FPSLREB Decisions

Heard at Ottawa, Ontario,
April 7 to 10 and 22 to 25 and September 9 to 12, 2014.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        Angelo Mangatal (“the grievor”) was employed by Natural Resources Canada (“NRCan” or “The respondent”) as a senior industry officer at the commerce officer (“CO”) 02 group and level in Ottawa, Ontario.

2        On March 8, 2011, the grievor received a one-day suspension for misconduct arising from a fact-finding report dated February 16, 2011 (“the 2011 Report”). On March 18, 2011, he filed a grievance (566-02-07742) against that discipline, requesting as corrective action that

1. the suspension letter be rescinded in its entirety;

2. the suspension letter be removed from his personnel file and destroyed;

3. he be reinstated without any loss of pay and benefits;

4. he be made whole; and

5. he receive any other relief necessary to remedy the situation.

3        On April 20, 2012, the grievor was terminated from his employment for misconduct arising from travel expenses and claims he made during the course of his employment. He filed several grievances that arose directly or indirectly out of that action.

4        On April 25, 2012, the grievor filed a grievance against the termination of his employment and requested as corrective action that he be reinstated into his position with all pay, seniority, and privileges and that he be made whole using any and all remedies necessary (grievance 566-02-07741).

5        On July 12, 2012, the grievor filed a grievance against the employer recovering monies from his performance pay for the fiscal year of 2009-2010 as recovery for the alleged travel expenses he owed the employer. As corrective action, the grievor requested that he be made whole by using any remedy available, including the reimbursement of the monies and of all expenses and financial hardship caused by the denial of, and delay in payment of, his performance pay and the removal of all documents from his file that related to the travel audit that led to the termination of his employment (grievance 566-02-07744).

6        On July 13, 2012, the grievor filed a second grievance relating to his performance pay, alleging inappropriate actions of employer representatives in their misapplication of his performance pay under the Career Assignment Program (CAP). As corrective action, the grievor requested that he be made whole by using any remedy available, including the reimbursement of the monies and of all expenses and financial hardship caused by the denial of and delay in payment of his performance pay, and deployment at the level achieved in the CAP (PL-06) at the appropriate salary level (grievance 566-02-07745).

7        All the grievor’s grievances were denied and were referred to adjudication at the Public Service Labour Relations Board (PSLRB) under either s. 209(1)(a) or (b) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”).

8        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Act as that Act read immediately before that day.

9        After the hearing had commenced, the grievor informed the Board on or about September 11, 2014, that he was withdrawing his grievance in file 566-02-07745. The file was therefore closed. Consequently, it is not necessary for me to render a decision on that grievance.

II. Summary of the evidence

10        The employer called 12 witnesses, and the grievor testified on his own behalf. The parties agreed between themselves that the grievor would present his evidence first, followed by those witnesses called by the employer.

Background

11        The grievor began his employment with the federal public service in 1999 with the Canada Revenue Agency. In 2002, he moved to NRCan. In September 2005, he joined and subsequently completed the CAP at the Canada School of Public Service. In 2007, the grievor moved to the Industrial Programs Division (IPD) of NRCan, where he worked in the Office of Energy Efficiency (OEE). He remained in that division until the termination of his employment in 2012. The grievor received a number of certificates and awards (Exhibit G-2, tab 6) during the course of his employment in the public service. While part of the CAP, the grievor was paid under the leadership program (PL) group. When he left the CAP to join the OEE, his classification group and level were PL-06.

12        The grievor was subject to collective agreements entered into between the Treasury Board and the Professional Institute of the Public Service of Canada (PIPSC) for all employees in the Audit, Commerce, and Purchasing Group. The collective agreement relevant to these proceedings was signed on June 25, 2009, and expired on June 21, 2011 (“the collective agreement”).

13        During the time frame of 2007 to 2012, and relevant to matters at issue in this hearing, the grievor reported directly to Philip Jago, Eric Gingras, or Madeline McBride, all of whom would then have reported to Michael Burke, the director of the OEE. At all material times, Mr. Burke in turn reported to Carol Buckley, the director general of the IPD.

14        The OEE ran a secretariat on behalf of industry and delivered programs and incentives to facilitate energy efficiency in the Canadian industrial sector. Involvement in the programs by industry was voluntary. The grievor was responsible for liaising, networking, and developing program awareness in western Canada, primarily in Alberta and Saskatchewan in the oil and gas sector.

15        The grievor’s duties and responsibilities required him to frequently travel away from his office, which was located in Ottawa, to western Canada, predominantly to Alberta and Saskatchewan. While at all material times the grievor lived and worked in Ottawa, he had grown up and had gone to school in Saskatchewan and had family who lived there. He also owned a residence in Calgary, Alberta, where the evidence disclosed that at times relevant to this proceeding, he also maintained a motor vehicle. I was not provided the address of the grievor’s Calgary residence.

16        Coincidental with his position at the OEE, the grievor was also on the board of directors of, and held several officer positions with, the National Council of Visible Minorities (NCVM). He also sat on the Employment Equity Committee and was an active member with his bargaining agent, the PIPSC, holding different positions at different times within that organization.

Board File No. 566-02-7742 - one-day suspension

17        On Wednesday November 24, 2010, at 11:01 a.m., the grievor received an email invitation to a meeting scheduled for that same day at 4:00 p.m. (“the November 24 meeting”). The subject line was “Occupational Health and Safety (OHS) Issue”, and it was sent to him by Naki Theocharides, the manager for OHS at NRCan. The email stated as follows:

Good day Angelo,

There seems to be an OHS issue that we need to discuss. Your input is required. Appreciate your attendance at 4:00 PM in Room 2D1.

Thank you.

Naki

18        At the time the November 24, 2010, email was sent, the grievor was a PIPSC steward. His immediate supervisor was Ms. McBride who was, at that time, the deputy director of the OEE. She reported to Mr. Burke.

19        The grievor testified that when he got the email, he called Mr. Theocharides to see what it was about. Mr. Theocharides told him that he could not discuss it over the phone, save for telling him that it was an OHS issue.

20        The grievor testified that he arrived at the meeting room early and that Marcel Clement, who was with the Safety and Security Branch of NRCan, was there. He stated that the other meeting participants, Ms. Buckley, Mr. Theocharides, and Nathalie Leblanc, the manager of labour relations (LR), arrived after him.

21        In addition to the grievor, Ms. Buckley, Ms. Leblanc, and Mr. Clement testified before me and spoke to what happened at the November 24 meeting.

22        The grievor stated that when he asked what the meeting was about, he was told that it was about violence in the workplace. He stated that he then asked for a union representative and that that request was denied. He stated that he was told that it was only a fact-finding meeting. A second request for a union representative was denied. The grievor stated that since he was not permitted a union representative, he was going to leave the meeting but that he was ordered to remain by Ms. Buckley.

23        The grievor submitted a document from the Public Service Commission (PSC) under the title of “Recourse: Fact-Finding Meetings” (Exhibit G-2, tab 24). He stated that the right to union representation is set out in that document. The relevant portion states as follows:

…

Introduction

Afact-finding meeting may be held during the course of an investigation carried out by the Recourse Branch of the Public Service Commission. Following are guidelines that describe the process the Recourse Branch normally follows during a fact-finding meeting. They also set out what is generally expected of the parties, that is, the complainant(s), and the department or agency (the respondent) involved in the complaint.

What is a fact-finding meeting?

The purpose of the fact-finding meeting is to gather the facts pertinent to the allegations. All parties concerned have the opportunity to be heard, to allow them to explain the actions concerning the complaint.

Persons normally attending the meeting are the complainant(s), the departmental representative and witnesses, if any. All parties to the complaint can be accompanied by a union official, a lawyer, or other person of their choice. Any associated costs are the responsibility of the party. …

24        The grievor testified that he was advised that there was a complaint about his behaviour that was serious and that criminal charges could be laid. He stated that he was informed that the Royal Canadian Mounted Police (RCMP) was going to be called in to investigate.

25        I was not provided with any evidence that the RCMP conducted any sort of investigation or issued any form of report or that any criminal charges were ever laid.

26        The grievor stated that the November 24 meeting was about 45 minutes long and that he was told that a number of general allegations had been made that people were afraid of him. He stated that no specifics were provided, although he was led to believe that 12 different people had made allegations about him, despite the fact that he only worked with 6; the facts and behaviours dated back years; and everyone on his floor was afraid to work with him.

27        Sometime after the meeting, the grievor created a document entitled “Draft Meeting Minutes of Health and Safety Concerns November 24, 2010” (the “Mangatal notes”), into which he stated that he cut and pasted parts of other documents. The relevant portions of the Mangatal notes are as follows:

…

We all sat down and I asked what this was about. I was promptly informed that there was a complaint from management and staff that due to my behaviour said management and staff were concerned for their personal safety.

I asked why the meeting participant’s names were not on the meeting request and provided a hardcopy with only Mr. Theocharides name and the note that: “There seems to be an OHS issue that we need to discuss. Your input is required. Appreciate your attendance at 4:00 PM in Room 2D1.”

Natalie Leblanc indicated that the meeting participant’s names were on the request.

Angelo Mangatal: I provided her with my hardcopy indicating that their names were not on the list and that this approach to me is without cause and against NRCan policy. I also indicated that it was illegal to approach me this way without union representation.

Natalie Leblanc: stated that management was under no obligation to provide such notification and not required to inform the union.

Angelo Mangatal: I flatly stated that she was referencing the wrong book (policies) and that I did not have to participate without union representation.

Mr. Clement: led the questioning stating that they had conducted an investigation and that twelve of my colleagues and managers (?) have expressed fear of coming to work because of my behavior and that I could be criminally charged.

Angelo Mangatal: I immediately invited Mr. Clement to advise the complainants to go ahead and file such charges if it is warranted and to remove me from the property immediately. I got up to leave and was loudly advised by Carol Buckley DG OEE to sit down.

Mr. Clement: Your behaviour has gotten progressively worse at meetings can you explain why?

Angelo Mangatal: I only work with six people where would you get twelve of my colleagues to interview or complain … and I haven’t been to a divisional meeting in over a year and a half…

Mr. Clement: this goes back several years…

Angelo Mangatal: then it’s not relevant to this discussion…I got up to leave

Carol Buckley: Angelo as your DG I advise you to sit down and hear what has to be said.

Angelo Mangatal: I sat down despite my anger at the situation and obvious attempt to intimidate me due to my role as PIPSC steward and Branch President.

Natalie Leblanc: asked why my behavior has been so aggressive razing my voice, using gestures and choice of words were so confrontational? Mr. Theocharides and Mr. Clement joined in with Natalie to fire off statements: do you think that this is professional behaviour to talk to your colleagues this way? Why do you try to intimidate your people (colleagues and managers) by storming down hallways and throwing your weight around? I know lots of big guys and they don’t act that way.

