Shaver abused the confidence and trust bestowed upon him as an Investigations and Controls Officer. Mr. Shaver has clearly demonstrated that he cannot be trusted with the administration of any Government program and that I have no choice but to conclude, based on evidence uncovered during the course of this investigation and the balance of probabilities, that there was wrong doing committed on the part of the employee, and that it is significant enough to sever the bond of trust that exists between the employee and the employer. Furthermore, her conduct is incompatible with the Values and Ethics Code for the Public Service.

In light of the breach of trust committed, I recommend that Grant Shaver's Reliability Status be revoked.

[Sic throughout] [Emphasis in original]

68  Mr. Macdonald accepted this recommendation and, in a letter dated December 15, 2008, he advised Mr. Netzel that the grievor's reliability status had been revoked. I reproduce that letter as follows:

The following is to advise you that the Reliability Status for Grant Shaver, DOB: [date deleted], Investigation and Control Officer, Vancouver Service Canada Centre, has been revoked effective today’s date.

My decision to revoke M. Shaver’s Reliability Status is based on the investigation reports into Shaver’s unauthorized access and disclosure of client’s information to third parties.  The report, dated August 13^th, 2008, clearly indicates that M. Shaver’s conduct, actions and his total disregard for the Value and Ethics Code for public service employees under Treasury Board Secretariat pose a serious risk to the Department.

My authority to revoke his Reliability Status is delegated to me as Departmental Security Officer, Human Resources and Skills Development Canada/Service Canada and the Government Security Policy. Should M. Shaver disagree with my decision, he may contest it through the formal grievance procedures under the Deputy Minister of the Department.

Would you please take the necessary action to advise the individual, in writing, of my decision and forward a copy of the letter to my attention for our record.

Should you have any questions, please do not hesitate to contact me at [telephone number deleted].

69 The grievor was advised of this decision in a letter dated December 22, 2008.

70 The respondent submits that the decision to revoke the grievor's reliability status was an administrative matter and, therefore, an adjudicator has no jurisdiction to consider the grievor's challenge to that decision. On the other hand, the grievor and the bargaining agent submit that an adjudicator does have jurisdiction over this decision or, alternatively, has jurisdiction over the procedural fairness of the decision (Gill v. Treasury Board (Department of Human Resources and Skills Development), 2009 PSLRB 19, at para 170).

71 The grievor filed a grievance dated June 8, 2009, with regards to the revocation of his reliability status. On September 8, 2009, the respondent denied this grievance.  This grievance is one of three grievances that are the subject of this adjudication.

72 In his evidence in this adjudication, the grievor stated that he has learned his lesson from his mistakes.  As well, he enjoyed his work very much, he was good at his job and he was confident he could return to work with the respondent with minimal difficulties.  He has attempted to find alternative work since his dismissal but he has not been successful.  He has applied at various public sector employers, he has had five interviews but no offers of employment. Since his dismissal, he has been assisting his wife in her small business and they both work out of their home. The grievor seeks the following remedies through his grievances: salary for two-and-one-half years at $48,000.00 per year; reimbursement for the value of the home he and his wife had to leave in order to escape Mr. Decker; reimbursement for medical expenses for his wife because of loss of benefits; reimbursement of $15,000 to pay off a line of credit the grievor had to take out; reimbursement for loss of potential income as a result of not being able to work from stress related to his dismissal; reimbursement for the cost of another mortgage they have had to take out. The grievor closed his evidence on this issue by saying "That's all I can think of now" and I take from this that he wishes to leave open the opportunity to add to this list.

73 It was agreed at the hearing that I would make decisions on the grievor's suspension, dismissal and revocation of reliability status. In the event he is reinstated, the issue of remedy would be referred to the parties and I would retain jurisdiction over that issue.

VI. Reasons

74 There are three broad issues in this adjudication. There is the suspension of the grievor, the termination of his employment and the revocation of his reliability security status.

75 I will deal with each of these issues in turn.

A. Suspension

76   With regards to the suspension of the grievor, there is a threshold issue as to whether I have jurisdiction to decide this issue. The respondent says this was an administrative suspension and, therefore, I do not have jurisdiction; the grievor and the bargaining agent say the suspension was a disciplinary one and, therefore, I do have jurisdiction. If I do have jurisdiction over the suspension, there would then be the issue of whether the respondent had just cause to suspend the grievor.

77 With regards to the issue of jurisdiction, I note that whether a suspension is administrative or disciplinary is a factual issue (Basra v. Canada (Attorney General), 2010 FCA 24).  In this regard the letter of September 29, 2008, which advised the grievor he was suspended, stated that it was done "in accordance with Section 12(1) of the Financial Administration Act … "  That provision states:

Powers of deputy heads in core public administration

12 (1) Subject to paragraphs 11.1(1)(f) and (g), every deputy head in the core public administration may, with respect to the portion for which he or she is deputy head,…

…

 (c) establish standards of discipline and set penalties, including termination of employment, suspension, demotion to a position at a lower maximum rate of pay and financial penalties;

78 It is agreed that this provision is a reference to a disciplinary suspension.  However, the position of the respondent is that the reference to section 12(1)(c) in the September 28, 2008 letter was an error. The evidence is that there was a correction to the letter but it was made for the first time in this adjudication through the respondent's evidence. As well, I was not directed to another section of the FAA that specifies the respondent's authority to impose an administrative suspension.

