FPSLREB Decisions

I. Individual grievance referred to adjudication

1 I am seized with a grievance presented by Jodi Pajic (“the grievor”) on August 21, 2006 and referred to adjudication on April 26, 2007 under paragraph 209(1)(b) of the Public Service Labour Relations Act (“the Act”). The grievor contested the termination of her employment. The requested corrective action is that the letter of termination be immediately withdrawn, that all copies of it be destroyed in her presence and that she be reinstated into her position as a field interviewer with her former employer, Statistical Survey Operations (SSO or “the employer”), with no loss of pay or benefits.

2 The grievance reads as follows:

I grieve the letter of termination of employment dated August 2, 2006 and signed by C. Jerry Page, Director – Western Region and Northwest Territories. I request consultation with my service officer on this grievance at the final level of the grievance procedure.

Corrective action:

That the above noted letter be immediately withdrawn, all copies destroyed in my presence, that I be reinstated in my position as Fields Interviewer with no loss of pay or benefits and that I be made whole.

[Emphasis added]

3 During the hearing, the grievor’s representative informed me that Ms. Pajic was no longer seeking reinstatement to her position but that she was claiming financial compensation for her termination and for the employer’s breaches of some provisions of the applicable collective agreement, which is between the Public Service Alliance of Canada (PSAC or “the bargaining agent”) and the employer for SSO Interviewers and Senior Interviewers (expiry date: November 30, 2007; “the collective agreement”).

4 The employer objected to my jurisdiction to consider alleged breaches of the collective agreement on the grounds that the grievance made no reference to any such alleged violation and was referred to adjudication under paragraph 209(1)(b) of the Act, as confirmed by the “Notice of Reference to Adjudication of an Individual Grievance” (Form 21) filed by the PSAC on the grievor’s behalf. Section 12 of Form 21 specifically refers to paragraph 209(1)(b). The reference to adjudication was signed by a duly authorized representative of the bargaining agent. As such, counsel for the employer claimed that the grievor was attempting to change the grounds of the grievance and relied on Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), to prevent me from entertaining the grievor’s position. I took the objection under reserve. I will address it in my reasons.

5 The grievor was terminated for allegedly falsifying survey data in the course of her fieldwork for a Labour Force Survey (LFS) conducted for the employer. The grounds for her termination are stated in a letter signed by C. Jerry Page, Director, Western Region and Northern Territories of the employer, on August 2, 2006, and are as follows:

…

Dear Ms. Pajic:

As a result of an investigation carried out by the management team, Western Region and Northern Territories, Statistics Canada, it is my decision to terminate your employment for cause. The termination will be effective immediately, 2 August 2006.

During the investigation, it was determined that appropriate procedures were not followed in your conduct at work with collecting data in the recent Labour Force Survey, in that it is determined that you falsified data.

You were given an opportunity to explain your actions and were not able to do so in a satisfactory manner.

…

6 Given the nature of the alleged misconduct in this case, some of the evidence presented at the hearing contains information that is protected under the Statistics Act, R.S.C., 1985, c. S-19, such as names, addresses and other personal information of individuals who were the subject of the survey. Section 17 of the Statistics Actprovides as follows: 

17. (1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under section 11 or 12 and except for the purposes of a prosecution under this Act but subject to this section,

(a) no person, other than a person employed or deemed to be employed under this Act, and sworn under section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act; and

(b) no person who has been sworn under section 6 shall disclose or knowingly cause to be disclosed, by any means, any information obtained under this Act in such a manner that it is possible from the disclosure to relate the particulars obtained from any individual return to any identifiable individual person, business or organization.

7 Section 11 of the Statistics Act sets the conditions under which Statistics Canada may enter into an agreement with a provincial statistical agency for the exchange and transmission of statistical information, while section 12 sets out those under which Statistics Canada may enter into an agreement with a “… department or municipal or other corporation …” for the sharing of information; both these sections contain measures designed to protect the information of persons who respond to surveys. For its part, section 6 provides for the oath or solemn affirmation to be taken by a person employed or deemed to be employed under the Statistics Act and the official representative of a business retained under contract to perform services under the Statistics Act; that oath or solemn affirmation is another measure adopted by Parliament to protect statistical information learned during the performance of duties or services under the Statistics Act.

8 The employer has asked me not to disclose in my decision information protected by the Statistics Act and requested that I refer to the various situations described in evidence by not revealing the names and addresses of individuals to whom that protection applies, in order to give effect to the protection offered by that statute.

9 In the same vein, the parties have also requested that I seal a number of exhibits that contain information protected by the Statistics Act. In dealing with such a request, I must act within the parameters developed into what is known as the “Dagenais/Mentuck” test. The rule is that Court and quasi-judicial tribunal proceedings are public and documents that are on the record of those proceedings, such as exhibits, are also public. However, a Court or a quasi-judicial tribunal may impose limits on the accessibility to their proceedings or record in certain circumstances, where in its view the principle of open justice should give way to a greater need to protect another important right. In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, the Supreme Court of Canada reformulated the Dagenais/Mentuck test as follows:

…

1. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
2. the salutary effects of the … order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

…

10 In Vancouver Sun (Re), 2004 SCC 43, the Supreme Court of Canada decided that the Dagenais/Mentuck test applies to all discretionary decisions that limit the right to information during judicial proceedings. More recently, the Supreme Court of Canada reaffirmed at para. 13 in Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, that “[t]he analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect the openness of proceedings…” Further, as no arguments were presented to me in support of the public’s interest in the openness of these proceedings, I must take account of that interest without the benefit of argument: R. v. Mentuck, 2001 SCC 76, at para. 38; Vancouver Sun (Re), at para. 48.

11 Some evidence in this case pertains to information collected in the course of conducting a Labour Force Survey (LFS), and includes names, addresses and other personal information obtained through the survey. The persons who participated in the LFS were required by the Statistics Act to disclose such information,failing which they could face a fine or a term of imprisonment. I accept that the protection of information that would permit to identify persons who participated in the LFS serves an interest that is important to Canadian society, that of full participation in surveys conducted by Statistics Canada; this is clearly illustrated by the safeguards that Parliament thought necessary to set out in the Statistics Act to protect that interest. I also accept that public access to information that would permit to identify persons who participated in the LFS would create in the context of these proceedings a serious risk to the important interest of full participation in surveys conducted by Statistics Canada and that a sealing order is necessary to prevent that risk.

12 I further believe that the salutary effects of a sealing order in these proceedings outweigh its detrimental effects on the public interest in open and accessible proceedings. There is no doubt that the evidence that contains information that would permit to identify persons who participated in the LFS is central to my decision on the merits of the matter before me. In addition, in the circumstances of the case before me, the protection of such information seems more important than the public’s right to access it. Consequently, evidence that contains information that would permit to identity persons who participated in the LFS shall be sealed. I had informed the parties at the hearing that their request was granted. The following exhibits are therefore sealed:

E-18	Carol Irving’s Report, June 2006;
E-19	Carol Irving’s Report regarding “Code 70”;
E-21	Report of the Fact Finding Conference call, July 31, 2006
E-22 and E-23	Appendix 1 – Request for Follow-up/Transfer Forms;
E-24	Case Print-out;
E-26 to E-33	“FO-2” Reports;
E-34 and 34A	Computer Print-out/Query for CAPI 2006_All, Labour Force Survey Record of Attempts;
E-35	LFS Case response Details;
E-36	LFS Case response Details;
E-42	Address and picture of visited Household;
E-44 and 45	Addresses and pictures of visited Household; and
E-50 and 51	Print-out, Case details.

II. Summary of the evidence

A. For the employer

13 The employer called five witnesses. Their testimonies are summarized next.

1. Arlene McCreary’s testimony

14 At all relevant times until the grievor was terminated, Arlene McCreary was Acting Regional Program Manager, CAPI (“Computer-Assisted Personal Interviewing”), for the employer. She produced in evidence and explained in detail Exhibits E-1 to E-36 inclusive, introduced by counsel for the employer. Ms. McCreary’s more than 22 years of experience with Statistics Canada as a field interviewer as well as a supervisor of both the CAPI (field) and the CATI (“Computer-Assisted Telephone Interviewing”) (phone) interviewers provided her with the full knowledge and understanding of Statistics Canada’s operations.

15 The witness explained how the SSO, as a separate agency under the Statistics Act, operates with its unique workforce of both CAPI and CATI interviewers. The following are the main unique workforce characteristics of the SSO interviewers bargaining unit:

1. They are temporary employees under the Statistics Act.
2. They are paid hourly and work part-time.
3. Their assignments are workload driven. 
4. CAPI interviewers follow scripts in a highly organized and structured process, and their central responsibility is to ensure the accuracy and reliability of the data that they input and send to the employer’s Ottawa office (“Ottawa”).
5. The LFS has been carried out monthly since 1945 and has been a computerized questionnaire since 1994; when completed, it is automatically transmitted to Ottawa.
6. Timelines, accuracy and reliability are critical because Statistics Canada’s unemployment rates are published within 13 days after data collection is completed.
7. The SSO is governed by its own legislation, the Statistics Act, and is a separate agency not subject to the Treasury Board as the employer.