Angelo Mangatal: I responded that I know of one ADM (Geoff Munroe) who speaks loudly and has a large presence and no one feels intimidated by him? In fact my behavior is a result of what is continuing to take place in my work unit and OEE - the situation has gotten progressively worse in my work unit with wrongdoing to the point of criminality including fraud, conflict of interest. Financial malfeasance and staffing irregularities.

Natalie Leblanc: indicated that there were mechanisms to address those issues... Mr. Theocharides and Mr. Clement joined in with Natalie to fire off statements: do you think that you are the only one able to judge these issues? Do you think that this can excuse your behaviour? Etc.

Angelo Mangatal: II responded yes ...as I have a greater combination of education and experience and necessary training from the DM Genome committee on Values and ethics – on the job application of financial and legal issues while at CCRA to determine fraud and misappropriation of funds, values and ethics training from TBS and CAP.

Carol Buckley: interjected that she was only aware recently of alleged fraud and Col ...she asked why my behavior - she referred to - characterized my input at the forums as outbursts at Management meetings (Middle Managers Forums) alleging wrongdoing of management...

Angelo Mangatal: I responded that my concerns are documented and provable and that her behavior as DG this past summer (2010) is also suspect as she repeatedly harassed me to meet with her on the follow-up to the Sartorial LMCC where these issues were brought up. She even raised her voice to me and left several aggressive emails and voicemails despite my advising her that I preferred not to talk to her as I saw it as a conflict of interest because I work in her division and there was a fear of backlash from the employees who brought forth their issues and that my Chief Shop Steward Roy Prokopuk would talk to her...

Carol Buckley: interjected that she only did that because Roy was continually unavailable and that I am welcome to file a harassment complaint against her if I want to...

Angelo Mangatal: I responded that at the time I could understand her frustration and finally accepted her guarantee that employees who have brought forth their issues would not receive any backlash – however, the guarantee was useless as employees received a backlash almost immediately after the issues were raised with responsible managers... including managers asking employees not to mention the work that they are doing (desk audit) and asked why didn’t they approach the Director? Which they had previously done (about career progression, denial of appointments, denial of opportunities, disparity in support for training, etc.).

Carol Buckley: quipped that there weren’t that many issues anyway...

Mr. Clement joined in with Carol to state that: do you think that you have the right to yell, make aggressive gestures and use aggressive words with colleagues...and that I could be criminally charged ...and that they have interviewed 12 of my colleagues and that I was not to ask them about the interviews and that they are here to day to hear my side of the story...he told me that I had better read the workplace bullying policy (he repeated this three times)...

Angelo Mangatal: I responded that I speak English and that three times I indicated that I have read it but will re read it again... I asked Mr. Clement if he understood English as I repeated my answer to him already – three times...

Mr. Clement said that he just wanted to be sure I understood what he was saying...

Angelo Mangatal: I responded to Mr. Clement that if he recalled I suggested he should read the values and ethics policies and that if his investigation has merit – show it to me – written allegations and proof, if not ...never approach me this way again... I also mentioned that he tried this tactic with Giselle Seck (former PE 5 employee (34 yrs service) at NRCan in HR) a couple of years ago – reviewing her emails for two years (over three months of his time) and presenting 81 pages of legal copy with questions supported by eight 5” D ring binders...and finding nothing...if you find nothing say so and stop manipulating the situation to please management as their pet...

Mr. Clement interjected to correct me that it was ten binders...

Angelo Mangatal: I walked over to Mr. Clement and stood over his table to ask: do you think that this a joke? I will not allow him to do what he did to Gisele to me...I repeated that as a FPS he is obligated by the values and ethics to provide the truth – if there is nothing there say so...I asked if I was intimidating him by standing over him and raising my voice ...

Mr. Clement responded “not in the least”...

Angelo Mangatal: I responded “and neither is anyone else...” (Intimidated by me)

Mr. Clement asked if I thought that I was the only one who knows what values and ethics are?

Angelo Mangatal: I responded to the group that I have had enough and that I had another meeting to attend....

Carol Buckley: stated that there is no more important meeting than this one...

Angelo Mangatal: I walked over to her table and stated: “Carol as my DG I am telling you that you have a lot to learn about human behavior and that I have neither the time nor the inclination to teach you something you should already know at your level..” with that I asked “are we done now?” and left the room.

Other exchanges during the meeting:

Carol Buckley: I sometimes have to hear things a few times before I can understand them...

Angelo Mangatal: I realized that some time ago as you don’t seem to comprehend what I am telling you....

Mr. Theocharides This is serious...

Natalie Leblanc: Do you think its right what you do...?

Carol Buckley: Why do you not attend meetings and refuse to fill out travel requests...everyone else have to ...

Angelo Mangatal: I do not attend meetings where Managers don’t keep minutes or make statements about their intent to circumvent staffing values or collective agreement provisions ...despite my warnings and re affirmation that I have a dual role as steward and officer...If you check you will see that my travel is always denied and even when I volunteer to help out to present on behalf of colleagues I am scrutinized for overtime and details such as when I am leaving etc. whereas my colleagues were allowed two people on the same travel and more than a day’s overtime for the same trip...almost five times the costs – there are lots more examples...however, I do not subject myself to such petty and malicious behaviour from management...

Conclusion

Given the policies on how to conduct an investigation, anti-harassment, collective agreement provisions, TBS guidelines and common sense the entire meeting should be erased and any conclusions drawn from the exchanges considered as outside the proper investigation process.

…

[Sic throughout]

28        The grievor testified that after the November 24 meeting ended, he called his PIPSC steward, Roy Prokopuk, who wrote to Ms. Buckley and inquired as to why the grievor was denied union representation. The response from Ms. Buckley was that the grievor was not entitled to union representation as it was merely a fact-finding meeting dealing with OHS issues arising from the NRCan “Directive on Prevention of Violence in the Workplace” (“the NRCan Prevention of Violence Directive”).

29        The grievor did not report for work on the days following the November 24 meeting and testified that after being told that everyone on his floor was afraid of him, he chose to work from home. When he was asked about his whereabouts by his immediate supervisor, Ms. McBride, he responded on November 29, 2010, by email, as follows:

…

On November 24, 2010 at 4:00 PM I was advised by the Manager (DOHS) of a serious Departmental Occupational Health & Safety issue revolving around the effects of my presence in the workplace specific to the employees and managers on the 12^th Floor (twelve of whom have expressed concern).

My absence from the workplace is to address this issue and as instructed: to review all departmental policies on harassment in the workplace to ensure my understanding and full compliance of the policies, including civil liabilities and potential criminal charges.

…

I have been further directed by NRCan Management not to discuss the issue or engage in discussions with colleagues and managers on the 12^th floor. As a consequence, I am minimizing my contact with people on the 12^th floor until the fact-finding exercise currently being conducted is completed and further formal instructions on what I am required to do have been provided.

…

[Emphasis added]

30        The NRCan Prevention of Violence Directive defines the following terms and specifies the following notification requirements and roles:

Bullying:

This includes the deliberate or habitual intimidation, cruelty or persecution towards those who are weaker.

Harassment:

Harassment is any improper conduct by an individual that is directed at and offensive to another person or persons in the work place, and that the individual knew or ought reasonably to have known, would cause offence or harm.

Harassment can escalate to work place violence if not properly mitigated. Please refer to the NRCan Prevention and Resolution of Harassment in the Work Place Policy for further details.

Physical Abuse:

Includes, but is not limited to, striking, shoving, pushing, kicking or unlawfully restraining the victim, or inciting an attack by another person or by an animal.

Teasing:

The act of harassing someone playfully or maliciously (especially by ridicule); provoking someone with persistent annoyances or through playful vexation.

Threatening Behaviour:

Includes, but is not limited to, activity that is intended to intimidate or incite fear, such as shaking fists, destroying property, use of props or images intended to intimidate or alarm, or throwing objects.

Verbal or Written Threats:

Include, but are not limited to, any expression of intent to inflict harm, such as:

a) Direct threats - clear and explicit communication which distinctly indicates that the potential offender intends to do harm, e.g. “I am going to make you pay for what you did to me.”

b) Conditional threats - involves a condition, e.g. “If you don’t get off my back you will regret it.”

c) Veiled threats - usually involves body language or behaviour that leaves little doubt in the mind of the victim that the perpetrator intends to harm, e.g. “Do you think anyone would care if someone beat up the boss?”

Work Place Violence:

Includes any verbal, written or physical threat or act of aggression that causes, or is likely to cause, injury or emotional trauma to another person in the work place or as a result of his or her employment. Work place violence is not limited to incidents which occur in the work place. Work-related violence can also occur at off-site business-related functions, such as trade shows, at client sites, or even an employee’s home. For example, an employee who receives a threatening telephone call from a client or colleague at his or her home is a victim of work place violence.

Work place violence includes any act or behaviour, as well as all incidents in which a worker is assaulted, abused or threatened in circumstances pertaining to his or her job, or while at work, which can lead to both mental or physical injury, disease or death. Violence can range from conscious, premeditated and rational behaviour, to verbal abuse, physical threats or assaults. The aggressor may be anyone, including the employer, a co-worker, a member of the public or a family member.

5.0 MANDATORY REQUIREMENTS

5.1 Notification

…

Employees must immediately report any incidents of work place violence which they observe or are informed about to their immediate supervisor/manager or Sector or Regional Security Coordinator, who will take immediate action to verify the information, make an initial assessment, document the incident and ensure that an appropriate response is initiated. All reports will be investigated and information will be protected in accordance with the requirements of the Policy on Government Security.

…

6.0     ROLES AND RESPONSIBILITIES

…

6.3     Employees shall:

…

d) make complete notes as soon as possible after the incident:

…

[Sic throughout]

[Emphasis added]

31        The Values and Ethics Code for the Public Service (“the V & E Code”) that existed in 2010 and that applied to all public servants working in departments, agencies, and other public institutions listed in Part I, Schedule I, of the Public Service Staff Relations Act (R.S.C. 1985, c. P-35), stated at “Chapter 1: Statement of Public Service Values and Ethics”, under the heading “Public Service Values” and the subheading “People Values” that public servants are to demonstrate “... respect, fairness and courtesy in their dealings with both citizens and fellow public servants.”

32        The grievor admitted in cross-examination that he was familiar with the V & E Code and had agreed to abide by it. In re-examination, the grievor was asked by his representative what the V & E Code meant to him, and he responded by stating it is the bible to live by. He stated that as a union representative and a member of the Employment Equity Committee, he had provided comments on the V & E Code.