79 In my view, the letter of suspension of September 29, 2008 should be interpreted as it was written. I find that there was a disciplinary component to the suspension because that is what the letter says by means of the reference to section 12(1)c) of the FAA. The respondent had almost three years to formally correct the reference they claim was incorrect and they did not do so. 

80 However, I also find that this issue is moot because the termination of the grievor's employment was made retroactive to the first day of the suspension (Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62, at para 154). In the event there is no just cause for any discipline against the grievor, he would be entitled to be made whole for the period from September 29, 2008 to the date of his reinstatement (unless there were grounds for the suspension).

B. Dismissal

81 As above, according to the respondent, there is just cause for the dismissal of the grievor because he used databases at work to access names of individuals for personal reasons and he then obtained and disclosed information about one person to one or more third parties.

82 In his evidence in this adjudication, the grievor admitted that he looked up the names of individuals he had no authority to look up. He specifically admits to looking up the names of BB, JJ, KK, LL and MM. He also admits that he looked at a screen for BB that contained personal information such as his social insurance number. That coincides with the results of the investigation conducted by Mr. Touchette and I discuss this further below. The grievor specifically denies in his evidence that he looked up the names of Mr. Decker and AA. He admits that he disclosed the information about BB but only to his wife.

83 Unfortunately, the evidence is not as straightforward as simply looking at the grievor's admissions in his testimony. This is because his admissions in this adjudication are not consistent with his previous admissions during the respondent's investigation.  Therefore, deciding what names the grievor actually looked up requires a careful review of the evidence, including the evidence of the respondent's investigation.

84 There is the question whether the grievor looked up AA's name. In her report of August 13, 2008, Ms. Heon stated that the grievor "… admitted to accessing information on [AA] … . "  My review of the transcript of the grievor's interview with Ms. Heon indicates that the grievor was asked if he looked up AA's name and he answered, "I don't believe I did". It might be said that there is some qualification on the grievor's part with this answer but, in the absence of any other evidence, I am unable to find this answer amounts to an admission by the grievor to Ms. Heon on this point.  Looking at the first interview with Ms. Cook, the grievor had either seen Ms. Heon's report or knew about it and he specifically denied looking up AA's name. Then, during the second interview with Ms. Cook, she asked him a question that assumed he looked up AA's name and "he did not deny" it, as Ms. Cook put it in her evidence. I am unable to find this was a conclusive admission from the grievor. Finally, Mr. Touchette did not find that the grievor looked up AA's name. Considering all of this evidence, on a balance of probabilities, I find that the evidence does not support a finding that the grievor looked up AA's name. Of course this finding does not necessarily contradict Mr. Decker's allegation that the grievor said he looked up the name of AA. In this case, and below, the social context for various exchanges between the grievor, his wife and Mr. Decker, where alcohol was consumed, has to be considered when looking at these exchanges. 

85 There is then the question as to whether the grievor looked up Mr. Decker's name. This question arises because the grievor said on three occasions during the respondent's investigation (in the interviews with Ms. Heon on June 5, 2008, and with Ms. Cook on October 28, 2008, and November 26, 2008) that he did look up Mr. Decker's name. Ms. Cook asked the grievor why he did this and the notes of that meeting record that the grievor answered by saying he "… didn’t know what he would find out; he just wanted to get an idea of his character." On the basis of these admissions, the respondent quite reasonably concluded that the grievor did in fact look for Mr. Decker's name. I pause to note that conclusion is not binding on me. There is also reason to conclude that the grievor had a motive to look up Mr. Decker's name because he was the person with the most contentious relationship with the grievor and his wife. Specifically, the grievor said he looked at other names in order to protect himself and his wife and, as discussed above and below, he also said he was afraid of Mr. Decker. Therefore, if he went to the trouble of looking up the other names in the strata council, it is logical that he would also look up Mr. Decker's name. I also note that the grievor looked up the names of his neighbours in March 2008. That is when his relationship with Mr. Decker was very hostile. At that time, the motivation to look up Mr. Decker's name would have been heightened and, therefore, there was more reason to look up Mr. Decker's name then.

86 Contradicting the grievor's admissions during the respondent's investigation that he looked up Mr. Decker's name is his evidence in this adjudication when he denied he looked at Mr. Decker's name. Apart from the stark difference between these two accounts, this contradiction is also troubling because the grievor did not explain in his evidence why there is this conflict between what he said in his evidence and what he said during the respondent's investigation. Why the grievor admitted during the respondent's investigation to something he did not do --- looking up Mr. Decker's name --- is an obvious question but the grievor has not provided a reliable answer and neither does the evidence provide one. He did testify, in another context, that he was in a "fog" at the time because of the stress of everything, but that does not adequately explain such a significant contradiction. This is an unexplained and significant contradiction on the grievor's part and it brings into question the reliability of his version of events when it differs from the version of the respondent and its witnesses.   

87 In summary, the evidence about whether the grievor looked up Mr. Decker's name includes his admissions on three occasions that he did so. He also had, from his point of view, a good reason to look up Mr. Decker's name because of the hostility between the two men. On the other hand, the grievor in his evidence in this adjudication denies he looked up Mr. Decker's name. Further, this denial is corroborated by the technical review conducted by Mr. Touchette who testified in clear terms that he did not find that the grievor looked up Mr. Decker's name. Finally, the grievor did not explain why there is this contradiction between what he admitted to the respondent and what he said in his evidence.