16 The witness introduced and emphasized the field interviewers’ unique and mandatory working conditions, set out under the Statistics Act (see section 30 of that Act, filed as Exhibit E-8). Those conditions were well known and acknowledged by the grievor, who endorsed and signed the “Oath of Office and Secrecy” (Exhibit E-5), the “Interviewer Work Agreement” (Exhibit E-6) and the “Employee Declaration” (Exhibit E‑7).

17 Ms. McCreary testified that the grievor mainly worked with the LFS at the times relevant to her termination. The grievor attended all training sessions and all refresher-training courses after she was hired. She received all the training documents provided by the employer. In addition, all interviewers have direct access to their designated senior interviewer for help, assistance and direction at all times. Ms. McCreary’s evidence was that the grievor spoke regularly with her senior interviewer, that at no time did the grievor indicate to her senior interviewer that she did not understand her work, and that at no time did the senior interviewer hesitate or fail to respond to the grievor’s work-related questions.

18 The witness introduced Exhibits E-10 to E-12, monthly newsletters for all CAPI interviewers, which included the grievor. They demonstrate the constant communications to them about all aspects of their duties and responsibilities. The purpose was to keep all field interviewers updated on the different surveys that they were carrying out. Each newsletter included extensive discussions and details of the LFS’ features and of the challenges that the CAPI interviewers face.

19 The witness explained the importance of the LFS, including its impact on Canada’s regions. The LFS is carried out monthly and is run nationally. Employment and unemployment statistics are key indicators of Canada’s economic performance. All levels of government — federal, provincial and municipal — rely on and use employment and unemployment statistics to implement policies and programs, including job-creation and training programs.

20 The witness indicated that Human Resources and Skills Development Canada uses unemployment statistics to determine eligibility for employment insurance. Additionally, businesses, economists, analysts, labour organizations and others use the LFS results. Those results affect the Consumer Price Index, which in turn influences pension plans, welfare payments, among other issues. The LFS results become public information. They are published, used online, and extensively quoted and discussed not only throughout Canada but also by other countries. The witness concluded that the LFS results must be accurate and reliable. That is critical to Statistics Canada’s success and reputation.

21 The witness described how a field interviewer carries out an LFS. Each LFS interviewer, when hired, is given a unique seven-digit identification number. That number is not reused if the interviewer leaves his or her position. It is automatically coded on all the work performed by that interviewer on each LFS assignment.

22 The SSO provides each interviewer with a laptop. Each interviewer receives his or her monthly caseload directly to that laptop from Ottawa through a data collection manager, who assigns the LFS workload to the interviewers, each of which is assigned a certain amount of cases, each with a specific household address. The interviewer receives a map of the defined area to survey, which contains a list of assigned addresses loaded onto the laptop. Each LFS is coded with a four-digit number that indicates the month. Interviewers also receive a monthly mail package that includes the newsletter.

23 As indicated, each interviewer receives training, including manuals and procedures to follow. The monthly newsletter keeps them up to date. They are able to consult their training manuals whenever they need to. In addition, they have constant telephone access to their designated senior interviewer.

24 Every aspect of the LFS is minutely scripted. A field interviewer must ask a scripted list of questions at each designated household to survey. Along with that list, their work process is also scripted, and the case-flow workload is highly detailed, as shown in Exhibit E-13.

25 The witness testified that, although field interviewers are on their own in the field, and although they are aware that they are subject to the quality control of their work, it is still possible to avoid some checks by not providing a surveyed household’s telephone number. By doing so, the field interview of that household’s address cannot be completed, and the designated interviewer will get a return call for that address the next month. This means that the survey process will be delayed because, until the full details required from each household are obtained by the field interviewer, the information from that household cannot be sent back to Ottawa. Such delays mean that the second group of interviewers cannot perform their follow-up telephone interviews the next month, which are required to complete their duties.

26 Ms. McCreary testified that the employer discovered a “late filing concern” in Ms. Pajic’s “Household Spending Survey” that she worked on in January, February and March 2006. Subsequent verification of this “timeliness issue” led to a red flag of the grievor’s LFS work. Consequently, she asked Carol Irving, the grievor’s senior interviewer, to observe, in the grievor’s presence, the LFS that the grievor was then performing.

27 Ms. Irving made her observations in the grievor’s presence. Ms. Irving observed the grievor’s work, asked questions of the different household addresses that were part of the grievor’s LFS assignments, questioned the codes that the grievor recorded, and examined all the demographic information that the grievor recorded and compared it with the demographics of those that she observed personally at the same households that the grievor had recorded. Ms. Irving prepared her report of her observations; it was entered as Exhibit E-18. Ms. Irving issued another revised report in July 2006, which was filed as Exhibit E-19. When asked for her reactions after reading Exhibits E-18 and E-19, Ms. McCreary said that she was “shocked and appalled” because many of the LFS addresses contained incorrect and unreliable data. It is critical for the SSO that LFS data be accurate and reliable.

28 With that evidence in hand, Ms. McCreary convened Ms. Pajic to a fact-finding hearing to discuss the anomalies that Ms. Irving found in the LFS data. The hearing was scheduled for July 31, 2006 by teleconference (“the conference call”). The grievor and her bargaining agent representative, Donna Henry, attended, as did Ms. McCreary and Tara Petrie Duff, representing the employer. The witness referred to Exhibit E-21 that, in her view, reflects the discussions from the hearing. That document relates to 7 cases that, according to the witness, involved about 24 anomalies.

29 After a thorough examination of the grievor’s explanations, Ms. McCreary concluded that Ms. Pajic’s story did not make sense and that, over several months, she had falsified records and had broken the bond of trust with her employer. Ms. McCreary reiterated that Statistics Canada requires accurate and reliable data collection. Furthermore, the SSO, which is subject to the provisions of the Statistics Act, enforces a zero-tolerance policy for data falsification by its employees. Contravening that policy can mean immediate dismissal for an employee.

2. Carole Dunstone’s testimony

30 Carole Dunstone was at all material times Assistant Director of Operations for the employer, and she reported to the director of operations, Mr. Page. The witness had full authority to discipline but always kept her director informed of her decisions. In this case, many people were consulted throughout the process that led to the decision to terminate the grievor’s employment. Regular discussions, based on the June 2006 LFS, the subsequent observations and the conference call, occurred between Ms. Dunstone, Ms. McCreary, Ms. Irving, and representatives from the employer’s Human Resources branch, all of which Ms. Dunstone relayed to Mr. Page. A copy of all relevant information and the recommendation to the director was sent to Human Resources.

31 Ms. Dunstone testified that other SSO employees have been disciplined and terminated for falsifying data collection. In summary, it was agreed with Mr. Page and the management team led by Ms. McCreary that, if at the end of the conference call, Ms. McCreary’s conclusions did not change, then Ms. Dunstone was authorized to inform the grievor that Ms. McCreary would recommend terminating her employment. After the conference call ended, Ms. Dunstone and Bonnie Holte, from Human Resources, held another conference call the same day with Mr. Page and confirmed the decision to terminate the grievor.

3. Carol Irving’s testimony

32 Ms. Irving was the grievor’s senior interviewer from 2003 until the grievor’s termination in August 2006. Statistics Canada hired Ms. Irving. She began working with the SSO in 1988 as an interviewer and then as an acting senior interviewer for several terms before becoming a full-time senior interviewer in September 2001. She retired in 2009. She stated that the LFS is the only survey at issue in this case. As part of her duties and responsibilities, Ms. Irving did the following:

1. managed a team of interviewers;
2. assessed reports;
3. took action if targets were missed (e.g., the target of a 75% survey response by Wednesday of an LFS week);
4. monitored all actions that she took;
5. helped and assisted interviewers in all aspects of their duties;
6. provided training for several surveys, including the LFS;
7. handled “refusal” follow-ups;
8. observed interviewers; and
9. validated interviewers’ work, as required.

33 Ms. Irving explained in detail her continuous availability and accessibility to all her team interviewers, including providing them with her home, cell and cottage phone numbers and being available 24/7 to all interviewers, including Ms. Pajic. In addition, were a field interviewer unable to reach Ms. Irving or any other senior interviewer, he or she had a complete list of the phone numbers of all other senior interviewers in their regions. She stated that the grievor knew that she could use, and that she had used in the past, the calling system and that the grievor never complained that she could not reach Ms. Irving. The grievor also had a working laptop. Ms. Irving was never advised of any laptop problems.