33        On December 24, 2010, Mr. Prokopuk and Ms. Leblanc engaged in an email exchange, copying Mr. Theocharides, which began with a request by Mr. Prokopuk of Ms. Leblanc to provide to him and the grievor a copy of the written complaint as per the NRCan “Harassment Policy”. Ms. Leblanc advised Mr. Prokopuk that the complaint was not filed as per the NRCan Harassment Policy and went on to state that the allegation was that the grievor had“acted in an intimidating and/or bullying fashion in his interactions with peers and his managers.” Mr. Prokopuk wrote back to Ms. Leblanc, reiterating his request for a copy of the documented complaint, which he stated must have precipitated the undertaking of the investigation. Ms. Leblanc replied that complaints come in several forms and that management “was informed” that the situation fell under the NRCan Prevention of Violence Directive and that as such, “action was taken.” Mr. Prokopuk stated that LR’s lack of transparency worried him, given the neglect by management to follow its own procedures. The last email sent by Mr. Prokopuk was responded to by Mr. Theocharides, who stated that the employer did not make any accusations against the grievor during the “fact-finding” process and that it merely gave the grievor an opportunity to respond to the serious allegations.

34        In October 2010, Mr. Burke was away, and Ms. McBride was acting for him. Ms. Buckley testified that at the end of one of her weekly managers’ meetings, Ms. McBride made her aware of an issue involving the grievor and his behaviour. She stated that Ms. McBride broke down in tears when conveying to her the difficulties she was having managing the grievor. According to Ms. Buckley, Ms. McBride told her that the grievor

1. was highly disruptive;

2. was disruptive in staff meetings;

3. sometimes did not go to staff meetings; and

4. was disrupting the work of the division.

35        Ms. McBride testified that in January 2010, she implemented weekly team meetings and that in February 2010, she noticed behaviour issues with the grievor at a team meeting. She described an incident that occurred at a meeting when a dispute arose between her and the grievor over the assignment of work to another employee.

36        Ms. McBride stated that after this incident, she noticed that the grievor often refused to attend meetings, including team meetings, and that he often left work without permission. She stated that she advised him that he had to seek leave to be away from his desk and that he ignored this requirement. She stated that the grievor also had performance issues.

37        Ms. McBride testified she met with the grievor in June 2010 to deal with his performance assessment for the fiscal year that ended on March 31, 2010. She stated that she could not comment on the performance for the previous fiscal year as she had not supervised him. She testified that the meeting was difficult because the grievor had assigned himself a “superior” rating on the appraisal and was defensive over his work objectives for the coming year. She stated that she reviewed the assigning of the “superior” rating with the grievor’s previous supervisor and as a result changed the rating. She stated that after doing this, the grievor began to bad-mouth her, and it was reported back to her that he was stating that her action of changing the rating on his performance appraisal was criminal.

38        The grievor testified that he successfully grieved this performance appraisal rating change.

39        Ms. McBride described a situation in which the grievor refused to sign the conflict of interest portion of a contribution agreement and that she felt he had lied about not having a conflict of interest.

40        Ms. McBride testified about an incident that occurred surrounding the visit of a foreign delegation that met with different divisions and attended presentations. The grievor had made one of the presentations. A consultant had also been involved with the visit. At the next weekly meeting, the grievor monopolized the meeting and ranted over the inappropriateness of the consultant being involved. According to Ms. McBride, the day after this meeting, she and Mr. Burke were in Toronto, Ontario, and they were advised that the grievor and another employee had got into an argument about the visit and the consultant at the weekly team meeting. According to reports sent back to Ms. McBride, the grievor called the employee a “liar” and stated that the employee “had his head stuck up his ass.”

41        Ms. McBride stated that she had employees expressing concern to her about the grievor. According to Ms. McBride, one employee asked to be moved, and another asked to be coached on how to deal with the grievor. Ms. McBride stated that she realized after this point that there was not just an issue between her and the grievor but that she had a responsibility to protect the other employees in the workplace, which is when she went to see Ms. Buckley about the grievor’s behaviour.

42        Ms. McBride was brought to the 2011 Report, was asked about the summary of her interview, and confirmed that the events outlined relating to her interactions with the grievor were accurate. The interview notes state as follows:

Ms. McBride began working at NRCan in December 2009; she is Mr. Mangatal’s direct supervisor. She was appointed to the position of Deputy Director of LNCA, IPD of the OEE.

She referred to one of the staff meetings where Mr. Mangatal attended and stated that “he got into what I could and what I could not assign to my staff.” She mentioned that he rants at meetings and then leaves. He is loud, forceful and accuses his managers of being terrible managers. She stated that he has nothing positive to say, he is always critical and he raises issues without specifics at management meetings. She has characterized the past year as extremely stressful for her. She confessed having lost her temper at her first meeting and that he had left the meeting. She said that he is always on the defensive.

Referring to the performance appraisal meeting that took place in June 2010; she said that he was agitated, defensive and loud. She presented him with his work plan and he said “it’s not as bad as I thought it would be.”

She referred to another incident that took place over the summer 2010 where employees were asked to sign a conflict of interest checklist. She said that the whole thing blew up when he refused to sign the conflict of interest form. She was later informed that Mr. Mangatal was acting on his own behalf as his union was not supportive of his actions.

She said that he always yells at her. She referred to a trip to Cobourg where she asked him for his itinerary in order to plan and approve the overtime; he said “I’m not going.” She also referred to an argument he had with a colleague.

She mentioned that nobody is allowed to have opposing opinion [sic] to his. He advises staff “this person should not be doing this work. You can’t do this, you can’t do that.” He says to staff that it’s not part of their job description, and that they should file a grievance. Employees came to her with this information and she has overheard him say that to an employee. She stated that “He is on the phone all the time … on union business?” He rants constantly. One new employee that sits next to him asked to be moved. He will often say that all managers are wrong.

She said that “I have to protect my own employees, especially after fights. He doesn’t think straight, his thinking is not logical. He reacts emotionally.” She mentioned being afraid to approach him with it. She expressed her concern with the fact that employees may not want to talk about it for fear that he may find out who said anything. One of his colleagues confided in Ms. McBride to feeling intimidated. This colleague is considered to be a top performer, yet wants to leave and has said that s/he has never encountered someone as belligerent and unstable as him. She further stated “I don’t want to go on a one on one until he is assessed by a professional”.

43        Ms. McBride stated that the grievor accused her directly of both financial and human resources mismanagement. She stated that it was not uncommon for the grievor, at the team meetings that he did attend, to rant and then stalk out. She stated the grievor would often make bald allegations of wrongdoing and mismanagement without providing details.

44        Ms. McBride stated that on one occasion, she did lose her patience with the grievor, which occurred after the time frame of the events that led to the 2011 Report. According to Ms. McBride, the discussion was about the travel audit (which is specifically set out later in this decision), and while it was being discussed at a meeting, the grievor alluded to it “only being a $3.00 coffee” to which she reacted by swearing at him and saying it was a lie. She stated that the grievor asked her to apologize, to which she refused.

45        Ms. McBride testified that her health was impacted by having to deal with the grievor and described the physical impact that dealing with him had had on her health. She stated that she had to go on stress leave from having to deal with him and that in the end, his behaviour drove her to retire earlier than she had planned.

46        A significant amount of evidence in the cross-examination of Ms. McBride covered the grievor’s performance. She testified that the grievor’s performance output was well below that of his colleagues and that he often refused work or did not do work that he was responsible for, thus increasing the work of his colleagues.

47        Ms. McBride testified to the difficulties she had with respect to managing the grievor’s attendance at work. She stated in both her examination-in-chief and in cross-examination that the grievor would often attend several other activities that might or might not have been related to his work position, such as activities related to his position(s) within the PIPSC or the NCVM. While these activities might have been legitimate to attend, she stated that the grievor often would not advise her of his absences and often would not obtain leave. She stated that while his absences for these activities were accommodated, they were overwhelming, and he was not accounting for all his time. She stated that the grievor had to seek approval for his absences, which he often did not do. The issue was not that he was away but that he was away without leave and without advising her.

48        Ms. Buckley stated that after speaking with Ms. McBride, she spoke with Ms. Leblanc, who advised her that she (Ms. Leblanc) would put together a team involving OHS, Security, and LR that would conduct a fact-finding process.

49        Messrs. Clement and Theocharides and Ms. Leblanc authored the 2011 Report, a draft of which was dated December 2010 (“the 2010 Report”). The 2010 Report was sent to the grievor on January 31 and on February 1, 2011, and the 2011 Report was sent to him on February 17, 2011.

50        Exhibit G-2, tab 12, is a copy of the 2010 Report. The grievor underlined some of the sentences. There were circles around some of the words and phrases; in some places, there were question marks and asterisks. The word “hearsay” was written next to a paragraph, and the word “who” was written under the word “she” in a paragraph.

51        Mr. Clement and Ms. Leblanc testified before me; Mr. Theocharides did not.

52        Mr. Clement testified that his role in the fact-finding process was to interview the witnesses. He stated that there were approximately 15 interviews. He initially stated that the interviews took place over a two-week period shortly before Christmas 2010 and in January 2011. In cross-examination, when it was brought to his attention that the 2010 Report (Exhibit G-2, tab 12) was dated December 2010, he stated that the interviews probably took place in October 2010. He also stated that the only interview of the grievor was at the November 24 meeting.

53        Mr. Clement was asked whether, by the time of the November 24 meeting with the grievor, the investigation had taken place. His response was that people had been spoken to and preliminary meetings had taken place. He then stated that this was to determine if an investigation should be undertaken. When Mr. Clement was asked if the investigation had been completed by the November 24 meeting, he stated that the grievor’s position at the November 24 meeting could have led the investigation team to reinterview people.

54        Mr. Clement stated that when he was asked whether during the November 24 meeting the grievor had asked for union representation, he replied that he had forgotten if this had happened.

55        Mr. Clement was asked if he recalled stating during the course of the November 24 meeting that the grievor could be criminally charged. Mr. Clement stated that he recalled referencing criminal harassment and stating that the issue should be taken seriously.

56        Mr. Clement described the grievor as confrontational and aggressive at the November 24 meeting; however, he also stated that he was not intimidated by the grievor.

57        Mr. Clement was asked if he recalled whether the grievor was told that the allegations against him would be shared with him, to which Mr. Clement replied that he could not remember.

58        The allegation and issue are set out in the 2011 Report as follows:

IV. THE ALLEGATION

Employees in IPD alleged that Mr. Mangatal acted in an intimidating and/or bullying fashion in his interactions with peers and his managers, thus creating an unhealthy environment and creating concerns of personal safety.