88 Overall, I conclude that the investigation of Mr. Touchette is the preferred approach to this question. It is the one that focuses on relatively objective information that does not rely on the memories or interests of individuals and in his evidence Mr. Touchette was confident that his investigation was thorough and complete. On this basis I find, as did Mr. Touchette, that the evidence does not support a conclusion that the grievor accessed Mr. Decker's name. I have also found above that he did not access the name of AA. I also rely on Mr. Touchette's conclusions that the grievor accessed the names of BB, JJ, LL, KK and MM.

89 There is another concern that relates to the grievor's evidence when considered in the light of what he said during the respondent's investigation. When he was interviewed by Ms. Heon in June 2008, the grievor was asked if he looked up specific names (although he was not asked about all the names from the original list put together by Ms. Morrison, including JJ and MM). When he was asked directly about looking up the names of Mr. Decker, BB, and LL, he agreed he had looked up their names. He was also asked specifically about KK, but he denied looking up that name and three others from the original list. In fact, the grievor did look up the name of KK, as found by Mr. Touchette, and as subsequently admitted by the grievor in his evidence. As well, on two occasions in the interview with Ms. Heon, the grievor denied looking up any other names. Considered in the light of the grievor's subsequent evidence in this adjudication and Mr. Touchette's report, this also was not true. Then, in his first interview with Ms. Cook in October 2008 the grievor admitted only to looking at BB's name (and personal information) and the name of Mr. Decker.

90 Looking more carefully at these events, the timing of the grievor's admissions during his evidence is of concern (leaving side the admissions then denial by the grievor of looking up Mr. Decker's name, discussed above). He had the opportunity and the obligation to make a complete and unqualified statement of his misconduct as early as June 5, 2008, and then on two occasions after that. He did not do so. But in his evidence in this adjudication, the grievor volunteered he looked at the five names that Mr. Touchette had discovered. For example, with regards to MM, the grievor did not admit to looking at this name until he gave his evidence in this adjudication. He knew, or should have known, the seriousness of the situation in June or October or November 2008 and he had an obligation to make a complete admission of his misconduct, especially when he was asked more than once whether there was anything else. He did not. What appears to have happened is that he admitted only what he could not deny at the time. Then, if the respondent found out more information, he admitted that as well. Finally, when he gave his evidence, he had the opportunity to know the results of all of the respondent's investigations. His evidence coincided with those results, in particular Mr. Touchette's investigation of the grievor's user name.  Significantly, the grievor made his last admissions after the respondent had disclosed its documents and had presented its case. 

91 In my view, the inconsistencies in the grievor's admissions go beyond a problem of memory or inadvertent mistakes. Instead, the grievor has taken a tactical approach to his admissions, changing them as needed, but always with a mind to minimizing them. The consequence of this is that it significantly weakens the sincerity of the grievor's testimony and it negatively impacts on his trustworthiness.

92 There is then the issue of the grievor's disclosure of the information he obtained about BB. The grievor has been consistent throughout his evidence that he disclosed this to his wife and to no one else. On the other hand, in Ms. Heon's report of August 13, 2008, she found "on a balance of probabilities" that the grievor also told Mr. Decker and AA. In her Disciplinary Report Form of November 25, 2008, Ms. Cook found that the grievor "… disclosed client information to third parties."  The reference to "parties" indicates that Ms. Cook concluded that the grievor disclosed the information to at least one other person besides his wife.

93 This brings me to the evidence of Mr. Decker. His early exchanges with the grievor took place in a social setting where alcohol was consumed and the later exchanges between the two took place after the relationship turned hostile. I am urged by the grievor and the bargaining agent to reject Mr. Decker's evidence in total because it was given during the hostile phase of the relationship. The thrust of this submission is that Mr. Decker was and is motivated by a personal vendetta against the grievor and his wife; his evidence is based on that motivation rather than any intention of telling the truth. As a general proposition, I reject that approach; I am entitled to adopt some, all or none of Mr. Decker's evidence depending on the application of the usual criteria for assessing and weighing evidence (see, for example, Faryna v. Chorney (1952), 2 D.L.R. 354 (B.C.C.A.)).

94 An aspect of the grievor's evidence as it relates to Mr. Decker is that he urges me to find that he was justified in being afraid of Mr. Decker. As I understand it, the point is that the grievor was the victim, Mr. Decker was the aggressor and Mr. Decker did not tell the truth when he spoke to the respondent and when he gave his evidence.  Put another way, Mr. Decker has been dishonest in order to aggressively continue his vendetta against the grievor (and his wife) and get the grievor into trouble, ultimately causing him to lose his job. I should not believe Mr. Decker for this reason. I can agree that Mr. Decker made some offensive remarks during the material times and he acknowledged as much in his evidence.

95 However, the evidence is also that the grievor and his wife were at least as aggressive towards Mr. Decker. The emails cited above are evidence of this. For example, the grievor wrote the March 27, 2008 email to Mr. Decker to say, "Todd you are dumb as a doorknob!!!  I look forward to chatting with you in person one day soon, I would like to know if you are going to talk to me like you did to Nyla.  You made a very poor mistake dude!!!!!! Love Grant". In my view this message can only be interpreted as a moderate threat by the grievor against Mr. Decker, albeit sheltered from any direct contact by the medium of emails.   