34 The employer introduced Exhibits E-37 to E-59 through Ms. Irving, who explained them. She explained the SSO’s training efforts and continuous communication measures, used to improve the overall efficiency of its CAPI interviewers (Exhibits E-38 to E-41). Those exhibits demonstrate and emphasize the LFS’ importance and the SSO’s need to attain the highest levels of accuracy and reliability in its LFS data collection. Ms. Irving also underlined the importance of the LFS to the SSO’s overall activities within Statistics Canada. She emphasized the continuous training programs for CAPI interviewers of three to three-and-a-half days of LFS classroom training, followed by field interviews in which the senior interviewer has the CAPI interviewers perform a live test. The witness explained the field interviewers’ coding of entries used by the LFS.

35 The witness reviewed Exhibits E-18, E-19, E-21, E-34 and E-48 and stated categorically that many if not the majority of the grievor’s entries were incorrect. For instance, many entries in Exhibit E-18 for survey addresses as “void” (under renovation) or “vacant” proved incorrect and false after Ms. Irving verified them. According to Ms. Irving, Exhibit E-19 reveals numerous incorrect entries made by the grievor, after Ms. Irving verified them. The “LFS Observation Report on Vacancy Check Results” prepared by Ms. Irving and signed on July 25, 2006 (Exhibit E-48; “LFS Observation Report”) reveals many anomalies that the grievor recorded and that, after verification, were determined incorrect and false. Finally, the conference call revealed that the grievor made many incorrect data entries in the seven discussed cases (Exhibit E-21).

36 Ms. Irving stated that when, during an interview, a household respondent refuses to answer, the interviewer must record the results as a refusal. The senior interviewer is responsible for following up on all refusals. That approach is used to avoid aggressiveness with the householder and allows the senior interviewer to revisit the householder in an attempt to resolve the refusal.

37 In Ms. Irving’s view, the employer expects a field interviewer, working alone most of the time, to be honest, accurate and reliable; he or she is working on the honour system. Her evidence was that, for the seven cases mentioned in Exhibit E-21, it was clear that the grievor failed to provide telephone numbers. By doing so deliberately, she attempted to avoid detection for falsifying data. Moreover, the witness stated that she has done many validations over the years but that she could not recall a case with as much false information as that of the grievor. Ms. Irving spoke of more than a few isolated incidents. Her evidence was that, although the focus was mainly on the seven cases, the observations, the fact-finding inquiries and the investigations that resulted took approximately two months to establish a complete picture. Once the review process was complete, Ms. Irving testified that numerous Statistics Act violations by the grievor had been identified that the grievor could not justify. In summary, Ms. Irving was disappointed and shocked that the person she had trained “did so many things wrong,” in her words.

38 In addition to the exhibits, which display numerous errors and incorrect entries, Ms. Irving pointed out that her LFS Observation Report demonstrated that the grievor had coded 18 cases as vacant. After a thorough examination, Ms. Irving determined that only 2 of them were vacant. In addition, Ms. Irving reviewed Exhibit E-18 and noted that the grievor coded three separate residences that were part of her assigned duties as homes under renovation. In fact, the witness testified that none of them were under renovation and that the data was incorrect and false.

39 In conclusion, when Ms. Irving was asked, “Would you want the grievor to work for you again?” she replied, “No. This job is on the honour system. I must have absolute confidence and I don’t feel I would ever be able to trust Jodi Pajic again because I would always be worried and wondering if the information she was putting into the cases was correct.” Finally, the witness stated that “she had no malice toward Ms. Pajic” but that she would not want her on her team.

4. Vincent Helmer Hardung’s testimony

40 Mr. Hardung was National Director, Census - Mail Out and the Mail Back Project for the employer when he testified. From 2006 to 2010, he was National Chief of the Survey Infrastructure Support Section in the Collection and Planning Division, Statistics Canada. In 2006, part of his responsibilities was to send LFS cases to the field for both the CAPI and the CATI interviewers.

41 Mr. Hardung testified that all surveys are issued from Ottawa and that part of his responsibilities is supervising the day-to-day operations of staff who move data and provide technical support. Part of the employer’s Technical Support Division includes the “Case Man System,” which includes the “DIPP System” (Data Integration and Planning System). Those systems were introduced in 2000 and were in effect at all times relevant to this grievance.

42 Mr. Hardung testified that he gave instructions for preparing Exhibits E-34 and E-34A for the hearing. Those exhibits reflect a package of 23 cases that the grievor was assigned when her work was being investigated and observed for anomalies in the data that she inserted into the LFS that she produced in 2006. Exhibit E-34 is a 9-page summary of the anomalies in those 23 cases, which includes the 7 cases investigated in the conference call (referred to in Exhibits E-21 and E-24).

43 Exhibit E-34A is a further in-depth examination of those 23 cases that also includes the 7 cases, which explains in greater detail every computer entry by the grievor. It shows, for instance, if the grievor made a personal visit to a respondent’s house or if she phoned. The contents of both Exhibits E-34 and E-34A provide a full picture of every computer entry by the interviewer in detail, including the exact time every activity was performed.

44 It should be noted that the contents of Exhibits E-34 and E-34A were not questioned and that they remained uncontested.

5. Wayne Smith’s testimony

45 Wayne Smith, as of his appearance as a witness on March 15, 2012, was Chief Statistician of Canada and the Deputy Minister responsible for Statistics Canada. At all times in 2006 relevant to this case, he was Assistant Chief Statistician, Communications and Operations, Statistics Canada. In that position, he was responsible for the final level of the grievance procedure, including the one that involved the grievor, and he rejected her grievance on February 1, 2007.

46 Counsel for the employer called Mr. Smith in reply to an issue raised by a witness, Ms. Henry, called by the bargaining agent on December 13, 2011. In her testimony, Ms. Henry had raised the question of Mr. Smith’s reaction to the introduction of confidential information, protected under the Statistics Act, by a bargaining agent representative at the final level of the grievance procedure for Ms. Pajic’s grievance. According to Ms. Henry, Mr. Smith directed the bargaining agent to immediately destroy that information. The grievor’s representative objected to that reply evidence on the basis that discussions during the grievance procedure are privileged.

47 My ruling on the objection was to allow Mr. Smith’s reply evidence because the grievance procedure discussions were introduced by the grievor’s representative in examination-in-chief through his witness, Ms. Henry.

48 The final level grievance meeting was held in Mr. Smith’s Ottawa office. Present were Annette Marquis, PSAC National Component, and Sue Ross, the employer’s human resources officer, assisting Mr. Smith. The grievor and Ms. Henry, for the bargaining agent, participated via conference call. The grievance hearing took place over three days, November 27 and December 12, 2006 and January 22, 2007.

49 In her testimony, Ms. Henry stated that, at one point in the December 2006 meeting, the participants from Ottawa thought that the conference call was disconnected, but it was not. She heard Mr. Smith say, “So, we’ve agreed to shred these documents.” Ms. Henry referred to “documents” and to “evidence” a few times She testified that she said that she “shredded hers” and that she heard the sound of tearing documents.

50 In response to Ms. Henry’s remarks, Mr. Smith denied that that exchange ever took place. He stated, “All I can say is it is absolutely untrue. No discussion like that ever occurred, about shredding documents. No.” Mr. Smith stated that he never had a shredding machine in his office and that, if any confidential documents had to be shredded, a set procedure was in place for authorized officers to shred them in a designated and controlled manner in a secured area of the building. Ms. Marquis was present at all times during the three hearing days in Mr. Smith’s office.

51 Mr. Smith was asked if he had any concerns about the information that Ms. Marquis had access to in this case. He replied that it was clear in the first meeting that she had access to information confidential under the Statistics Act that she never should have received, namely, details of and names and addresses of individual respondents. Ms. Marquis was not a Statistics Canada employee, but she possessed that confidential information. Consequently, on the first day of the grievance hearing, Mr. Smith requested the return of that information.

52 Mr. Smith testified that, given that situation, it became clear that a need existed to establish a procedure or mechanism to deal with confidential information when it became relevant to the facts of a grievance.

53 Mr. Smith testified that it had been difficult to retrieve the confidential information from Ms. Marquis. As a result, discussions took place with Heather Brooker, President, PSAC National Component. He was eventually successful and, before the end of January 2007, he reached an agreement on a procedure that would be applied in future cases. They also agreed that the bargaining agent would destroy the information in its possession. Mr. Smith concluded by stating that the employer eventually received a written certification by a representative of the PSAC’s National Component that the information had been destroyed.

B. For the grievor

54 The grievor’s representative called three witnesses. I will now summarize each witness’ testimony.

1. Florence Jean Tokar’s testimony

55 Florence Jean Tokar is an experienced field interviewer who has been carrying out the LFS for close to 13 years. She testified that she has made mistakes in the past but that, when she did, she reported them to her senior interviewer. She is the PSAC Local 50140 president and is aware that other field interviewers have made errors. She stated categorically that, if an error is made, “you fess up and discuss it with your senior interviewer.” She agreed that falsifying data is serious and that it is grounds for terminating employment.