V. THE ISSUE

Did Angelo Mangatal intimidate and/or bully his peers and managers?

59        While the 2011 Report is a little more than 13 pages long, the factual allegations against the grievor, save and except those by Ms. McBride and Mr. Burke (the only two people who were identified in the report), are set out over 31⁄2 pages. Contained in these 31⁄2 pages are 27 bullet-point paragraphs under the heading of “Evidence” and the subheading “Synopsis of Information/Statements Gathered From Various Witnesses” (“the 27 bullet points”), which contain statements made by unidentified persons. The 27 bullet points are not numbered; however, for the purpose of this decision, I have numbered them, and they are as follows:

1. Several stated that the way Mr. Mangatal conveys messages can be intimidating. They mentioned that on many occasions Mr. Mangatal was talking loud, yelling and had an aggressive tone.

2. Some mentioned that when they get work from their manager, Mr. Mangatal would tell them that they didn’t have to do that as it was not part of their work description.

3. One saw Mr. Mangatal move closer to a colleague. He was in his face. The colleague argued back, which was not like him as he is considered to be a gentle person. They felt very uncomfortable.

4. Several stated having heard Mr. Mangatal yelling at Ms. McBride in her closed office on multiple occasions – one said that Mr. Mangatal was “screaming at the top of his lungs” at Ms. McBride. (Ms. McBride is characterized as not being a confrontational person but was heard yelling back on one occasion.)

5. Others have heard Mr Mangatal belittle colleagues with phrases such as “You are only in this for yourself ... You have your head up your boss’ ass ... You lack integrity ...What the hell do you know!”

6. Some witnesses have seen Mr. Mangatal “pump his chest out” and taking an aggressive stance, leading to fears of physical violence. (They felt that the confrontational demeanour could have turned physical between Mr. Mangatal and a colleague.)

7. On one occasion of bullying, Mr. Mangatal admitted to having “snapped” and apologised to the employee in question. He was told that there should not be a repetition in the future.

8. At one particular staff meeting, Mr. Mangatal was arguing with Mr. Burke about an Angola delegation on mining. Mr. Mangatal was characterized as being upset because he was asked to participate, even though mining is part of Mr. Mangatal’s responsibilities. It was noticed that Mr. Burke was really perturbed/upset about the event. Some felt that the meeting was sort of held hostage by Mr. Mangatal’s behaviour.

9. An other witness said that Mr. Mangatal had used an inappropriate tone with him/her in a public area.

10. It is perceived by several colleagues that Mr. Mangatal is a powerful person in that he thinks he has easy access to senior management (i.e. ADMs, DM).

11. Mr. Mangatal has been seen and heard getting upset, loud and aggressive. This behaviour has made employees shake and upset. Several were very concerned.

12. Witnesses have seen Mr. Mangatal verbally attack managers or subordinates. This has been felt to be intimidating when listening to his conversations as this is disruptive, unprofessional and inappropriate in the workplace.

13. Mr. Mangatal often talks about his prominence in PIPSC (i.e. refers to his role as president).

14. At a staff meeting where Mr. Mangatal’s manager invited the Director, Mr. Mangatal was extremely aggressive and accusatory towards the Director. In the open forum, Mr. Mangatal accused him, amongst other things, of lacking values and ethics and that Mr. Mangatal kept raising issues that were inappropriate under the circumstances. When a colleague tried to refocus the meeting, Mr. Mangatal said something inappropriate to him. Management tried hard to calm the situation down without success.

15. Some have stated that Mr. Mangatal constantly gives unwanted advice; he tells some people that they are being taken advantage of.

16. Others feel that Mr. Mangatal’s behaviour is condoned by management as nothing is seen to be done to correct it.

17. One witness referred to a “lunch and learn” session where Mr. Mangatal got up and started accusing a manager of being in a direct conflict of interest position because her husband was a consultant who got a contract with the department. He then said that this manager will be forced to resign over this conflict of interest. This was a very stressful time for this manager as well as very uncomfortable.

18. Witnesses have heard Mr. Mangatal makes statements that the managers in his division are incompetent, even when these same managers are PIPSC members who he is supposed to technically represent.

19. PIPSC has not been approached as the perception is that nothing would be done to correct the situation. Witnesses feel that Mr. Mangatal’s behaviour towards his colleagues and managers feels like harassment and intimidation.

20. Several witnesses mentioned having heard Mr. Mangatal raise his voice and his tone with Mr. Burke in his office. They have also stated that Mr. Burke is not the type of person that would raise his voice.

21. A common refrain from witnesses is that Mr. Mangatal hates anything that represents management or authority. Mr. Mangatal tends to be very disruptive in the workplace.

22. One witness heard Mr. Mangatal say that when Ms McBride arrived “she better not get between this war with Mr. Burke and me because she is going to lose”.

23. A witness stated that Mr. Mangatal was going to complain if a particular colleague was to get a position. Later he was going to complain if the colleague didn’t get the position.

24. One witness explained that Mr. Mangatal tends to speak with a lot of passion. He/she referred to an argument between Mr. Mangatal and Ms. McBride regarding what seemed to be a workload issue and something he didn’t want to do. Mr. Mangatal raised his voice with Ms. McBride more than usual; the tone was not only passionate. The witness said that he/she would have been very uncomfortable in Ms. McBride’s shoes. This witness has often heard Mr. Mangatal discussing workload problems with others. Mr. Mangatal is always criticizing work, projects and management.

25. Another witness mentioned that when female employees start, Mr. Mangatal comes to see them and discusses union issues (e.g. employees have rights). This witness also said that Mr. Mangatal stares at their chests. He/she explained that “the girls feel awkward”. At least three (3) have approached him/her with this information.

26. It seems that Mr. Mangatal always complains about Mr. Burke and Ms. McBride to subordinates and puts down management. These comments make the subordinates very uncomfortable.

27. Several witnesses referred to Mr. Mangatal’s role as a PIPSC representative and that he “will change things in the office” as he has a good relationship with the DG and the ADM. Mr. Mangatal has told several that he has weekly meetings with the ADM to resolve the problems at the office. One mentioned that it seems that Mr. Mangatal neglects departmental work to address his union work. He has even stated that he has another office [at PIPSC].

[Sic throughout]

60        Mr. Clement was brought to the 27 bullet points and was asked if these were presented to the grievor at the November 24 meeting, to which he replied that the grievor was not provided the information as displayed in the 2011 Report. When asked how the allegations were presented to the grievor, Mr. Clement replied that they referenced “shouting incidents” and “behaviour in staff meetings”. When Mr. Clement was asked if he gave the grievor the specifics of the allegations, he stated that he did not recall doing that as they were not his part of the presentation that day. Mr. Clement stated that only broad statements were made to the grievor, not specifics. Mr. Clement stated that the purpose of the November 24 meeting was to make the grievor aware of allegations and that once a report was out, he would be given an opportunity to respond to the findings.

61        Mr. Clement confirmed that the allegations that appear in the 2010 Report and the 2011 Report are the only allegations that were ever provided to the grievor.

62        It was put to Mr. Clement in cross-examination that many of the 27 bullet points were perceptions. In response, Mr. Clement suggested that the grievor would know what these perceptions were about.

63        Mr. Clement took notes of interviews with witnesses whose identities were not disclosed to the grievor. Those notes were never provided to the grievor. Those notes were not produced at this hearing.

64        Ms. Leblanc was the acting senior director of workplace management and health and the manager of labour relations, values and ethics, and corporate compensation. Ms. Leblanc stated that her background included 10 years in the private practice of administrative law in the province of Quebec. She testified that she has conducted between 60 and 70 investigations, including fact-finding processes into deployments and harassment investigations.

65        Ms. Leblanc testified that she was contacted in late October 2010 with respect to conducting an investigation. She stated that the meetings or interviews were conducted in November 2010. Ms. Leblanc testified that she interviewed certain managers in the workplace and from those interviews gleaned the names of other persons who might have information, and she would then interview those persons.

66        With respect to the witness interview process, Ms. Leblanc stated that Mr. Theocharides was the investigation lead and would explain the purpose of the meeting to each interviewee. They were invited to speak about what they had seen or heard directly and not what they had only heard about.

67        Ms. Leblanc confirmed that the November 24 meeting with the grievor was supposed to be an interview. She confirmed that the invitation came from a boardroom and did not contain any other of the attendees’ names. She confirmed in cross-examination that the subject line of “OHS” was very broad. Ms. Leblanc stated that the grievor was aggressive, frustrated, uncooperative, and confrontational. She stated that he accused Ms. Buckley of wrongdoing.

68        Ms. Leblanc confirmed that the grievor asked for a representative at the November 24 meeting and that he was not allowed to have one. She confirmed that during some investigations of some complaints, people are accompanied by union representatives, but not always. When asked in cross-examination what she would have done if the grievor had shown up to the November 24 meeting with a union representative, she said that they would have asked the representative to leave. Ms. Leblanc stated that procedural fairness does not require a union representative to be present but that it requires the person to be informed of the allegations being made against him or her.

69        Ms. Leblanc was brought to pages 12 and 13 of the 2011 Report entitled, “Angelo Mangatal”, was brought to the paragraphs contained in it, and was asked if they accurately reflect what happened at the November 24 meeting, to which she confirmed that they did. The second paragraph under this heading referred to a statement made by the grievor that he had a “different presentation style than others.” Ms. Leblanc described his style as passionate and stated that he speaks a lot and does so a lot louder than most people and that this is his general demeanor. In cross-examination, Ms. Leblanc confirmed that at the time of the events at issue she had known the grievor for about two years, that he is someone who speaks in a loud voice, that he was passionate about fighting for the bargaining unit members he represented as a union representative, and that he fights for what he believes in.

70        Ms. Leblanc was brought to the portion of the third paragraph on page 12 of the 2011 Report, at which it states that the grievor stated as follows: “I am behaving 90% in accordance with the Directive on Prevention of Violence in the Workplace”, and was asked if the grievor admitted to bullying 10 percent of the time, to which she responded that he did.

71        Ms. Leblanc was brought to the 27 bullet points and asked why the persons making the allegations were not identified. She stated that when it comes to allegations of violence, it takes a lot of courage to come forward, and people are “scared out of their wits”; if people were identified, they would not come forward. Ms. Leblanc was asked why there were no specific dates with respect to the 27 bullet points, to which she answered that if too much information were provided, the identities of the persons making the statements could too easily be identified.

72        Ms. Leblanc testified that she felt that the information contained in the statements made by Ms. McBride and Mr. Burke was sufficient to find that bullying had occurred in the workplace.

73        Ms. Leblanc confirmed that while she took notes of the interviews that she participated in, none of her notes were produced to anyone. Her notes were not produced at this hearing.