96 A related matter is that, in his evidence and during the various interviews of the respondent's investigation, the grievor explained that he searched names of people in the strata complex and that he accessed and disclosed unauthorized information in order to protect his wife. For example, the notes of the October 28, 2008 interview with Ms. Cook record the grievor saying by way of explanation for his actions, "Mr. Shaver responded that he was under stress at the time and did not think about it. He states that he was worried about his wife and the type of people she had to deal with on the co-op council. His main interest was protecting his wife."  As above, I do not accept that Mr. Decker represented that kind of threat. There is still more difficulty in understanding the security issue with LL since the evidence indicates that he had minimal involvement in the conflict within the strata council. Similarly, there is no evidence that MM, KK or JJ posed any threat at all to the grievor and his wife. Their involvement was limited to being perceived by the grievor, his wife and Mr. Decker as being involved in the wrong side of the dispute within the strata council. Finally, even if there was a security issue involving anyone, it was a breach of the grievor's oath of office and respondent's policy for him to access information for any purpose other than one that arose from his work duties. 

97 Overall, I find that the relationship between the grievor and Mr. Decker was not one-sided in the sense that Mr. Decker was the aggressor, although he undoubtedly contributed to the hostility between the two protagonists. The grievor and his wife also made a significant contribution. It was certainly not the case that the grievor was being victimized by Mr. Decker. 

98 Turning to the details of Mr. Decker's evidence, the compelling feature of that evidence is that much of what he said under oath and what he said during the respondent's investigation turned out to be true. Mr. Decker was correct that, while at work, the grievor looked up the names of people in the strata council. The list of people he gave to the respondent was longer than the one that was eventually confirmed, but it is usual in an investigation to start with a long list and end up with a shorter one. Mr. Decker was also correct about the information the grievor obtained about BB, in particular the information about the overpayment. More compelling yet, the grievor ultimately admitted much of what Mr. Decker told the respondent and said in evidence. Whether the grievor boasted that he was the "master of revenge", as alleged by Mr. Decker, is consistent with the character of their relationship, particularly since it arose when it was a social relationship, but it is otherwise difficult to prove. The grievor's reference to BB's astrological sign was easy enough to garner from the birth date information on the EN04 screen that the grievor looked at. There was undoubtedly some embellishment on the grievor's part during these exchanges of his abilities so that, for example, he told AA he looked up his name and he was "fine", when he probably had not looked up AA's name. The important point is that the core of Mr. Decker's  allegations turned out to be correct. 

99 There is the allegation by Mr. Decker that the grievor held himself out as a "Fraud Investigating Officer" in their conversations. The grievor strenuously denies this and he testified that he always represented himself as being what he was, an integrity officer, to use his term. I am not sure that it is a serious employment offence for an employee to exaggerate his employment duties in a social setting away from work.  In any case, the respondent does not rely on this as a ground for the termination of the grievor. The incident does provide, however, another means to assess the relative credibility of the grievor and Mr. Decker. 

100 As it turns out, there was a similar incident prior to the events giving rise to the grievances in this case. In September 2007, there was a complaint by a client that the grievor had been aggressive and that he humiliated the client. The complaint included an allegation that the grievor held himself out as a "fraud investigator" or "investigating officer". A team leader spoke to the grievor about this. The grievor agreed in his evidence this event occurred and he did not dispute the allegation from the client that the grievor misstated his position to the client. I conclude below that the grievor was not disciplined for this incident. But it does corroborate the evidence of Mr. Decker inasmuch as it is an example of another time when the grievor misstated his position at work. I find that the grievor identified himself as a "fraud investigator" or "investigator" in his conversations with Mr. Decker, as he had done on the previous occasion in 2007.  This is another reason to prefer the evidence of Mr. Decker over that of the grievor.

101 The specific point that is very much in contention between the grievor and Mr. Decker is whether the information Mr. Decker learned about BB came directly from the grievor, as Mr. Decker alleges. Alternatively, did Mr. Decker learn it from the grievor's wife, as the grievor and his wife testified? Again, there is no dispute the grievor accessed the information at work and that he shared it with his wife. 

102 Taking the grievor's version of events (that he only told his wife the information about BB), this by itself can only be interpreted as serious misconduct on his part. He disclosed information to his wife that he knew he was not authorized to have and he knew his wife was in a bitter dispute with Mr. Decker.  As well, the grievor, his wife and Mr. Decker believed BB was involved in that dispute (BB did not testify). The grievor did not tell his wife the information was confidential, although that would not have excused the unauthorized disclosure. In fact, it is undisputed that the purpose of obtaining the information in the first place was to advance the position of the grievor, his wife and Mr. Decker in their fight with the strata council. Predictably, and unfortunately, the information was used for just that purpose. 

103 The grievor decided to look up names of individuals using confidential information from work, he decided to look further in the respondent's systems and see confidential information about one person and he decided to share that information with a third party, his wife. All of these events were conscious choices made by the grievor and he had complete control at each stage. This was not inadvertence on his part or the operation of an otherwise unforeseeable result or the result of necessity; it was a deliberate and planned act or series of acts with foreseeable consequences.  Further, I find that the grievor would have accessed other confidential information for the other names he searched except they did not have files in the respondent's system (because they did not have claims for employment insurance benefits).

104 As to whether the grievor told Mr. Decker the confidential information about BB, I note that Mr. Touchette's investigation revealed that the grievor accessed the information about BB on March 4, 2008. This was during the time that the relationship between the grievor and his wife and Mr. Decker had deteriorated to the level of hostility. There were allegations of assault including competing complaints to the police and it understates the case to say they were not talking to each other. In fact, Mr. Decker made his complaint to the respondent about the grievor on March 31, 2008.  I find that it is improbable the grievor would confide in Mr. Decker in these circumstances at this time. It is an event that would have been entirely consistent with their early relationship when they socialized and discussed their concerns about the operation of the strata council. But, according to Mr. Touchette's investigation, the grievor did not obtain the information until much later, in March 2008. 