56 Ms. Tokar outlined some important characteristics of the LFS. Both the CAPI and the CATI interviewers must follow a scripted process in each interview. At each designated address, the field interviewer must obtain all the demographics of each inhabitant, as described in the documentation. If the resident opens the door, the scripted process must be completed. The interviewer must request and obtain a telephone number. If not, the phone interviewer will not be able to conduct his or her scripted duties the next month, and the file is returned to the field interviewer for the next month. If a resident refuses the interview, the refusal must be recorded, and the senior interviewer must be advised. The senior interviewer is responsible for revisiting the resident and attempting to obtain answers to the scripted questions. If a resident is absent, the field interviewer normally leaves a message requesting a callback. If the resident calls, the field interviewer does the scripted interview over the phone and enters the results into the laptop. When the interview is finally complete, the results are transmitted to the Ottawa Centre.

57 The normal method for gathering household data is to enter it into the laptop. In exceptional cases, the data is put into a “paper recording,” which is then transferred to the laptop. Ms. Tokar stated that paper recordings were not efficient in LFS.

58 Ms. Tokar confirmed that the scripted process was mandatory, without exception, no matter which part of town the field interviewer worked in. If a field interviewer believes that a respondent might be stretching the truth, he or she must use common sense and record the information, and then immediately or as soon as possible discuss the incident with her senior interviewer. Ms. Tokar stated that the important thing is that the material going into the laptop is accurate and reliable. Any doubts must be discussed with the senior interviewer before the data is transmitted.

59 In cross-examination, the witness stated that field interviewers normally work alone. If they have doubts about inputting data from a household respondent, then they must contact their senior interviewers and discuss their specific concerns before transmitting the data. If they do not act diligently and do not follow the scripted procedure, they open themselves to the consequences of filing falsified data.

2. The grievor’s testimony

60 By June 2006, the grievor had worked with Statistics Canada for approximately three years as a field interviewer. To that point, she had worked on different surveys, e.g., “Household Spending,” the LFS, “Health Services” and “Kids Survey.” At all times relevant to the grievance, the grievor worked on the LFS and received all the related regular and follow-up training. Her general duties consisted of gathering information from designated household residents, entering it into her laptop and sending it to Ottawa.

61 The grievor’s normal workweek was approximately 20 hours. She explained all aspects of her LFS duties and responsibilities, including the LFS “birth period,” the reference week, the survey week and the time constraints under which she worked. She explained that she was knowledgeable of the need for the accuracy and reliability of the data that she gathered and input into her laptop. She confirmed that she was fully aware that she could communicate with her senior interviewer for assistance, counsel and guidance, when required, which she did. She added that her senior interviewer recognized that the grievor was an experienced LFS interviewer whom all her colleagues liked and appreciated.

62 The grievor explained in detail her five different work areas in Winnipeg, which consisted of a mixture of high- and low-end areas, including low-income, welfare and apartment building areas and some areas of higher turnover. She stated that the LFS script is identical for all areas. She explained and demonstrated her full understanding of the definitions and outcome codes described in Exhibit E-15.

63 The grievor referred to her excellent performance reviews from different senior interviewers, including Ms. Irving, who appreciated her as a high-performing employee with excellent qualities and skills, including computer skills (Exhibits U-3 to U-7). At the times of those performance reviews, the grievor’s record was free of discipline.

64 The grievor mentioned that anomalies in her LFS data were brought to her attention in spring 2006 from an observation conducted by her senior interviewer, Ms. Irving, whose LFS Observation Report was signed on July 25, 2006 (Exhibit E-48). The investigation that resulted in that report revealed several anomalies. Of the 21 cases examined, only 7 contained the telephone numbers of interviewed residents. In addition, the validation of households marked “vacant” or under “renovation” revealed that, of the 21 cases, 17 were coded incorrectly. Ms. Pajic referred to the report’s overall assessment of her, which stated as follows:

Jodi needs to ensure that she uses credible sources and includes the name, addresses and phone numbers of the contact persons. Responsibility lies with Jodi to ensure that the information she provides is accurate and reflects the status of each dwelling.

65 The grievor acknowledged receiving that report. She attended a July 2006 training session on interviewer skills, including another session on vacancies and other issues of reinforcement required by field interviewers.

66 The grievor referred to the conference call notes (Exhibit E-21) and agreed that the contents of the discussions with the senior interviewer were correctly reported and reflected in the notes. In her explanation of her actions, which were correctly reflected in Exhibit E-21, the grievor stated that she had no remorse for what she had done.

67 Referring to the LFS Observation Report (Exhibit E-48), the grievor stated that she was speechless and shocked by the comments because she felt that she had received good job evaluations in the past. With respect to the seven cases that were discussed during the conference call, the grievor stated that, for all seven, without exception, she “did not wilfully enter any false data.”

68 The grievor’s testimony was that, at all times before the conference call, including the period covered by the LFS Observation Report, at no time did Ms. Irving speak to her of about problems or errors in her work. In addition, the grievor stated that at no time was she criticized for any incorrect work. She insisted that she never wilfully made errors in any of the work that she performed and that she followed all the practices and procedures from all the training programs she had taken over the years.

69 The grievor’s representative asked her the following question: “To the best of your knowledge and ability, did you follow the oath of office of the Statistics Act and article [sic] 6 of that Act?” The grievor replied in the affirmative. He then asked her, “Did you like your job although you now say that you don’t want to be reinstated?” She answered, “Yes, I loved it because I was good at it, at least I thought I was good at it. It gave me the flexibility of a working mom with three children and allowed me to also get out and talk regularly to adults.”

70 Finally, the grievor stated that, throughout that difficult period, neither her superior nor anyone else spoke to her about any specific problem. She also stated that, before July 2006, no one had ever advised her that she was under investigation.

3. Ms. Henry’s testimony

71 Ms. Henry is a long-time federal public service employee. She worked for the Canadian Broadcasting Corporation as a news editor, then for Parks Canada beginning in 1976, and then for Statistics Canada since 2003 as a field interviewer for many different surveys. From 2006 to 2009, she worked on many LFS and held a bargaining agent position from 2004 to 2009 while at Statistics Canada. She had an advisory role as a bargaining agent representative in this case when she assisted the grievor in the conference call. Ms. Henry expressed the view that, for falsification to be proven, it had to have been deliberate. In her mind, without intent, there is no falsification.

72 When the employer informed the grievor of its decision that she would either be terminated or be asked to resign, she first wanted to talk to her husband; she did not wish to resign. She felt that everyone would believe that she was guilty if she resigned. She said that she was not guilty.

73 After Ms. Pajic was terminated for falsifying data, Ms. Henry called Denis McCarthy, of the PSAC’s National Component in Ottawa, for direction. He advised that the call was not unexpected because, at that time, six or seven Statistics Canada employees were terminated for violating the Statistics Act. Ms. Henry was informed that the best that the PSAC could do was to provide an employee affected by a termination the possibility of resigning, to avoid having a termination on their work record. As a result, the PSAC offered to draft the grievor a letter of resignation. However, she refused to resign.

74 Ms. Henry stated that she signed an interviewer work agreement (such as Exhibit E-6) and the terms and conditions of employment with Statistics Canada (Exhibit E-7). She agreed that those documents are founded on honesty, accuracy, reliability and valid data recording. She added that Ms. Marquis was not a Statistics Canada employee and that Ms. Marquis disposed of the confidential information in her possession after the final-level grievance hearing for Ms. Pajic’s grievance. Finally, the witness stated that all materials gathered by its employees belong to Statistics Canada.

75 In conclusion, Ms. Henry confirmed that interviewers are not told ahead of time if they will be validated or verified. She confirmed that the grievor did not say anything that contradicted the contents of Exhibit E-21. Finally, Ms. Henry’s testimony revealed a very sensitive, dedicated and honest person.

III. Summary of the arguments

A. For the employer

76 Counsel for the employer began by reiterating the critical importance of the obligation on field interviewers to not make false statements or entries for data that they collect as part of their duties. She reminded me of the fact that every field interviewer takes an oath of office and is apprised of the provisions of the Statistics Act that are meant to ensure the integrity of the information collected under that statute. A breach of that obligation is an offence under that Act,and the alleged perpetrator may be prosecuted.

77 Counsel for the employer stressed the importance of the LFS. The data obtained through it is used to determine key indicators of the Canadian economy, such as the unemployment rate. The integrity of the data is critical to Statistics Canada’s reputation.

78 Counsel for the employer argued that the issue is whether the employer proved that it had just cause to discipline the grievor and whether termination was an appropriate penalty. She urged me to find that, on a balance of probabilities, Ms. Pajic falsified data on a number of occasions. The evidence pertained to seven instances in which the grievor deliberately entered false information, as established by the forthright and credible testimonies of Ms. McCreary and Ms. Irving.