74        Ms. Leblanc stated that at the November 24 meeting, the allegations as they were set out in the 2011 Report were read to him but that the grievor did not want to go through the allegations; instead, he wanted to talk about other things that other people were doing that he felt amounted to criminal behaviour. Ms. Leblanc was asked specifically about the 27 bullet points and whether he would have been offered all these points at the November 24 meeting, to which she answered that “he got the 2011 Report and chose not to respond.” She was then asked if they had had all these points with them at the November 24 meeting, to which she responded that they did and that they were ready to share them with him; yet, she also stated that she could not provide any details to the grievor with respect to the points.

75        Ms. Leblanc was brought to a chain of five emails dated between November 25 and 30, 2010, four of which either Ms. Leblanc sent or was a recipient of. The first email in the chain was from Mr. Prokopuk, a PIPSC union steward at NRCan, and the subject line was, “Late afternoon Meeting with A Mangatal Nov 24th-10 regarding Workplace Issues”. The email read as follows:

…

As Angelo’s PIPSC Steward, I am requesting a detailed explanation of your, HR’s and Security’s actions yesterday where I perceive you harassed a PIPSC Steward and denied him the right to union counsel.

Bullying [as a reprisal] against a PIPSC member who has an outstanding grievance against management is not to be tolerated within this department < DM’s own words.

[Emphasis added]

76        When Ms. Leblanc was brought to the email chain of November 25-30, 2010, she was asked what Mr. Prokopuk wanted to discuss. Her response was that as she read the email from Mr. Prokopuk, he was not representing the grievor.

77        Ms. Leblanc confirmed that at the time of the investigation, she was aware that the grievor was a member of the NCVM and was active in the PIPSC.

78        In 2010, Richard Janecky was a CO-01 (acting in a CO-02 position) working in the OEE and was a colleague of the grievor’s. Mr. Janecky stated that he had known the grievor since late 2007 and that initially they had had a good relationship; however, by about 2009-2010 that relationship had deteriorated. Mr. Janecky stated that his impression of the grievor was that work was not a priority — fixing the workplace was. Mr. Janecky testified that they had had disagreements and that their relationship became strained; he stated that the disagreements tended to be about the grievor being focused on the functioning and management of the workplace as opposed to doing file work. Mr. Janecky stated that there were five COs in the OEE and that they had to rely on one another to get the work done. According to Mr. Janecky, the grievor had become less of a team player and had become focused on management problems.

79        Mr. Janecky was brought to bullet point 3 in the 2011 Report and identified it as being about him. Bullet point 3 states: “One saw Mr. Mangatal move closer to a colleague. He was in his face. The colleague argued back, which was not like him as he is considered to be a gentle person. They felt very uncomfortable.” Mr. Janecky described this situation in detail. He stated that at one point he had a heavy workload and a lot of events, and during one week, he was double-booked. Rather than cancel one of the events, he said that he had asked the grievor to take it over, and the grievor agreed to. Mr. Janecky testified that three or four weeks later, he checked back with the grievor to see if the arrangements for the event had been taken care of, and the grievor told him that he was not going to do it. Mr. Janecky stated that when the grievor advised him of this, he walked over to the grievor’s cubicle to express his discontent, and the grievor told him that “doing this work wasn’t in his job description.” Mr. Janecky stated that the grievor stood up and told him that he had his “head up his manager’s ass.”

80        Mr. Janecky said this encounter with the grievor was very stressful, and he immediately went home. He said that he felt threatened and thought that the situation was escalating and that if he continued to argue with the grievor, he would find himself in a fight with him. Mr. Janecky stated that he always held his clients in a high regard, and the grievor had left him in a lurch. He stated that the grievor showed him no common decency and that if he (Mr. Janecky) had not followed up with the grievor, who knows what would have happened with respect to the event.

81        On cross-examination, the grievor was brought to bullet point 3 in the 2011 Report, and while he admitted he recalled it, he provided no elaboration. When it was put to him that he made the statement, “you have your head up your manager’s ass,” he denied making the statement.

82        Mr. Janecky described the staff meetings that the grievor attended. He stated that the grievor would comment before the start of the staff meeting about how they were a waste of time and that once they started, usually 10-15 minutes in, the grievor would express his opinion (which was negative), throw the meeting off course, and then storm out. The gist of the grievor’s opinions, he stated, was about management leadership and division direction.

83        Mr. Janecky stated that the grievor had a loud voice and that when frustrated, he became more belligerent. He stated that suggesting the grievor was passionate about something was an understatement. He indicated that Ms. McBride’s office was about five or six metres from his workspace. He explained he would witness the grievor march into her office. He could hear the grievor raise his voice at her. This happened multiple times. He said that you could not help but notice it happening as it was quite disruptive to the office. Mr. Janecky stated that he was concerned about Ms. McBride; he felt she could not handle the stress. According to him, it was “difficult to focus on your work when there is so much drama.”

84        Mr. Janecky testified that when the grievor made comments, it would fluster Ms. McBride to a point at which he could see physical evidence of the reactions she was having. It was difficult to be in the same room and watch it happen; at times, she could not finish staff meetings. He did not believe that Ms. McBride could cope with it. Ms. McBride’s job as a manager was to manage staff, and the grievor was not going to be managed. Mr. Janecky characterized Ms. McBride as a casualty of the grievor’s behaviour. However, Mr. Janecky indicated that Mr. Burke handled the grievor differently. Mr. Burke would try to find a logical way out of a situation with the grievor by posing a question back to him. According to Mr. Janecky, Mr. Burke did not appear to get visibly upset when the grievor made comments.

85        Mr. Janecky was brought to bullet point 21 in the 2011 Report and was asked if he knew what it was about. He confirmed he did and stated it was about a harassment training session in which the grievor knew the facilitator and took issue with that person. According to Mr. Janecky, the grievor did not think the facilitator was qualified and stated he was not going to go and that no one else should either. The grievor was brought to this bullet point in cross-examination and stated that it was someone’s perception.

86        Mr. Janecky was brought to bullet point 22 in the 2011 Report and was asked if he knew what this point was about. He confirmed he did and stated he heard the grievor make the statement that “Ms. McBride should not get between [him] and Mr. Burke because she is going to lose.” The grievor was brought to this bullet point in cross-examination and stated that he did not talk like that.

87        In cross-examination, Mr. Janecky was asked about the grievor’s criticism of management and responded that the common theme he perceived from the grievor was that management was inept but that the specifics were unclear. He stated that the grievor complained a lot but that it was difficult to decipher exactly what his complaint was.

88        Mr. Janecky stated in cross-examination that he never told the grievor his advice was unwanted; however, he also stated his strategy with the grievor was to not accept his advice and to not ask questions, and as such, the grievor’s advice-giving would taper off.

89        Mr. Burke confirmed that he was interviewed as part of the fact-finding process. He was brought to the summary of his interview in the 2011 Report and confirmed that he made the statements contained in that part. Mr. Burke testified that employees would come see him and would complain about the grievor’s behaviour.

90        Much of what Mr. Burke stated was second-hand. However, he did confirm that he did witness some direct confrontation at staff meetings that he attended. Mr. Burke explained what he meant in his statement in the 2011 Report, in which he said that he “… believed the grievor was conscious of his bullying tactics.” He stated that it had been going on for a long time, and how could he not know of it? The employees worked in a common open-concept layout. Mr. Burke stated that employees were coming to see him and complaining and that the grievor was not accepting any ownership of his behaviour. Mr. Burke was of the view that the grievor was aware of what he was doing.

91        Mr. Burke was brought to bullet point 8 in the 2011 Report, which is about a foreign delegation on mining. He indicated that the OEE was asked to host a meeting with the delegation in an effort to explain what Canada did with respect to the mining sector. According to Mr. Burke, since mining was in the grievor’s portfolio, the grievor was asked to prepare a presentation. Mr. Burke explained that friction developed between him and the grievor over the presentation. According to Mr. Burke, the grievor’s work was not sufficient, and Mr. Burke had to put in a significant amount of work to ensure the presentation was done properly and on time, which he stated it was. He also stated that the grievor was upset because there was no hospitality (food and drink) provided. The grievor was brought to this bullet point in cross-examination, and he stated that he recalled a discussion about a different foreign delegation in a post-presentation meeting and that he was trying to keep the delegation busy. He also recalled being upset about the way the delegation was treated.

92        Mr. Burke was brought to bullet point 14 in the 2011 Report, which is about a staff meeting in which it was alleged that the grievor accused him of lacking values and ethics. The grievor continually tried to raise issues inappropriate to that forum. Mr. Burke testified that an issue had arisen in which the grievor felt that a manager was in a conflict of interest. According to the grievor, because there was a conflict that involved a manager under Mr. Burke’s watch, Mr. Burke’s ethics and values were questionable. The grievor was brought to this bullet point in cross-examination and stated that the information it contained was too vague.

93        Exhibit E-7 is a copy of an email dated March 8, 2012, sent by Mr. Burke to Human Resources (HR), which outlines concerns he had shared with those individuals earlier that day about the aggressive behaviour of the grievor. Mr. Burke set out his concerns over the grievor’s agitation and attitude and escalating aggressive manner. Mr. Burke stated that he brought the concerns to HR because he was concerned about the safety of his other employees, vis-a-vis the grievor. This document and the events described within it post-date the time frames of the 2011 Report and the discipline in Board File No. 566-02-7742.

94        Mr. Burke agreed on cross-examination that the grievor was a passionate individual who often spoke in a loud and harsh manner. He also knew that the grievor was a PIPSC representative.

95        While Messrs. Burke and Janecky and Ms. McBride testified, no one else who allegedly made the statements or allegations contained in the 27 bullet points did.

96        The grievor was brought to the 27 bullet points and was asked if any of them were brought to his attention before the investigation, to which he answered “No”; however, he did confirm that bullet point 7 was an event that he recalled (although it was not brought to his attention). He stated that this was an incident in which a particular person in the office was asked to do certain work, and according to the grievor, the work included inputting information from others (including him.) He stated that he saw the finished product at a photocopier and became upset because the finished product excluded his work and that of other colleagues. The grievor admitted that this person told him that it had not been the intention to exclude the grievor’s work (or that of their colleagues). The grievor indicated that he did not believe this person’s explanation. The grievor admitted that he accused this person of excluding his work (and that of his colleagues) on purpose and told the person that it was “despicable” and that he/she “knew what they were doing and it was deliberate.” The grievor stated that this person was very upset with the encounter and cried. He went on to explain that he was called into Mr. Burke’s office and that he and Mr. Burke had a discussion. Mr. Burke told him this person was entitled to an apology, to which the grievor agreed, and he wrote one out that was approved by Mr. Burke.