105 This is an opportune point to address a number of other issues. 

106 There is an issue of whether the grievor had access to a database called Easy Access. The respondent asserts that the grievor had access to this program and he could have used it to access names of people. However, the evidence of the respondent is also that the last time the grievor used Easy Access was in November 2007, well before the events in this adjudication. I find the grievor did not use Easy Access during the times that are material to this adjudication.

107 The grievor did not access personal information about other individuals, but the reason for this is that only BB had a previous employment insurance claim. So, for example, MM did not have a previous claim and, therefore, the grievor could not go to another screen for her and see other information. At different times in the investigation of the grievor, and in his evidence, he suggested that looking up someone's name was not a significant problem. That is, somehow looking up a name of a person who did not have an employment insurance claim is not blameworthy because there was no information behind the name. I reject that view. Simply by attempting to access a person's name in the respondent's computer systems for unauthorized and personal use was a breach of the grievor's oaths of office and of the respondent's policy.

108 In the later stages of the respondent's investigation, and in his evidence, the grievor was critical of the length of time the respondent took with its investigation. It may be recalled that Mr. Decker's complaint to the respondent was in March/April 2008, the grievor was interviewed by Ms. Heon on June 25, 2008, her report is dated August 13, 2008, and the grievor was suspended without pay effective September 30, 2008.  Then there were the two interviews with Ms. Cook in October and November 2008, ultimately leading to the grievor's dismissal for cause on November 26, 2008 (but effective September 30, 2008). This is a period of about eight months, excluding the additional time (November 26, 2008 to December 15, 2008) the respondent took to make a decision to revoke the grievor's reliability status. 

109 I agree with the grievor that there was undue delay in the respondent's investigation. For example, it has not been explained why it took four months between the June 5, 2008 interview with the grievor and the next interview on October 28, 2008.  As is well known, the problem with delay is twofold. First, the respondent is exposed to considerable cost in the event that the grievor is reinstated, perhaps even costs directly related to the delay. Also, at least as important, is the uncertainty for an employee who is waiting for a decision over this length of time. As for what remedy is available to the grievor for the delay in this case, I note that during three months of the investigation, from June 2008 to September 2008, he was at work and being paid while waiting for the respondent to advise him of the next step. He was then suspended without pay from September 29, 2008 until his dismissal on November 26, 2008.  The result is that, unusually, the grievor was being paid for much of the time taken by the delayed investigation. I acknowledge the uncertainty of the situation for him but I am unable to find that the two months when the grievor was suspended without pay requires a remedial response.  

110 In his evidence-in-chief in this adjudication, the grievor commented that he was left in the dark about what was going on, although he also stated that he knew from comments Mr. Decker made to him "that something was coming down". These comments were made in an unpleasant exchange at the apartment complex and they were to the effect that Mr. Decker had made a complaint to the respondent and that there were going to be negative consequences for the grievor. The grievor specifically said in his evidence that he was not given various documents at critical times so he could not know what was going on. For example, he was not given, or did not receive by other means, the letter of suspension dated September 29, 2008. When pressed in cross-examination on this, the grievor acknowledged that he could not remember receiving the document he was concerned about. He also relied on the anxiety he was under at the time and that he was in a "fog" so his memory was not reliable. I find that the grievor received the appropriate information each stage of the respondent's investigation, suspension and termination of employment.  

111 I similarly reject the grievor's suggestion that he somehow did not receive the training listed in the respondent's records, in particular training in ethics. He was careful in his evidence on this point and attempted to avoid an outright denial that he took the training; I find he did take the training. In any event, he was aware through the oaths and affirmations he took when he started his employment of his obligations.  The grievor's testimony was also careful on this point as well because he stated that he could not recollect "everything" about signing those documents. 

112 The grievor went further and asserted that his misconduct may not have been covered by the oath and affirmations he signed. For example, the "Restriction on Employee Involvement in Certain Matters" document cited above includes the statement, "It is not permissible for employees to be directly involved in, or attempt to influence, the … processing, or adjudication of a claim or application … or any other benefit administered by the Commission, on behalf of a relative or friend or in which they have a personal interest or concern, financial or otherwise". According to the grievor, he did not have a "… personal interest or concern, financial or otherwise" in the claims or the names he looked up. Be that as it may, by the grievor's own admission, he assisted his friends over a lengthy period of time by looking at their claims and giving them advice about their claims. 

113 Furthermore, there can be no dispute that the grievor breached the oath he took not to "… without due authority …, disclose or make known any matter that comes to my knowledge by reason of …" his employment. Similarly, he breached the respondent's Values and Ethics Code for the Public Service, cited above.  Specifically, when he assisted his friends with their claims for employment insurance, the grievor violated the requirement in the Code that public servants "… not step out of their official role to assist entities or persons in their dealings with the government where this would result in preferential treatment to the entities or persons". With regards to the conflict the grievor was having with his strata council, he breached the requirement that public servants "… not directly or indirectly use, or allow the use of, government property of any kind, … for anything other than officially approved activities" when he used confidential information from work to pursue this conflict. 