79 Counsel for the employer reviewed the evidence and testimony about the alleged false entries in the seven cases and pointed to the lack of credibility in the grievor’s explanations for those entries. In her view, Ms. Pajic made up stories to cover up that she entered false data, i.e., data that had no relation to the actual situations in the households that she was to visit. In counsel’s view, the grievor’s explanations and excuses as to inclement weather or unsafe neighbourhoods simply do not hold up and were not corroborated by independent evidence; the evidence was quite to the contrary.

80 Counsel for the employer stressed that the employer made its case and that it established that Ms. Pajic had falsified data when conducting a survey, which constitutes serious misconduct and a serious breach of trust. The employer must have complete trust in its interviewers, since they work independently and without immediate supervision. When such a serious breach occurs, the employer is justified in not imposing progressive discipline but in resorting to termination.

81 Counsel for the employer referred me to the following jurisprudence: Turner v. Canada Customs and Revenue Agency, 2001 PSSRB 38; Pagé v. Deputy Head (Service Canada), 2009 PSLRB 26; Pagé v. Attorney General of Canada, 2009 FC 1299; Baptiste v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 127; Air Canada v. Canadian Auto Workers, Local 2213 (1999), 86 L.A.C. (4th) 232; Canada Post Corporation v. Canadian Union of Postal Workers, [2001] C.P.A.S. No. 58 (QL); Canada Post Corporation v. Canadian Union of Postal Workers, [2001] C.P.A.S. No. 9 (QL); Basra v. Canada (Attorney General), 2010 FCA 24; Biltrite Rubber (1984) Inc. v. United Steelworkers of America, Local 526, [2005] O.L.A.A. No. 91 (QL); North Bay Nugget v. North Bay Newspaper Guild, Local 30241 (2005), 143 L.A.C. (4th) 106; Faryna v. Chorny, [1952] 2 D.L.R. 354; Brown and Beatty, Canadian Labour Arbitration, 4th Ed., at para 7:2200; Renaud v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 42; and Baptiste v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 105.

82 On the question of the grievor’s claim that the employer breached provisions of the collective agreement, counsel for the employer argued that that line of argument constituted a change to the grounds of the grievance. The grievance makes no mention of an alleged breach of the collective agreement. Furthermore, I am seized with a grievance referred to adjudication under paragraph 209(1)(b) of the Act, i.e., for disciplinary action. Consequently, counsel argued that I have no jurisdiction to consider any of the arguments about breaches of the collective agreement. She referred to the following authorities: Burchill; Lee v. Deputy Head (Canadian Food Inspection Agency), 2008 PSLRB 5; Hanna v. Deputy Head (Department of Indian Affairs and Northern Development), 2009 PSLRB 94; Shneidman v. Attorney General of Canada, 2007 FCA 192; Juba v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 71; Babiuk et al. v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 51; and Laughlin Walker v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 62.

83 In the alternative, counsel for the employer argued that the grievor was apprised of and had an opportunity to review all the material on which the employer relied to take action and that she cannot claim that she was taken by surprise by the grounds for her dismissal. At no time did Ms. Pajic seek particulars or attempt to access documents through the access to information process to defend herself. Counsel for the employer concluded that, in any event, the adjudication, which was a hearing de novo, cured any such problem; see Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.) (QL); Shaver v. Deputy Head (Department of Human Resources and Skills Development), 2011 PSLRB 43; Mohan v. Canada Customs and Revenue Agency, 2005 PSLRB 172; Brecht v. Treasury Board (Human Resources Development Canada), 2003 PSSRB 36; East v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 21; Oliver v. Canada Customs and Revenue Agency, 2003 PSSRB 43; and Ling v. Treasury Board (Veterans Affairs Canada), PSSRB File Nos. 166-02-27472 and 27975 (19990513).

B. For the grievor

84 The grievor’s representative agreed that the issue was whether discipline was warranted and, if so, whether the penalty was appropriate.

85 The grievor’s representative first raised the issue of a lack of delegated authority of the person who imposed the discipline on Ms. Pajic. Since no evidence showed that the employer’s representative was vested with the delegated authority under the employer’s organizational structure to sanction the grievor, the decision cannot stand.

86 The grievor’s representative argued that the employer altered the grounds on which it imposed discipline on her by not limiting the evidence to solely the seven cases that I had ruled were the central body of evidence about the alleged falsification of data, which denied her the right to a fair process and violated the principles of natural justice. In his view, the grounds for the termination were vague and imprecise and they should have been set out in greater detail in writing in the letter of discipline given to Ms. Pajic.

87 The grievor’s representative also raised that the employer breached the collective agreement by not providing the grievor with documents from her file within a reasonable period. In his view, all the evidence presented at the hearing should be excluded for that reason.

88 The grievor’s representative also mentioned that the employer’s direction to the bargaining agent to destroy documents, including Ms. Henry’s notes, prevented the grievor from properly preparing and presenting her defence. The grievor’s representative further argued that the grievor was not given a fair hearing by not being given the opportunity to appear before the person who made the decision to terminate her, Mr. Page. He pointed out that Mr. Page was not even called as a witness, which leads to speculation as to what grounds Mr. Page considered in reaching his decision to terminate Ms. Pajic.

89 The grievor’s representative argued that the difference in data did not necessarily mean that Ms. Pajic falsified it. He stressed that the differences could very well have been mistakes or errors made in good faith. In addition, according to the grievor’s representative, the employer’s case was based entirely on hearsay, i.e., what other persons said to Ms. Irving, and is therefore unreliable. In short, there is no clear and cogent evidence that Ms. Pajic deliberately falsified any information.

90 For those reasons, the grievor’s representative urged me to find that the discipline was void ab initio (from the beginning). He referred me to the following case law: Wm. Scott and Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Can. LRBR 1; United Steelworkers of America, Local 3257 v. Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Brown and Beatty, at para 3:4310, 3:5120, 7:2200, 7:2300 and 7:4422; Belleville General Hospital v. Service Employees International Union, Local 183 (1985), 18 L.A.C. (3d) 161; North York General Hospital v. Canadian Union of General Employees (1973), 5 L.A.C. (2d) 45; Simon Fraser University v. Association of University and College Employees, Local 2 (1990), 17 L.A.C. (4th) 129; Aerocide Dispensers Ltd. v. United Steelworkers of America (1965), 15 L.A.C. 416; Canadian Union of Public Employees, Local 1750 v. Ontario (unreported); Nova Scotia (Department of Justice) v. Nova Scotia Government and General Employees Union, 2004 NSSC 207; Girvin et al. v. Consumers’ Gas Co. (1973), 40 D.L.R. (3d) 509; Brink’s Canada v. Independent Canadian Transit Union, Local 1 (1995), 47 L.A.C. (4th) 342; and Morin v. Statistical Survey Operations, 2006 PSLRB 55.

91 As for his claim that the employer breached the collective agreement, the grievor’s representative argued that Burchill did not apply. Since the violation occurred at the adjudication hearing when the employer entered evidence that had not been provided to the grievor ahead of time, the breach could not have been raised in the original grievance.

92 The grievor’s representative concluded that, were I to rule that misconduct occurred, the penalty ought to be reduced from the termination to a sanction more in line with Ms. Pajic having made an error.

C. Employer’s reply

93 Counsel for the employer disagreed with the interpretation of the grievor’s representative of clause 21.04 of the collective agreement, which the employer allegedly breached. The collective agreement does not require the employer to provide an employee with the documentary evidence that will be used at adjudication but rather with the documents that were placed in the employee’s file that the employer wishes to use, such as performance appraisals, earlier disciplinary measures, and other matters in the grievor’s file.

94 Counsel for the employer argued that the employer never changed the grounds of discipline. She referred me to the letter of termination. The evidence focused on seven particular instances of falsifications. In her view, Ms. Pajic had every opportunity to present her case and to defend herself.

95 Counsel for the employer disagreed that the employer’s case was based entirely on hearsay. The events that Ms. Irving observed were not hearsay. In any event, counsel pointed out that hearsay evidence is admissible as long as it is reliable. She referred me to Basra.

IV. Reasons

96 The employer’s grounds for terminating the grievor are set out in several documents, namelya letter dated August 2, 2006 (Exhibit E-49), and a letter February 1, 2007 (fourth-level grievance reply) to the grievor. The first letter reads as follows:

August 2, 2006

Jodi Pajic

…

Dear Ms. Pajic:

As a result of an investigation carried out by the management team, Western Region and Northern Territories, Statistics Canada, it is my decision to terminate your employment for cause. This termination will be effective immediately, 2 August 2006.

During the investigation, it was determined that appropriate procedures were not followed in your conduct at work with collecting data in the recent Labour Force Survey, in that it is determined that you falsified data.