97        The grievor took exception to bullet point 25, which alleges that he “stares at [the] chests” of new female employees. He categorically denied this; however, he was advised that he was given a one-day suspension and that he was supposed to take some training, which did not take place for about a year.

98        Ms. Buckley attended the November 24, meeting and Exhibit E-3 is her notes made during that meeting. She stated that she spoke first and advised the grievor that there were issues that had been raised, and she provided some examples and advised the grievor that there would be a fact-finding process led by the three offices (OHS, Security, and LR). She stated that the grievor responded by stating three things:

i. Employees are lying.

ii. He is accountable to himself.

iii. He is driven by fraud in the workplace.

99         Ms. Buckley described the grievor’s behaviour at the meeting as forceful and that he stated a number of opinions in a strong fashion. When asked if she told him to “sit down”, Ms. Buckley could not recall; nor, however, could she recall him getting up.

100        Ms. Buckley was brought to her letter of February 17, 2011, which was sent to the grievor with the 2011 Report. When asked what the purpose of the document was, she explained that she forwarded the 2011 Report to the grievor at that time to give him an opportunity to reply and to advise him that there was to be a disciplinary hearing.

101        A disciplinary hearing was held on February 28, 2011, which the grievor did not attend but at which he was represented by a PIPSC representative.

102        On March 8, 2011, Ms. Buckley wrote to the grievor about discipline. She stated as follows:

…

You did not attend the February 28, 2011 disciplinary hearing to discuss mitigating factors. Prior to my arrival at the meeting, you confirmed to both the Union and Labour Relations representatives in attendance that your representative would make the presentation on your behalf. As such, your representative noted that:

· You alleged that there were contradictions in the testimony of one witness in the Fact Finding Report which could lead one to believe that this witness did not feel threatened by your behaviour.

· You stated that you felt provoked by one of your managers which triggered your behaviours.

· You alleged that you were intimidated by the setting of the November 24, 2010 meeting in which five (5) departmental representatives would have brought the complaints and fact finding to your attention for your comments. You further added that you had no union representation.

Comments were also made about the substance of the work in the division, as noted in the testimony. These comments are not germane to the issue of your behaviour and the reaction of your colleagues and managers to your behaviour.

I reviewed and considered your arguments and assessed the facts of the case. I came to the conclusion that your behaviours constituted misconduct. The evidence gathered in the fact finding report establishes that you demonstrated a pattern of intimidating and bullying behaviours towards colleagues and management.

As per the evidence gathered in the Fact Finding Report, your rude and offensive behaviours were directed to a large number of people in your division, both colleagues and managers and were repeated over a prolonged period of time in multiple settings. The evidence further supports that your actions have created a sense of discomfort within the work unit and intimidated many of your work colleagues.

In accordance with the provisions of the Values and Ethics Code of the Public Service (V&E), you are required as a Public Servant to demonstrate respect, fairness and courtesy in your dealings with fellow public servants which you have failed to observe. By your behaviours, you have also contravened the NRCan Prevention of Violence in the Workplace Directive which requires employee to conduct themselves in a non-threatening manner in the work place.

In arriving at my decision, I have considered your track record, your years of service in the Public Service and the fact that you collaborated to the fact finding exercise.

On the other hand, I took into account that you stated that you were well aware of the provisions of the V&E Code and the Violence in the Workplace Directive. Furthermore, I took in consideration that you have not taken responsibility or show any remorse for any of your behaviours. You have rather laid blame on others as a reason to justify management’s intervention. I also factored in this decision the element of repetition of your inappropriate behaviours as well as the severity of the comments and the tone in which some of these remarks were made.

The claim your representative presented suggesting that you were allegedly provoked would not explain why your behaviours were inappropriate to so many people. Moreover, I have not retained the argument that you would have felt intimidated by the November meeting and fact finding as this does not address your behaviours which were all prior to these events.

…

[Sic throughout]

103        Ms. Buckley determined that a one-day suspension was appropriate discipline for the misconduct.

104        The grievor described in limited detail a few situations in which he felt there were conflicts of interest relating to the OEE and IPD, but he also described a particular situation with respect to a consulting firm associated with the OEE and IPD, which he set out in more detail. These allegations related to both Ms. Buckley and Mr. Burke. The grievor produced as part of his evidence a submission dated March 3, 2011, which he sent to the Auditor General’s office.

Board File No. 566-02-7741 - termination of employment

105        References to flight departure and arrival times in this decision mean times local to the named departure or arrival cities, as the case may be, across the country.

106        The testimony of the grievor, as well as Messrs. Jago, Gingras, and Burke and Ms. McBride, described the position held by the grievor as being one that required a significant amount of travel.

107        The rules for travel as well as for compensation while travelling for work are set out in the collective agreement and the National Joint Council (NJC) Travel Directive (TD). The NJC TD was co-developed by participating bargaining agents and public service employers and is deemed part of collective agreements between the parties represented in the NJC, which include both the Treasury Board and the PIPSC.

108        In 2011, Sharon Vien was a senior executive services advisor for executive performance management and leadership development programs. Her duties were to ensure effective performance management and the talent management of the executive cadre as well as members of the leadership programs who were not part of the executive cadre.

109        Ms. Vien testified that when the grievor joined the OEE in December 2007, he was in the CAP and was classified at the PL-06 group and level, which was a level that was higher than his CO-02 position. When joining the OEE, the grievor left the CAP program; however, pursuant to the Directive on the Administration of Leadership Development Programs - Management Trainee Program and Career Assignment Program (“the Directive on LDP-MTP-CAP”), he was salary protected at his PL-06 position as his salary in that position was greater than that of a CO-02. However, the salary protection ended (as per the directive on LDP-MTP-CAP) once the CO-02 salary overtook the PL-06 salary or after two years (whichever came first). In the case of the grievor, the two years came first, and as such, at the end of the two years, his salary protection ended, and his salary reverted to that of a CO-02 in December 2009.

110        The Directive on LDP-MTP-CAP states under “Appendix B - Terms and Conditions and Salary Administration of the Leadership Development Programs” as follows:“1.1 The Public Service Terms and Conditions of Employment Regulations (PSTCER) apply to participants with the exceptions set out in this appendix… [emphasis in the original].”

111        Exhibit E-5, tab 4, is the Treasury Board Directive on Terms and Conditions of Employment (“the Ts & Cs Directive”). The Ts & Cs Directive states at article 2 that the directive applies to all persons appointed to the core public administration as defined in s. 11 of the Financial Administration Act (R.S.C. 1985, c. F-11; “the FAA”),unless they are otherwise excluded through specific acts, regulations, or Orders in Council.

112        The Ts & Cs Directive defines overtime as the following:

… authorized time worked by a person in excess of the standard daily or weekly hours of work and for which the person may be entitled to compensation pursuant to the provisions of the relevant collective agreement or terms and conditions of employment.

113        Article 8 of the Ts & Cs Directive states that “[t]he working day of every person appointed to the core public administration commences and terminates each day at the hours fixed by the person with the delegated authority.”

114        Article 9 of the Ts & Cs Directive states the following:

A person is to be compensated for overtime, in accordance with the provision of the relevant collective agreement or terms and conditions of employment, only when the following conditions are in place:

a. the person with the delegated authority has required the person to work overtime;

b. the person does not control the duration of the period that he or she works overtime; and

c. the person with the delegated authority has certified the duration of the overtime worked and has authorized compensation.

115        Article 2 of the collective agreement is the definition section, and overtime is defined as “… work required by the Employer, to be performed by the employee in excess of his daily hours of work …”.

116        Article 8 of the collective agreement sets out hours of work. The normal workweek was Monday to Friday, and the scheduled workweek was 37.5 hours. The scheduled workday was 7.5 consecutive hours, exclusive of a meal period, between the hours of 7:00 a.m. and 6:00 p.m. (clauses 8.04(a) through (d)).

117        Clause 8.07 of the collective agreement states that “[o]vertime shall be compensated for all work performed in excess of an employee’s scheduled hours of work on normal working days.”

118        Article 9 of the collective agreement governs the payment of overtime and states that when an employee is required to work overtime in excess of his or her scheduled hours of work (on a normal working day or on a holiday or designated holiday), the employee will be paid at a rate of time-and-a-half or double time, depending on the circumstances.

119        Clause 9.04 of the collective agreement provides for an employee, at the discretion of the employer or at the request of the employer and with the concurrence of the employee, taking compensation earned as overtime as compensatory leave.

120        Article 13 of the collective agreement governs situations in which an employee is required to travel outside the headquarters area for the purpose of performing duties. The headquarters area is defined in article 2, which states that it has the same definition as in the Travel Policy. Under the NJCTD, it is the area within 16 kilometers from the assigned workplace. The grievor’s headquarters area was Ottawa-Gatineau and surrounding region.

121        Clause 13.01 provides as follows:

13.01 When the Employer requires an employee to travel outside the employee’s headquarters area for the purpose of performing duties, the employee shall be compensated in the following manner:

(a) On a normal working day on which the employee travels but does not work, the employee shall receive the employee’s regular pay for the day.

(b) On a normal working day on which the employee travels and works, the employee shall be paid:

(i) regular pay for the day for a combined period of travel and work not exceeding seven decimal five (7.5) hours,

and

(ii) at the applicable overtime rate for additional travel time in excess of a seven decimal five (7.5) hour period of work and travel, with a maximum payment for such additional travel time not to exceed twelve (12) hours’ pay at the straight-time rate in any day, or fifteen (15) hours pay at the straight-time rate when travelling beyond North America,

(c) On a day of rest or on a designated paid holiday, the employee shall be paid at the applicable overtime rate for hours travelled to a maximum of twelve (12) hours’ pay at the straight-time rate, or fifteen (15) hours pay at the straight-time rate when travelling beyond North America.

122        Clause 13.02 provides as follows:

13.02 For the purpose of clause 13.01 above, the travelling time for which an employee shall be compensated is as follows:

(a) For travel by public transportation, the time between the scheduled time of departure and the time of arrival at a destination, including the normal travel time to the point of departure, as determined by the Employer.

(b) For travel by private means of transportation, the normal time as determined by the Employer, to proceed from the employee’s place of residence or work place [sic], as applicable, direct to the employee’s destination and, upon the employee’s return, direct back to the employee’s residence or work place [sic].

(c) In the event that an alternate time of departure and/or means of travel is requested by the employee, the Employer may authorize such alternate arrangements in which case compensation for travelling time shall not exceed that which would have been payable under the Employer’s original determination.