114 I reach the same result with respect to the grievor's complaint that the respondent's process was driven by bad faith with a predetermined result. In my view, a process that involves three lengthy interviews and a separate technical investigation is an extensive one.  There is no serious challenge to the partiality of Ms. Heon or Ms. Cook and the grievor had numerous opportunities to present his side of things. I also find that the respondent does not have a zero-tolerance approach to unauthorized access to information. As Mr. Netzel put it in his evidence, the respondent's approach is to consider each case on its merits and different circumstances require different results.

115 Similarly, I reject the grievor's allegation that the respondent's investigative process was unfair because, for example, Mr. Netzel did not interview the grievor when he made the decision to terminate the grievor's employment. At that point Mr. Netzel had before him all of the investigation reports and the benefit of advice from human resources advisors. It was open to him to meet with the grievor (in fact he had a meeting with the grievor some time before this) but he was also entitled to make a decision based on the information before him. It is true that I have found the information before Mr. Netzel was not accurate in three respects. First, in Ms. Heon's report from August 2008, there is a finding that the grievor looked up Mr. Decker's name. I am confident that finding was made in good faith not least because it was based on the grievor's admission to Ms. Heon that he looked up Mr. Decker's name. The other issues are that Ms. Heon found that the grievor looked up the name of AA and she found that the grievor told Mr. Decker and AA directly about the information regarding BB. As discussed above, I have reached different conclusions on these two points. However, this adjudication is a de novo hearing about whether the respondent had just cause to terminate the grievor (Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.)(QL)). This means I have heard all of the evidence, including evidence about the respondent's investigation and other evidence, and I have made my own decision.

C. Should the grievor be reinstated?

116 Taken together, the evidence is that the grievor's actions constitute serious misconduct. He used his employment to look up names of people in order to advance his personal interests. He accessed personal information about one individual and he shared it with a third party, his wife, knowing that it would be used in a bitter dispute within their apartment complex. Indeed, that was why he obtained the information. I conclude that he would have accessed information about the other individuals that he looked up except they did not have employment insurance claims and there was no information to find. He had been helping his friends with their employment insurance claims for 15 years before the incidents in 2008. As a result, he knowingly breached his oath and affirmation of office and he knowingly violated the respondent's policies. 

117 This is not a case of inadvertence or a situation in which an otherwise blameless action of the grievor led to unforeseeable consequences. His misconduct included "fishing" for the names he wanted.  It was the result of a deliberate plan to search for confidential information from his work for five individuals to further his side of a conflict within his strata council. This was a decidedly personal use of confidential information. In light of the 15 years the grievor had been assisting his friends with their employment claims, as well as the 5 names he looked up in March 2008, his misconduct must be considered repetitive.

118 There can be no doubt that some serious employment consequence is warranted in this case and I have considered this issue with some care. 

119 In mitigation the grievor has 18 years of service. The respondent alleges there was one incident of discipline in September 2007 when a client complained that the grievor had been aggressive, among other things. But that was treated at the time as a non-disciplinary event and I conclude that the respondent cannot now make it disciplinary. The 18 years of service must, therefore, be considered as discipline free.  Also, it is true that the grievor apologized early and more than once.

120 On the other hand, despite his apologies, the grievor has not demonstrated that he accepts full responsibility for his misconduct. I have in mind the following specific difficulties in the grievor's presentation of his case:

(a) The grievor was not forthcoming when given the opportunity to do so by the respondent. For example, he denied looking up one name when he knew his denial was untrue. Similarly, he declined to offer the names of other individuals he looked up when he was given the opportunity to do so.

(b) The grievor participated in the respondent's investigation and his evidence in this adjudication with a tactical approach rather than one of forthrightness. For example, he only admitted things when he could not deny them, with the objective of minimizing the consequences of his actions. 

(c) The grievor also attempted to minimize his conduct by saying he only looked up the names of four of the five people, as opposed to looking for information about those people. In fact, he could not find information about the other people because information was not in the respondent's databases.

(d) The grievor attempted to discredit Mr. Decker's evidence as being motivated solely by a personal vendetta even though much of it was accurate and even admitted by the grievor.

(e) The grievor attempted to avoid responsibility for his actions by testifying that he did not receive training in ethics, that he did not recall signing the oath and affirmation of his office and that they may not apply in any event. Significantly, the notes of the November 28, 2008 interview with Ms. Cook record the grievor as saying, "Nobody ever sat him down and told him not to do this". This reflects a clear misunderstanding by the grievor of the seriousness of his misconduct.

(f) Finally, the grievor has attempted to portray the respondent's investigation as driven by bad faith and unfairness. The grievor's allegations include a complaint that the respondent relied on facts that the grievor admitted but then subsequently reversed himself.

121 Of course, the grievor is entitled to raise these objections to the respondent's investigation. However, the risk in this approach is when his objections are not substantiated.  In that event objections of this kind can lead to negative inferences about the grievor's acceptance of responsibility and the appropriateness of returning him to work. That is the case here. What was required of the grievor when confronted with the allegations against him was an early, complete and consistent explanation of what he had done. He did not do so during the respondent's investigation or in his evidence in this adjudication.