You were given an opportunity to explain your actions and were not able to do so in a satisfactory manner.

Any outstanding monies will be forwarded to your home address.

You must return all of the Statistics Canada material in your possession including your Identification Card immediately to the attention of Tara Petri-Duff, Statistics Canada, Winnipeg District Office, suite 200, 123 Main Street, Winnipeg, Manitoba R3C 4V9.

C. Jerry Page
Director
Western Region and Northern Territories

97 The February 1, 2007 letter states as follows:

February 1, 2007

Ms. Jodi Pajic

…

Re: Fourth level grievance

Dear Ms. Pajic,

This is in response to your grievance at the fourth level, regarding the termination of your employment.

I have reviewed all of the information concerning your situation, including the presentations and related documents provided by you and Annette Marquis, Special Advisor, Public Service Alliance of Canada National Component, on November 27, 2006; December 12, 2006 and January 22, 2007.

Termination of employment by local management was based on falsification of survey data. My investigation has shown substantial evidence of extensive falsification. A reputation for accurate information is critical to Statistics Canada’s success. Because the agency cannot closely supervise its field interviewers, a bond of trust must exist between the agency and its interviewers that they will perform their duties faithfully. That trust being breached in your case, termination of your employment is the only appropriate course of action.

Therefore, your grievance is denied.

Sincerely,

Wayne Smith
Assistant Chief Statistician
Communications and operations

c.c. Annette Marquis

98 Further to the conference call, and based on its investigation, the employer determined that it would terminate Ms. Pajic, effective August 2, 2006, for falsifying data in a recent LFS. The issue is whether the employer had just cause to impose discipline on the grievor and whether terminating her employment was an appropriate penalty in the circumstances.

99 The employer had the burden of proof. The standard of proof and the principles that govern assessing witnesses’ evidence were well articulated as follows in Faryna:

…

… In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…

…

100 More recently, the Supreme Court confirmed that only one standard of proof is required in civil cases. In F.H. v. McDougall, 2008 SCC 53, the Supreme Court noted the following:

…

[40] … in Canada … there is only one civil standard of proof at common law and that is proof on a balance of probabilities…

…

[46] Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency…

…

[49} … In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

…

101 The standard for civil matters is the same as that for grievance arbitration and adjudication hearings. That principle is recognized in Palmer and Snyder, Collective Agreement Arbitration in Canada, 4th Edition, at page 213. That standard needs to be applied to the following three questions:

1. Has the employer proven its allegations?
2. Did the grievor’s conduct warrant discipline?
3. Did the grievor’s conduct warrant termination?

102 I should state at the outset that this case is not based on an isolated incident or event. Rather, it involves several incidents of alleged falsification of data during the conduct of an LFS under the Statistics Act. It also involves an experienced field interviewer who, for years, received excellent performance reviews and who was well liked and appreciated by her colleagues and immediate superior.

103 This case largely rests on the importance to the employer of the integrity of data collected during surveys conducted under the Statistics Act. Four exhibits filed by the employer have special significance in that respect, Exhibits E-5 to E-8. Exhibits E-5, E-6 and E-7 are all documents signed by the grievor on January 6, 2003, before her first day of work. They all stress that the integrity and reliability of survey data is fundamental to the employer’s operations and reputation. The consequences of violating those signed documents, such as returning false data, is clear, and no field interviewer can claim that he or she did not know the governing rules and regulations. Not only are all field interviewers fully aware of the strict working conditions but the uncontradicted evidence also shows that the PSAC’s National Component was aware of them.

104 Exhibit E-8 is a copy of section 30 the Statistics Act, which makes it an offence for an employee to wilfully make any false declaration, statement or return in the performance of his or her duties. That section reads as follows:

30. Every person who, after taking the oath set out in subsection 6(1),

(a) deserts from his duty, or wilfully makes any false declaration, statement or return in the performance of his duties,

(b) in the pretended performance of his duties, obtains or seeks to obtain information that the person is not duly authorized to obtain, or

(c) contravenes subsection 17(1)

is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both.

A. Did the employer prove misconduct?

105 The details of the alleged falsifications are set out in Exhibit E-21 and cover seven cases. Ms. Irving testified extensively about them. I will now briefly review the evidence for each case.

1. Case 1 - Rothesay

106 The documentary evidence shows that the grievor entered as the demographic information that the residents were a male and female, aged 74 and 70 years, respectively. The employer’s investigation showed that the residents were a male (aged 33), a female (aged 45) and a son (aged 23), and that the residents had lived at that address for 6 years. It is clear that the grievor entered several instances of false data into her computer, including the incorrect names and numbers of the residents at that address and their incorrect ages.

2. Case 2 - Keenleyside

107 The demographic information entered into the grievor’s laptop and sent to Ottawa was for a single female, aged 31 years. In fact, the correct information, as introduced in evidence, is that the respondent at that address was a 59-year-old divorced woman, who has lived at that address since 2005. The respondent at that address confirmed during Ms. Irving’s verification that nobody from the LFS had ever talked to her before Ms. Irving interviewed her in July 2006.

3. Case 3 - Oakview

108 The demographic information entered into the grievor’s laptop and sent to Ottawa was for a widow aged 78 years. The verification revealed that the only residents at that address were a male, aged 48 years, and a female, aged 44 years.

109 The only response from the grievor when her superiors confronted her with the discrepancy was that she remembered this case, and she stated that the resident was reluctant to answer her questions. Therefore, she inserted the resident’s name as Jane Doe. She said, “Maybe this woman was somebody’s mother,” and then suggested that she might have interviewed a woman in another unit at that address. The grievor’s explanation was verified. The address was established as definitely being a single‑family dwelling.

110 It should be noted that field interviewers, when in doubt as to how to do something, have resources available at all times for guidance or assistance, to avoid unnecessary errors.

4. Case 4 - Walden Crescent

111 The demographic information that the grievor entered in her laptop and sent to Ottawa was that the residence was occupied only by a 78-year-old widow. The verified facts were that the resident was a 50-year-old woman living with her common-law husband. The resident did not initially provide any information about her common-law husband for fear of potential questioning by the Canada Revenue Agency.

5. Case 5 - Kimberley

112 The demographic information that the grievor entered in her laptop and sent to Ottawa was that there were 2 males at the address, aged 29 and 15 years. The verification established that only one 35-year-old male lived there.

113 The grievor’s response when questioned was that she remembered that the dwelling had side entrances and that she thought it might have contained four suites. The grievor stated that, at her first visit, someone named Pat was present. She thought that he was the building owner. At a second visit, the same Pat was there, but he was reluctant to do the survey and was “pretty miserable,” according to the grievor. On a later visit, the grievor met a man named Jim, who completed the survey.

114 The verification revealed that there were only two units, not four, at that address. I found the grievor’s explanation of that case confused.

6. Case 6 - Grassie Boulevard

115 The demographic information that the grievor entered in her laptop and sent to Ottawa in June 2006 for that residence was that it housed a single male, aged 31. Ms. Irving’s subsequent verification revealed 2 residents, a male, aged 35, and a female, aged 28, who have been living there for 18 months.

7. Case 7 - Kildare

116 The demographic information that the grievor entered in her laptop and sent to Ottawa in June 2006 for that residence was that it housed one 20-year-old female and one 19-year-old male. The verification revealed that the actual resident at that address was a single female and that she had been living there since January 2003.

117 The grievor’s explanation for the difference was as follows: “Well, I went every month and I left a notice of visit and every month I got a phone call back so I didn’t actually meet anybody. I couldn’t tell if they were lying to me because it’s not face to face.” Yet, in spite of her excellent computer skills, the grievor coded the address as an in-person interview, which was inaccurate.

118 All 7 cases were coded as “70,” meaning that the grievor completed them. However, no telephone numbers were recorded, and requests were made that each case return to her. Those facts were brought to her attention during the conference call. At that time, Ms. McCreary pointed out to the grievor that, since she coded the cases as 70 or completed, it constituted falsifying the data. Ms. McCreary pointed out to the grievor that Statistics Canada takes falsifications very seriously and that there is zero tolerance for it. She advised the grievor that, unless she wished to add something, in accordance with the Statistics Act, the employer’s policy was to consider termination, with the possibility of prosecution under that Act. She also informed the grievor that she could resign rather than being terminated. She had until August 1, 2006 to resign if she wished.

119 The grievor admitted that the notes taken during the conference call and introduced as Exhibit E-21 were accurate. She admitted that no one else did the seven cases on a “blitz” and admitted that no one else had used her laptop.

120 The evidence also demonstrated that the numerous violations enumerated in the seven cases were not the grievor’s only serious infractions and data falsifications. Ms. Irving’s testimony on Exhibits E-18 and E-19 indicate that many cases that the grievor was responsible for contained data that was improperly entered, that was false and that, consequently, violated of the grievor’s “Oath of Office” (Exhibit E-5), the “Interviewer Work Agreement” (Exhibit E-6) and the “Employee Declaration” (Exhibit E‑7). Finally, Ms. Irving noted in her LFS Observation Report that the grievor repeated “vacants” and “renovations” errors.In validating her observations, Ms. Irving stated that, of the 21 combined cases, it was confirmed that the grievor coded 17 incorrectly.