123        Part 1 of the NJC TD is entitled “Administration”. Section 1.1 is entitled “Authorization” and states in part as follows:

…

1.1.2 Government travel shall be authorized in advance in writing to ensure that all travel arrangements are in compliance with the provisions of this directive. In special circumstances, travel shall be post authorized by the employer.

1.1.3 Expenses resulting from misinterpretations or mistakes are not a basis for reimbursement or non-reimbursement. However, such situations shall be reviewed on a case-by-case basis.

124        Section 1.5 of the NJC TD is entitled “Responsibilities” and states in part as follows:

1.5.1 The employer shall:

…

(c) ensure that the manager with delegated authority, in consultation with the employee and the employee’s immediate supervisor:

(i) determine whether travel is necessary;

(ii) ensure that travel arrangements are consistent with the provisions of this directive …

…

(d) authorize travel, including blanket travel authority;

(e) verify and approve travel expense claims before reimbursement …

…

1.5.2 The traveller shall:

(a) become familiar with the provisions of this directive;

(b) consult and obtain authorization including blanket travel authority, where applicable, to travel in accordance with the directive;

…

(d) complete and submit travel expense claims with necessary supporting documentation as soon as possible after the completion of the travel… .

…

125        Part III of the NJC TD is entitled “Travel Modules”. Section 3.3 is entitled “Module 3 - Travel in Canada and continental U.S.A. - overnight stay”. This section of the TD addresses the type of travel the grievor engaged in.

126        Section 3.3.1 is entitled “Accommodation”. The relevant portions of section 3.3.1 state as follows:

The standard for accommodation is a single room, in a safe environment, conveniently located and comfortably equipped.

…

Although travellers generally stay in commercial accommodation, private non-commercial accommodation is encouraged. A traveller who chooses private non-commercial accommodation shall be reimbursed the rate as specified in Appendix C. In addition, ground transportation costs shall be authorized when it [sic] is cost effective. Cost effectiveness shall be determined by comparing the total cost of accommodation and transportation in the private non-commercial accommodation with available commercial or government and institutional accommodation and the associated transportation costs.

…

127        Section 3.3.7 is entitled “Incidental expense allowance”. The relevant portion of section 3.3.7 states as follows:

A traveller shall be paid an incidental expense allowance that covers a number of miscellaneous expenses not otherwise provided for in this directive for each day or part day in travel status as per Appendix C.

…

128        Section 3.3.9 is entitled “Meals”. The relevant portions of section 3.3.9 state as follows:

A traveller shall be paid the applicable meal allowance for each breakfast, lunch and dinner while on travel status.

Meal allowances shall be reimbursed in accordance with the rates specified in Appendix C.

…

A meal allowance shall not be paid to a traveller with respect to a meal that is provided. In exceptional situations where a traveller has incurred out of pocket expenses to supplement meals provided, the actual incurred costs may be reimbursed, based on receipts, up to the applicable meal allowance.

129        Section 3.3.11 is entitled “Transportation”. The relevant portions of section 3.3.11 state as follows:

The selection of the mode of transportation shall be based on cost, duration, convenience, safety and practicality. In addition to provisions outlined below under (a) Commercial, (b) Other modes of transportation and (c) Vehicles, expenses associated with the selected mode of transportation shall be reimbursed based on receipts, indicating the expense currency. Where a receipt is not available, a declaration will suffice. Such expenses include:

- seat selection fee for commercial, private and/or chartered carriers;

- airport improvement fees, not otherwise paid (e.g. prepaid as part of the fare);

- airport departure tax, not otherwise paid;

- miscellaneous charge order, for excess baggage/excess weight for commercial, private and/or chartered carriers (written explanation also required);

- public carrier ticket “change fee” for legitimate authorized official government purposes; and

- legitimate, mandatory transportation service charges and fees, incurred while in travel status, not otherwise paid (e.g. docking fees, road/bridge tolls, ferries and other transportation service charges/fees).

…

(a) Commercial

Where commercial transportation is authorized and used, the employee shall be provided with the necessary prepaid tickets whenever possible.

The standard for air travel is economy class. The lowest available airfares appropriate to particular itineraries shall be sought and bookings shall be made as far in advance as possible.

…

130        Appendix C of the NJC TD is entitled “Allowances” and applies to Modules 1, 2, and 3 of Part III of the TD. These allowances set out the going rates for staying in a private non-commercial accommodation, along with meals and incidentals.

131        The grievor testified that he was extremely familiar with both the collective agreement and the NJC TD.

132        Shortly after the grievor started with the OEE, he attended mandatory training for the online booking tool as booking travel online was to become mandatory for domestic travel. The grievor attended this training on December 14, 2007, and confirmed in an email on December 17, 2007, at 1:56 p.m. that the training was straightforward.

133        Exhibit G-4, tab 7, is an email chain of six pages between the grievor and a number of different individuals (including the December 17, 2007, 1:56 p.m. email). The first emails in the chain are about the attendance of the grievor (as well as many other individuals) at training for the online booking tool. The later emails in the chain are between the grievor and Line White and Andrew Allen. The grievor in an email to Ms. White on December 17, 2007, made some suggestions for some travel cost-saving strategies; one of which was the suggestion of securing access to the Star Alliance Lounge for all travellers to minimize downtime away from work. This email was forwarded by the grievor to Mr. Allen on January 7, 2008. Mr. Allen responded to the grievor on January 9, 2008, and the relevant part of that response is as follows:

I looked into your statements a little further and I have forwarded them on to Patrick Guindon at AMEX (who gave the presentation on Monday). All govn’t flights through the Travel Card are bought by AMEX. We are under contract with them. I would like him to see these suggestions and provide feedback to us. I am not sure if there would be a way to purchase lounge passes with flights. I know business class flights gains you access to the lounges but business class is against TB Travel Policy so this could cause a problem. AMEX books all flights as per TB Policy.

134        The grievor did receive the January 9, 2008, reply from Mr. Allen as he responded to him that same day.

135        Mr. Burke testified that he had a departmental Blackberry and that his staff, including the grievor, was also provided with one.

136        The grievor’s initial supervisor at the OEE was Mr. Jago. He supervised the grievor from December 2007 to June 2008. Mr. Jago stated that he had delegated financial authority to approve travel. He testified that when the grievor arrived in the OEE, one of their other COs had just left, and it was thought that since the grievor was from Calgary, it would be a good fit to have him be responsible for that part of the country.

137        Mr. Jago stated that his COs were free to organize their own schedules that were conducive to the delivery of the program but that he still authorized travel. He stated that under his supervision, requests for travel took many different forms, including both written and verbal requests; however, most were via email.

138        Mr. Jago confirmed that he had an unwritten understanding with the grievor that since the grievor had a home in Calgary, when he travelled there, he could at times work from his home there and spend weekends there as long as there was no expense to the employer.

139        The grievor testified that he was required to make work plans. The work plans covered travel, which had to be preapproved and covered by the budget. He stated that because he was from the west, he could stay in residences and save money. He indicated that his understanding with Mr. Jago was that he could use non-commercial accommodation when travelling but that is also contained in the NJC TD.

140        Exhibit G-4, tab 7, contains a number of documents, the first being an email dated January 2, 2008, and was put forward as an example of an email exchange between the grievor and Mr. Jago within which the grievor outlines his travel to Calgary and Edmonton, Alberta, for January 13 to 23, 2008. The email outlines the cost estimates that the grievor provided to Mr. Jago. A travel authorization request had to be approved, and a “Travel Authorization Number” (TAN) issued to book the airplane ticket.

141        Exhibit G-4, tab 3, is an example of a work plan used by COs in the OEE. This specific example was for the grievor for the fiscal year of April 1, 2008, to March 31, 2009. This specific example set out eight out-of-Ottawa events that the grievor suggested he attend between May and late October 2008, including five in Calgary, two in Vancouver, and one in Toronto. According to the grievor, if a work plan was rejected, a CO would make a new one.

142        It was clear from the evidence that although work plans are submitted, they are not written in stone and are fluid, that changes do occur during the course of a fiscal year, and that some new trips are added and some planned trips are cancelled. Sometimes, several events are booked for a specific trip, and then some of those events may not proceed, and sometimes, other events get added.

143        After Mr. Jago departed the OEE, the grievor reported to Mr. Gingras from the summer of 2008 to August 2009. Unlike Mr. Jago, Mr. Gingras did not have delegated authority to approve travel; Mr. Burke had it.

144        Exhibit G-4, tab 4, is an example of the kind of note the grievor stated he sent to Mr. Gingras to update him on his travel and whereabouts. The events and activities listed in this document encompass activities different from those in the work plan (Exhibit G-4, tab 3), and span the time frame of November 1, 2008, to the first week of December 2008. The 10 events listed also include the grievor’s travel for and his participation in NCVM and PIPSC activities. Of the 10 events listed, 7 of them related to the OEE, and of those, 4 were in Calgary/Kananaskis, Alberta, and the other 3 were for Vancouver, Winnipeg, and Toronto.

145        The grievor testified that he did not have any discussion with Mr. Gingras about the cost of weekend stays, although he stated that Mr. Gingras knew that he had family in Saskatoon, Saskatchewan.

146        Ms. Buckley testified that in January 2011, Joe Freamo, the director general of the Audit Branch of NRCan, came to see her because he had been referred a questionable travel claim from her branch. Ms. Buckley stated that she could not recall who referred the specific questionable claim to the Audit Branch, but it was one of the grievor’s travel claims. Ms. Buckley determined in conjunction with Mr. Freamo that they would conduct an audit of the frequent travellers in the OEE, including the travel and travel expense claims of the grievor and three other employees in similar positions.

147        Ms. Buckley stated that Mr. Freamo conducted an audit and provided her with an audit report, which identified 39 items of concern that were not well explained in that there were questions around the length of the travel and the rationale for the travel, as well as the use of vehicles. Ms. Buckley stated that she asked Mr. Burke and the 4 travellers to provide her with explanations of the 39 items of concern. Mr. Burke was away, and as such, Ms. McBride was acting in his stead, and she provided Ms. Buckley with a number of reports. According to Ms. Buckley, with the exception of 5 or 6 items, all the 39 items of concern were explained to her satisfaction. The 5 or 6 items that were not satisfactorily explained were those of the grievor.

148        Ms. Buckley stated that she requested that Mr. Burke, Ms. McBride, and the grievor provide her with more information on these outstanding items such that she could complete her report to Mr. Freamo; however, she never received satisfactory responses. She stated that she believed that Mr. Freamo spoke to Mr. Clement in the security office and that an investigation was launched.