122 I accept, as urged by the bargaining agent, that progressive discipline is an important principle in discipline cases, especially with an employee with 18 years of service. But progressive discipline is the general approach and it does not apply in all cases. Where there has been a loss of trust and serious misconduct there can be justification to move directly to dismissal. In this case there was serious, deliberate and repetitive misconduct. As well, this is not a case where the grievor voluntarily and immediately accepted responsibility for his actions such as in Alberta Mental Health Board v. United Nurses of Alberta (Dismissal Grievance), [2001] A.G.A.A. No. 44 (Power), at para 42). That was also a case where there was unauthorized access to confidential information at work and I note the arbitrator in that case concluded that an eight month suspension was warranted in circumstances less serious than the ones in this case. 

123 I have considered another previous decision, Hillis v. Treasury Board (Department of Human Resources Development), 2004 PSSRB 151. The adjudicator in that case confirmed the respondent's decision to impose a ten day suspension for serious misconduct involving unauthorized access of information. However, as the adjudicator said, a ten day suspension was "by far … a mild measure" (paragraph 129). The respondent in that case applied that penalty (rather than dismissal) and the adjudicator was deciding whether the respondent had just cause for the ten day suspension. She was not deciding whether a 10 day suspension was fair and just in the circumstances and, indeed, she indicated that a more severe penalty would have been warranted.

124 The grievor in this case was employed at a position that carried a moderate level of responsibility including access to personal and confidential information and a moderate level of trust was also required of the grievor. He breached the obligations placed on him when he exercised that responsibility and he has not demonstrated in his evidence or during the respondent's investigation that he understands the nature of that responsibility or those obligations. His evidence demonstrates that he continues to avoid responsibility for his actions. Regrettably, this raises a concern about future reliability and confidentiality and whether the conduct in this case or similar conduct would be repeated in the event of a return to work. In these circumstances I conclude that there is just cause for the termination of the grievor from his employment.

D. Reliability status

125 In light of the above conclusion that there is just cause for the termination of the grievor the issues related to the revocation of his reliability status would seem to be moot. However, there was considerable evidence and argument on the security status of the grievor and I will proceed to address the jurisdictional issue. This issue arises because the respondent submits I do not have jurisdiction to consider the grievor's challenge to the revocation of his reliability status.

126 In order for me, as adjudicator, to have jurisdiction over the revocation of the grievor's reliability status the revocation must be "… a disciplinary action resulting in termination, demotion, suspension or financial penalty …" [emphasis added] under section 209(1)(b) of the Public Service Labour Relations Act. What is "a disciplinary action" has been considered in previous decisions. 

127 In Braun v. Deputy Head (Royal Canadian Mounted Police), 2010 PSLRB 63, the adjudicator pointed out that the question to be determined is whether and employer intended to impose discipline and whether its impugned decision was likely to be relied upon in the imposition of future discipline (para 137, citing Canada (Attorney General) v. Frazee, 2007 FC 1176). A leading text was also cited in Braun and it points out that when an employer decides not to punish an employee, the decision is non-disciplinary (Brown and Beatty, Canadian Labour Arbitration, September 2010, at paragraph 7:4210).  The situation was summarized at paragraph 143 of Hillis, another decision involving the revocation of reliability status and then termination:

…

… According to Brown and Beatty (7:4240), it is generally accepted that the employer cannot impose more than one penalty for the same offence. That is to say no more than one disciplinary penalty for the same offence. The revocation of a reliability status and the subsequent termination come under the employer's discretionary powers in paragraph 11(2)(g) of the Financial Administration Act and is not of a disciplinary nature, but rather of an administrative one. The basis for this action and the analysis it requires are different. By nature, the one necessarily looks to the employee's past actions and seeks to change and improve behaviour; the other evaluates, or in this case re-evaluates, the future relationship between the employer and the employee in terms of confidence, trust and reliability and the character of the employee…

…

128 I was not presented with any decisions of this Board that have decided it has jurisdiction over the revocation of an employee's reliability status. I acknowledge that this is a case where the grievor's reliability status was revoked after his termination, whereas other decisions involved revocation before termination from employment (Braun v. Deputy Head (Royal Canadian Mounted Police); Gill). However, in my view, that is a difference with no particular consequence to the issue of jurisdiction.

129 In this case I acknowledge that the grievor believes he was being punished by the respondent by the revocation of his reliability status. However, in my view, the respondent's decision was an administrative action taken in response to the findings of the grievor's admitted breach of the security policies of the respondent. Similarly, I am unable to find that the revocation of the grievor's reliability status was disguised discipline. It is the case that the revocation of reliability status is related to the termination of employment to the extent that the former relied on the facts of the latter.  However, this means the same facts created two results, not that the revocation was disciplinary.

130 I note there is some authority for the proposition that an adjudicator has jurisdiction over the procedural aspects of the decision of the respondent to revoke the grievor's reliability status, including any allegations of bad faith (Gill, supra). I have reviewed this issue and it seems to me that may be a logical difficulty finding jurisdiction over procedural issues in a situation that is administrative; an adjudicator either has jurisdiction or does not.

131 In any event, looking at the procedural issues in this case, the respondent did not notify the grievor that his reliability status was being reviewed or give him the opportunity to provide his views about that issue. There was a reference in the August 13, 2008 report by Ms. Heon that the grievor's reliability status would be reviewed but that is not notice in the sense required by administrative fairness.  Therefore, it cannot be said that the grievor had the opportunity to make a meaningful and thorough submission on the issue of whether his reliability status should be revoked. 