121 I find that, although the grievor and her representative challenged the grounds invoked by the employer, those grounds were not contradicted by any supporting evidence.

122 The employer’s two main witnesses, Mses. McCreary and Irving are long-service, experienced SSO employees who know and understand all aspects of field interviewers’ duties and responsibilities. They both presented direct and clear evidence without hesitation in examination-in-chief and in cross-examination. In my assessment, their evidence was without malice toward the grievor and was entirely reliable. In fact, none of the employer’s witnesses showed any animosity whatsoever toward the grievor. On the contrary, all the witnesses liked her as a friend and work colleague. Ms. Irving was the grievor’s immediate supervisor for her entire employment at the SSO and had only good appraisals and remarks for the grievor in her annual performance reviews and on other occasions.

123 In my assessment of the evidence, that unanimous appreciation continued until the events that led to the grievor’s termination. For example, when asked for her reaction to the numerous employer exhibits, Ms. McCreary stated that she was “shocked and appalled” because many of the grievor’s LFS data entries were incorrect, unreliable and false. When asked for her reaction to the results of the observations, findings of facts and verification of all relevant exhibits, Ms. Irving stated that she was “disappointed and shocked” that the person that she had trained “did so many things wrong.”

124 The grievor’s witnesses, Mses. Tokar and Henry, are also both long-term, experienced interviewers, and both delivered straightforward and credible evidence.

125 Everyone described the grievor as well organized with excellent computer skills, among other good qualities. However, I found that her testimony lacked consistency in several aspects. As an example, she could remember details about the weather from an LFS interview conducted several years ago. However, the correct evidence was that the weather on that day could not have prevented her from using her laptop instead of using a paper survey, as she claims.

126 Additionally, in spite of her excellent computer skills, the grievor stated on several occasions in her testimony that the errors she made “must have been because [she] hit the wrong computer button when [she] sent the data to Ottawa.”

127 It is rather difficult for me to accept that it was a mere coincidence that all seven cases failed to give a telephone number and that five of them had residents that, according to Ms. Pajic, were either “crazy or difficult to deal with.” As Ms. McCreary explained in her testimony, the consequences of not inserting a phone number for an address is that the designated interviewer for that household address will get the return call for the following month. This means that, if no telephone number is recorded, the survey process will be delayed because, until the complete details required at each household are completed by the field interviewer, the information on that address cannot be sent back to Ottawa. With such a delay, the second group of interviewers cannot perform their required follow-up telephone interview the next month to complete the survey. Ms. Irving’s evidence was that she had no difficulty obtaining all the required data for the persons residing at those addresses.

128 Therefore, I find that, on a balance of probabilities, the employer proved its allegations that Ms. Pajic entered false data when carrying out an LFS under the Statistics Act, without a reasonable explanation. All the employer’s witnesses, without exception, insisted on the absolute need for LFS data to be accurate, reliable, valid, and in compliance with the Statistics Act and the rules and regulations referred to in the evidence. I accept that the requirement that LFS data must be accurate and reliable is critical to the employer’s business and that that requirement constitutes a paramount duty and obligation for a field interviewer. The examination of the seven cases revealed a great number of anomalies and errors such as wrong ages, wrong counts of people or wrong marital statuses. Thus, the grievor’s conduct constitutes, on balance, negligence and a breach of trust. The employer was justified in disciplining her.

B. Questions raised by the grievor’s representative

129 Before turning to the question of whether the grievor’s termination was appropriate, I must address a number of points raised by the grievor’s representative at different stages of the hearing and in final argument.

130 First, the grievor’s representative argued that, since no evidence showed that Mr. Page was vested with the delegated authority to terminate the grievor under the employer’s organizational structure, the termination decision cannot stand. In addition, since Mr. Page did not testify, the grievor’s representative added that it is not possible to determine the facts on which he based his decision, which is unfair to the grievor and prevents her from presenting a full defence.

131 I dismiss that argument for the following reasons. My duty as an adjudicator is to determine, based on the evidence presented at the hearing, whether the employer had just cause to terminate the grievor’s employment. In carrying out that duty, I have no authority to rule on the employer’s internal procedures with respect to its authority to take disciplinary action.

132 I find support for that proposition in Mohan, in which the adjudicator wrote as follows at paragraph 93:

93 I agree that the grievor can raise the issue of delegated authority at the hearing … However, the argument is ultimately not successful, as it has long-been [sic] held in the Board’s jurisprudence that the adjudication hearing is a de novo hearing . . . to determine whether the proper process was followed (see Tipple (supra)). Also, the employer’s directives do not limit the jurisdiction of an adjudicator and an adjudicator is not required to rule on the validity of the discipline, only on whether the discipline was unjustified under the circumstances…

[Emphasis added]

133  In any event, Mr. Page’s decision was upheld at the final level of the grievance procedure by the employer’s highest authority, namely Mr. Smith, acting as the deputy head’s delegate. Furthermore, the evidence clearly showed that the grievor’s supervisors coordinated their findings in consultation with Mr. Page on several occasions before he signed the termination letter on August 2, 2006 (Exhibit E-49). The evidence supporting the employer’s decision was presented at the hearing, which was a hearing de novo (see Tipple). Ms. Pajic had the opportunity to respond by presenting a full defence.

134 Second, the grievor’s representative argued that the employer altered the grounds on which it imposed discipline on her by not limiting the evidence to solely the seven cases that I had ruled were the central body of evidence about the alleged falsification of data, which denied her the right to a fair process and violated the principles of natural justice.

135 The letter of termination (Exhibit E-49) clearly states the following:

…

… [I]t was determined that appropriate procedures were not followed in your conduct at work with collecting data in the recent Labour Force survey, in that it is determined that you falsified data.

You were given an opportunity to explain your actions and were not able to do so in a satisfactory manner.

…

136 This letter is neither vague nor imprecise as to the reasons for the termination of the grievor’s employment.

137 My ruling on this issue was that I would consider only relevant evidence on the grievor’s alleged falsification of data during an LFS. In my view, the evidence presented at the hearing did not breach those parameters.

138 This issue of altered grounds of discipline has been canvassed extensively by authors, in voluminous jurisprudence, and notably by Brown and Beatty, at para 7:2200. In 1965, the arbitrator in Aerocide Dispensers Ltd. first advanced the principle that employers should be held “… fairly strictly to the grounds upon which [they have] chosen to act …” Following Chief Justice Laskin’slead, “… arbitrators have refused to permit employers to introduce evidence of events that are not closely related to those initially communicated to the employee …” (see Saskatchewan Association of Health Organizations v. Canadian Union of Public Employees, Local 3967 (2011), 203 L.A.C. (4th) 1). In Morin, the adjudicator refused to permit the employer to turn the incident that precipitated the case into a different offence.

139 It is important to emphasize that the evidence in this case was communicated to Ms. Pajic at the conference call (Exhibit E-21). At that time, she also obtained additional information about the data falsification from the LFS Observation Report (Exhibit E-48), which dealt with falsification of dataduring the same general period.

140 The grounds are not altered if the evidence relates to the same grounds on which the employer initially relied. In this case, the grounds were not altered because the evidence was always the same, namely, the falsification of data. There is no question that Ms. Pajic knew which case she had to defend against. Therefore, I dismiss that argument.

141 Third, the grievor’s representative raised an objection that the employer violated clause 21.04 of the collective agreement because it did not provide the grievor ahead of time all the documentation presented in support of its case at the hearing. Clause 21.04 reads as follows:

The Employer agrees not to introduce as evidence in a hearing relating to disciplinary action any document from the file of an employee the content of which the employee was not aware of at the time of filing or within a reasonable period thereafter.

142 Counsel for the employer objected to that argument on the basis that it constituted an attempt to change the nature of the original grievance. I agree with the employer that that challenge in the “mid-stream” of the hearing changed the nature of the original grievance, which referred only to the disciplinary measure, did not refer to an alleged breach of the collective agreement and was referred to adjudication under paragraph 209(1)(b) of the Act. As I pointed out earlier in this decision, that is consistent with the bargaining agent’s submitted Form 21.

143 The principle that a grievor cannot change the nature of his or her grievance once it reaches the adjudication stage is found in Burchill. That judgment has been followed consistently by Public Service Labour Relations Board adjudicators over the years. Shneidman also stands for that principle. In Lee, the adjudicator wrote as follows:

…

[33] The case law has established, nonetheless, that there are very real limits to that discretion. As in Shneidman, the courts may well find that an adjudicator has erred if he or she has given too broad an interpretation to a grievance for purposes of determining the application of Burchill. Certainly, where the wording of the original grievance and the evidence about how the grievor argued the case during the grievance procedure leaves little doubt that a claim subsequently made in a reference to adjudication was never raised earlier, the discretion disappears. The adjudicator’s duty is to apply section 209 of the Act faithfully and in keeping with the direction given by the courts in Burchill.