132 There is also the fact that the respondent took the August 13, 2008 report at face value and adopted the findings in that report including the two findings discussed above from that report: the grievor had passed information about BB to Mr. Decker and the grievor had looked up the name of AA. The grievor challenges those findings and I have found above they are not supported by the evidence in this adjudication. If the respondent had notified the grievor of the review of his reliability status he would have had the opportunity to correct these errors, as he did with the first meeting with Ms. Cook in October 2008 when he specifically denied he had looked up the name of AA. As well, it is not apparent that the respondent considered the two interviews with Ms. Cook in October and November 2008 or the technical investigation done by Mr. Touchette in June 2008 when it decided whether to revoke the security status of the grievor.

133 There are two responses to these concerns. First, I do not agree with the grievor that they amount to bad faith. The respondent was entitled to rely on the findings of the August 13, 2008 report of Ms. Heon and she made findings based on her interpretation of the information before her. There is no evidence that she or the person who conducted the review of the grievor's security status were biased or that they otherwise acted improperly. The respondent's risk of adopting the findings of the August 13, 2008 report was that they could turn out to be incorrect in some respects, as they did, but that is not bad faith. And, in any event, the security review of October 6, 2008 included a good deal of information that was correct. The second response to the grievor's concerns about procedural fairness is that the hearing has had in this adjudication serves to cure any unfairness in the respondent's process (Braun, supra, para 192; citing Tipple, supra).

134 Finally, the grievor challenges the authority of Mr. Macdonald to make the decision to revoke his reliability status. The basis of this challenge is that the authority to make that decision rests with the Deputy Head and it was not or could not be delegated to Mr. Macdonald, the departmental security officer. The written delegation to Mr. Macdonald was entered in evidence and it is dated September 18, 2007. Among other things it states that he is appointed by the deputy minister/deputy head under sections 10.1 and 10.9 of the Government Security Policy with "all functions, roles and responsibilities … including those contained in various documents including the Government Security Policy. It also delegates to Mr. Macdonald, "For greater certainty", the responsibility for "investigating allegations, complaints and incidents of internal/external wrongdoing, including by employees or other adverse activities". Turning to the Government Security Policy itself (effective February 1, 2002), section 10.1 states that Mr. Macdonald, in his capacity as a DSO, is appointed to perform a number of functions including "security screening." Section 10.9 sets out the process for security screening. On the basis of these documents I conclude that Mr. Macdonald had the delegated authority to make the decision to revoke the grievor's reliability status. 

135 For these reasons I conclude that I do not have jurisdiction to consider the non-disciplinary decision of the respondent to revoke the grievor's reliability status.

E. Summary and conclusions

136 The grievor used the respondent's data systems to look up the names of five individuals. Four of these did not have claims for employment insurance and, therefore, the grievor could not find any information about these individuals in the respondent's systems. The fifth individual did have a previous claim for employment insurance so the grievor was able to access personal and confidential information about that person, including his social insurance number. The grievor then told his wife this information and she passed it on to other people who were involved in a protracted dispute at the grievor's apartment complex. The grievor accessed the information at work to further his position in this conflict. During a subsequent investigation, the grievor admitted to looking at other information in the respondent's systems over a fifteen-year period for his friends and giving them advice about their claims for benefits.   

137 The grievor was suspended and then terminated from his employment for his conduct. The respondent also revoked the grievor's security status (reliability status) as a result of this conduct. He has grieved all three issues.

138 With regards to the suspension of the grievor, I disagree with the respondent's submission that this was an administrative suspension and, because it was administrative in nature, an adjudicator has no jurisdiction. The letter of suspension specifically relies on a statutory provision related to disciplinary suspensions and, despite the respondent's submission that this was an error, the letter is to be read as it is written. Therefore the suspension of the grievor was disciplinary and I have jurisdiction over that issue. However, since the dismissal of the grievor was made retroactive to the first date of the suspension the issue of the merits of the suspension are moot.

139  With regards to the dismissal of the grievor, his actions were a very serious violation of his oath and affirmation of office, as well as the policies of the respondent.  In addition, there are a number of factors that raise significant questions about whether the grievor understands the seriousness of his conduct or that he takes responsibility for it. The grievor incorrectly believes that using the respondent's databases only to look up the name of someone is not a significant problem. In addition, he apologized and made admissions about his misconduct but this was after he knew the details of the respondent's investigation. The pattern of his admissions was that he would make an admission about looking up the name of someone when he realized he could not deny it. The grievor also has alleged that the person who initiated the investigation of him did so because of a personal vendetta against he and his wife. Whatever motivation the person who initiated the investigation had, the core of that person's information and evidence turned out to be correct. Finally, the grievor attempted to portray himself as the victim and this person as the aggressor, but this is not borne out by the evidence.

140 The grievor's misconduct was deliberate and it had been occurring over a period of 15 years. The search of specific names was done to advance the interests of the grievor and his wife in a conflict within the apartment complex and it was used for that purpose. He would have obtained information about the other individuals he looked up except they did not have files in the respondent's database. He had an obligation to provide an immediate, complete and consistent explanation for his conduct and he did not do so during the respondent's investigation or in his evidence.  In these circumstances there was just cause for the termination of the grievor's employment. There was unexplained delay in the respondent's investigation of the grievor but for a significant period of the investigation he remained at work and was paid.

141 With regards to the revocation of the grievor's reliability status, that issue is moot as a result of the conclusion that there was just cause to terminate the grievor's employment. In any event, I find that I do not have jurisdiction to consider that issue.

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

Order

143 The grievances are dismissed.

April 11, 2011.

John Steeves,
adjudicator