…

144 In addition, I do not agree with the interpretation of the grievor’s representative of clause 21.04 of the collective agreement. In my view, it refers solely to documents that already exist in an employee’s disciplinary file, such as disciplinary letters or performance reviews. That clause does not oblige the employer to disclose all its elements of proof to the grievor in advance of a hearing. As a point of interest, it seems to me that the bargaining agent’s representative was seeking the language that currently exists in collective agreements with the Professional Institute of the Public Service of Canada (for example, clause 37.04 of the Health Services Group collective agreement, referred to in Baptiste, 2008 PSLRB 105). For those reasons, I reject the argument that the collective agreement was violated.

145 Fourth, the grievor’s representative argued that Ms. Pajic’s rights to fairness and natural justice were breached when the employer allegedly ordered the destruction of evidence, which was brought to light by the testimonies of Ms. Henry and Mr. Smith. The grievor’srepresentative suggested that the grievor might have been deprived access to evidence that could have exonerated her.

146 The uncontradicted evidence is the following:

• All the grievor’s data entries into her laptop were captured in Exhibits E-34 and E-34A, and they never varied, were never destroyed and were produced to the grievor.
• Once the grievor, as a field interviewer, presses the “send” button on her laptop, all inputted data is immediately sent to and recorded in Ottawa.
• The seven cases were produced and were included in Exhibit E-24, introduced in evidence by the employer.
• The employer did not destroy or erase any evidence.
• Ms. Irving was the grievor’s senior interviewer, so she could access and view on her computer the grievor’s entered data.
• Ms. Irving’s validation of the anomalies found in the grievor’s LFS assignment were part of the discussions during the conference call (Exhibit E-21); all related documents and exhibits were produced and given to the grievor and her representative.
• Other documents alleging that the grievor falsified data were tabled and filed as Exhibits E-18, E-19 and E-48; all were provided to the grievor and her representative.

147 In short, no evidence before me suggests that any evidence was destroyed to the detriment of Ms. Pajic. As for the alleged shredding of evidence in Mr. Smith’s office during the final-level grievance hearing, his uncontradicted evidence was that he asked the bargaining agent representatives, including Ms. Marquis, Ms. Henry and the grievor to return all confidential respondent information.

148 In conclusion, the uncontradicted evidence is that, in default of the return of the information, as required by Mr. Smith, an agreement was made with the president of the PSAC’s National Component that it would destroy the confidential information in its possession. The bargaining agent certified that the information was destroyed.

149 I dismiss the argument that evidence was destroyed and that Ms. Pajic was prejudiced in her defence. She had every opportunity to answer the employer’s allegations against her at adjudication, which was a hearing de novo,as recognized by the Federal Court of Appeal in Tipple.

150 Fifth, the grievor’s representative argued that much of the employer’s case was based on hearsay evidence, namely, everything that Ms. Irving reported and testified about was told to her. He objected that Ms. Pajic’s termination could have been based solely on hearsay evidence. He consequently urged me to completely disregard that hearsay evidence.

151 I will now comment on Ms. Irving’s so-called hearsay evidence. The employer’s obligation is to prove on a balance of probabilities that Ms. Pajic did certain things wrong. The employer sought to establish those facts mainly with Ms. Irving’s testimony and with related documentary evidence. What Ms. Irving verifies, observes and eventually reports is not hearsay. When Ms. Irving testified as to what she observed, that she spoke to a male or a female, or that she observed that the furnishings inside a residence looked the same in different months, it was not hearsay. For instance, the grievor said “X” several times, but the documentary evidence revealed “Y”. That is not hearsay. In other instances, the grievor admitted to what she had done and said.

152 As part of her senior interviewer responsibilities, Ms. Irving was responsible for verifying and observing her field interviewers. Executing those responsibilities by speaking to household residents and others and then reporting on her findings is not hearsay, in my view. In addition, I point out that the residential data in two of the seven cases investigated by Ms. Irving (Oakview and Grassie) were corroborated by land titles, which are business records that the adjudicator is entitled to rely upon as an exception to the hearsay rule. Thus, Ms. Irving’s findings were corroborated in those two cases.

153 Paragraph 226(1)(d) of the Act reads as follows:

226. (1) An adjudicator may, in relation to any matter referred to adjudication,

…

(d) accept any evidence, whether admissible in a court of law or not …

154 As the Federal Court of Appeal stated in Basra, the real issue is whether the evidence, everything considered, is reliable. In paragraph 21, the Court expressed the following:

[21] In characterizing the use of hearsay evidence to establish a material fact as an adjudicative error, the adjudicator was articulating a principle which is at odds with paragraph 226(1)(d) of the PSLRA which provides that an adjudicator may accept any evidence, whether admissible in a court of law or not. The adjudicator is not bound to accept hearsay evidence but he cannot reject it out of hand simply because it is hearsay. The issue is whether it is reliable…

155 In this case, for the reasons set out earlier in this decision, I have no reason to question Ms. Irving’s credibility. Considering all the circumstances, I accept her evidence as reliable. Therefore, I reject the argument of the grievor’s representative that I should disregard Ms. Irving’s evidence as hearsay.

C. Was termination an appropriate penalty in the circumstances?

156 SSO field interviewers are aware of all their conditions of employment and of the severe consequences of violating them. All interviewers not only sign several declarations, including Exhibits E-5, E-6 and E-7, but they are also well aware of the provisions of the Statistics Act (section 30 in particular; Exhibit E-8). They are periodically reminded of those obligations and responsibilities and of the consequences of violating them in regular training sessions and in monthly communications to all CAPI employees. The bottom line is that no field interviewer can claim that he or she is surprised by the severe consequences if a falsifying data violation is discovered.

157 The foundation of Statistics Canada and its success and reputation is the production and output of accurate, reliable and valid data. If its employees do not respect those values, serious consequences can result, including possible immediate termination, followed by possible prosecution, fines and imprisonment, if an employee is convicted of an alleged offence.

158 The grievor signed Exhibits E-5, E-6 and E-7 on her first day of employment on January 6, 2003. She knew or should have known that, by entering false data, she was jeopardizing her employment. She clearly did so on more than one occasion. Although I am left to speculate about her motivation for entering false data, I find that, regretfully, she had no reasonable excuse or explanation to offer.

159 I conclude that, by her actions, the grievor has broken the necessary bond of trust between her and the employer. As Ms. McCreary and Ms. Irving stated during their testimonies, the field interviewer job is largely based on the honour system, and the employer must have absolute confidence in employees carrying out the related responsibilities. During the hearing, the grievor expressed that she was no longer seeking reinstatement because she no longer trusted the employer. In the final analysis, this case displays a complete breakdown of the employment relationship.

160 The grievor’s representative urged me to consider a number of mitigating factors when assessing whether termination was an appropriate disciplinary response to her conduct, particularly that the termination caused her special economic hardship. I considered the following factors when reaching my decision about Ms. Pajic’s termination:

1. On the last day of the hearing on March 16, 2012, there was no evidence that the grievor had been gainfully employed since her termination on August 2, 2006.
2. The evidence is that the grievor, on her termination, was a working mom in Winnipeg with three young children at school, aged 8, 7 and 6.
3. Before the incidents in this case, the grievor had more than three full years of excellent performance reviews as an SSO field interviewer and had a discipline-free record.
4. Before giving her the notice of termination, the employer offered the grievor the option to resign, to avoid having a termination on her record. She refused because she said that she was not guilty and that she did not wilfully falsify data.
5. During the hearing day of October 5, 2011, I was apprised that the grievor had also been charged with an offence arising out of the same incidents that caused the employer to terminate her employment. Although a criminal prosecution undoubtedly adds to the severity of the consequences of her actions, that same criminal prosecution can presumably and undoubtedly increase any economic hardship that the grievor may have suffered. I cannot determine what additional economic hardship can or will be added to the grievor as a result of the criminal prosecution, as no specific evidence was presented during the hearing of this case.

161 I have weighed those factors against the serious and repetitive nature of the grievor’s actions. On balance, although it can be said that the grievor suffered a special economic hardship following the termination of her employment and again directly as a result of the criminal prosecution, such economic hardship is in my view, overshadowed by the overwhelming evidence and the seriousness of repeated falsifications of data presented at the hearing. Under the circumstances, I find that termination was the appropriate disciplinary response from the employer to that misconduct. Accordingly, the grievance is dismissed.

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

V. Order

163 The grievance is dismissed.

June 22, 2012.

Roger Beaulieu,
adjudicator