149        The grievor testified that before the audit, his travel expense claims were approved and not questioned.

150        In 2011-2012, Raynald Lampron was the chief of security and emergency operations at NRCan. Mr. Lampron testified that at about the end of March or in early April 2011, he was asked by Mr. Clement if he could undertake a fact-finding process into certain travel expenses claimed by the grievor. Mr. Lampron stated that he was specifically tasked to look at the travel undertaken by the grievor to determine if the travel itself was necessary and if expenses claimed and paid in conjunction with the travel were appropriate. Mr. Lampron testified that he was assisted by Mr. Clement as well as Mr. Alain Joanisse. Mr. Joanisse did not testify.

151        While Mr. Clement did testify, his evidence was limited to those matters referred to with respect to Board File No. 566-02-7742 (one day suspension) and not with respect to the grievor’s travel.

152        Mr. Lampron stated that he reviewed documentation provided to him; conducted interviews with several persons, including the grievor; produced a preliminary report (“the Preliminary Travel Report”) that he provided to the grievor to review; received the grievor’s response to the Preliminary Travel Report (the “Response”); amended his report; and issued a final report in February 2012 (“the Final Travel Report”).

153        The Preliminary Travel Report was not entered as an exhibit by either party; however, the Response addressed all the travel that was at issue and was set out in both the Preliminary Travel Report and the Final Travel Report (Exhibit E-1, tab 7, with attachments, and Exhibit G-5, tab 48, without attachments). Exhibit G-6 is a 31⁄2-inch-thick binder that contains 25 tabs with extensive documents related to the travel issues, including copies of expense reports, receipts, travel itineraries, booking confirmations, and boarding passes.

154        The grievor testified that he reviewed the Preliminary Travel Report and that he provided his Response dated January 4, 2012 (found at Exhibit G-5, tab 43, with attachments, and at Exhibit E-1, tab 6, without attachments). The Preliminary Travel Report identified issues with the following trips the grievor took (while the report does not number the trips, for ease of reference, I have done so) as follows:

1. January 12 - February 3, 2008                  Calgary and Edmonton

2. February 25 - March 17, 2008                   Calgary and Vancouver

3. April 8-13, 2008                                      Calgary

4. April 17-28, 2008                           Calgary

5. May 15-20, 2008                                      Calgary

6. August 7-12, 2008                          Calgary and Vancouver

7. September 19-24, 2008                             Calgary, Edmonton, and Saskatoon

8. September 28 - October 6, 2008      Calgary and Saskatoon

9. November 11-14, 2008                    Calgary

10.November 16-22, 2008                    Vancouver and Winnipeg

11.November 23-26, 2008                    Kananaskis, Alberta (via Calgary)

12.December 21-29, 2008                    Calgary and Saskatoon

13.March 11-14, 2009                         Saskatoon

14.May 19-25, 2009                                      Calgary

15.June 7-11, 2010                             Calgary and Saskatoon

155        After the Response, the investigators were satisfied with information he provided with respect to the trips set out in set out earlier in this decision and identified as Nos. 2, 3, 4, 6, and 15.

156        From the evidence submitted to me, it appears that between January 2008 and June 2010, the grievor travelled 26 times, and that between January 2008 and May 2009, he travelled 22 times.

157        Of the 26 trips that occurred between January 2008 and June 2010, 18 involved travel to Calgary. Of the 22 trips that occurred between January 2008 and May 2009, 17 involved travel to Calgary. Of the 18 trips that involved stays in Calgary, the grievor stayed at his residence on 13 and in hotels on 5.

158        Some of the hotel bills that were submitted with the travel expense claims showed charges for Internet access. Not all hotels charge for that. The grievor did not testify as to whether his residence in Calgary had Internet access.

No. 1: January 12 to February 3, 2008 - Calgary and Edmonton

159        In the Preliminary Travel Report, which was addressed by the grievor in his Response, originally, investigators found that the grievor had claimed $892.21 in expenses to which he was not entitled. These included the following:

i. Flight change cost                                                           $114.65

ii. Sat., Jan. 12, 2008: breakfast/lunch/dinner & incidentals $79.30

iii. Sun., Jan 13, 2008: breakfast/lunch/dinner & incidentals $79.30

iv. Sun., Feb. 2, 2008: breakfast/lunch/dinner & incidentals   $79.30

v. Private accommodation for Jan. 12, 2008                          $50.00

vi. Private accommodation for Jan. 13, 2008                          $50.00

vii. Private accommodation for Feb. 2, 2008                                      $50.00

viii. Extra insurance on rental car for spouse                                    $176.00

ix. Business cards                                                                $210.53

x. Coffee                                                                                      $3.13

160        After receiving and reviewing the Response, of the 10 items set out as inappropriately claimed, 8 were removed, and the only 2 remaining were the $176.00 for extra insurance on the rental car and a $3.13 claim for a coffee. These two items were set out in the Final Travel Report.

161        Upon his arrival in Calgary, the grievor rented a vehicle at the Calgary airport. He paid an additional $11.00 per day to cover the cost of additional insurance if per chance his spouse drove the vehicle. The total cost of this additional expense was $176.00. The grievor stated as follows in his Response: “It is highly likely my spouse may be required to drive the rented vehicle (even to move it out of the driveway if necessary) and would need to be registered for insurance purposes to mitigate risks and is a reasonable precaution and expense.”

162        In his testimony, the grievor stated that this was discussed with Mr. Jago and that he was allowed to add his spouse to the insurance. It was also agreed to remove it if it was not appropriate. This specific issue was put to Mr. Jago, and he stated he did not recall if he had this discussion with the grievor or not as it was well over five years ago. He did state that when he would have looked at the overall claim (for the purpose of approving it for payment), he would have likely seen the car rental receipt but would likely not have reviewed the specifics of it. Mr. Jago stated that he would not have looked in detail at any of the claims of any of the employees who reported to him. In fact, Mr. Jago admitted that he did not notice that the additional driver had been added until he was shown the line amount specifically during Mr. Lampron’s investigation.

163        The grievor testified that the coffee was purchased at a gas station when fuel was purchased for the rental car. He testified that it was not the only time he had purchased coffee when filling up a car with gas, and he stated that he must have missed it when doing up his expense claim.

164        The rental receipt for the vehicle is attached to the Final Travel Report. In addition to disclosing that the grievor purchased extra insurance for his spouse at $11.00 per day, it disclosed as follows:

1. The grievor picked up the vehicle at the Calgary airport on January 12, 2008, at 7:34 p.m.

2. The grievor returned the vehicle to the Calgary airport on Thursday, January 30, 2008, at 2:07 p.m.

3. The weekly cost of the vehicle rental was $167.37.

4. The daily cost of the vehicle rental was $23.91.

5. Over the 17 full days in the grievor’s possession, the vehicle travelled 2953 kilometres.

165        The distance between Ottawa and Regina, Saskatchewan, via the Trans-Canada Highway is 2721 kilometres.

No. 5: May 15 to 20, 2008 - Calgary

166        May 15, 2008, was a Thursday. May 19, 2008 was a Monday and the Victoria Day statutory holiday. The Final Travel Report made a finding based on the documents filed with the expense claim that the grievor obtained his rental vehicle on May 15, 2008, at 10:06 a.m. and that he returned the vehicle to the rental company on the morning of (Tuesday) May 20, 2008, at 10:18 a.m. The flight information on the electronic invoice showed the grievor departing Calgary on May 20, 2008, on the 11:50 a.m. direct flight to Ottawa arriving at 5:40 p.m.

167        The total expenditure claimed by the grievor and found inappropriate by the Final Travel report was $496.65, as follows:

i. Saturday, May 17, 2008: breakfast/lunch/dinner & incidentals    $80.05

ii. Sunday, May 18, 2008: breakfast/lunch/dinner & incidentals      $80.05

iii. Monday, May 19, 2008: breakfast/lunch/dinner & incidentals     $80.05

iv. Private accommodation for May 17-19, 2008, at $50.00 per day $150.00

v. Three days’ extra car rental May 17-19 at $35.50 + taxes per day $106.50

168        In his Response, the grievor’s explanation was that the stay over the weekend reduced the travel cost as a return ticket on the Tuesday (May 20) was much cheaper than a return ticket before the weekend due to seat sales. The grievor also stated that travel approvals were withheld until the last minute.

169        There was no evidence of airfare prices on any of Friday, Saturday, or Sunday, May 16, 17, or 18, 2008.

170        Mr. Jago stated in his interview as part of the fact-finding process that he did not recall ever preapproving any weekend expenditures in favour of the grievor as these were part of his unwritten agreement about staying over in Calgary. In his evidence, Mr. Jago stated that he was certainly not opposed to personal time in Calgary or family time but, “It wasn’t on the clock. It was not to be a cost to the employer.” He stated that if the grievor wanted to spend the long weekend in Calgary that was fine but that they had an agreement that “there was not to be a cost to the employer.” With respect to the extra cost of the car rental, he stated that he was not an auditor and was not clear on what should have been done. If he had returned the car on the Friday, there still would have been a cost for the grievor to get to the airport.

171        Mr. Jago admitted that he signed off on these expenses. He stated that this was a mistake and that he should have been more diligent; he should have looked at the expenses line by line at the time.

172        While the grievor stated in his testimony that he worked on the weekend of May 17 to 19 with the Department of Energy for Alberta, there is no evidence that the grievor was required or authorized to work overtime during the time frame covered by this trip. He stated that by working the weekend, he saved the employer money.

No. 7: September 19-24, 2008 - Calgary, Edmonton, and Saskatoon

173        The grievor departed Ottawa and flew to Calgary on Friday, September 19, 2008. He spent the weekend in Calgary and attended meetings in Edmonton on Monday, September 22, 2008.

174        In an email dated Tuesday, September 16, 2008, at 2:25 p.m. that was sent to Mr. Burke and that copied Mr. Gingras, under the subject line of “Travel Request - Back Up Edmonton September 22, 2008”, the grievor stated as follows:

As discussed with Eric Gingras (Acting Chief), I have a meeting scheduled with McCoy Corp (GM West) see below - who are not part of CIPEC but are expecting to meet with me on Monday, September 22, 2008 in Edmonton before the Oil and Gas Show on the 23^rd and 24^th (now cancelled). I need to know if I am approved to attend this meeting to book my travel now.

Note that I will leave Friday night September 19, 2008 to Calgary (stay Sat. and Sun. at no cost to the department) attend the meeting on Monday September 22, 2008 in Edmonton with a plant tour of Innotec Coatings and Hydraulics Inc. Edmonton and return back to Ottawa from Edmonton on Monday Sept 22, 2008.

175        The grievor claimed breakfast, lunch, dinner, and incidentals for both Saturday and Sunday, September 20 and 21, 2008, at $80.05 per day (for a total of $160.10) as well as $50.00 per day for each of those days pursuant to the TD for a stay in a private accommodation. According to the Final Travel Report, the grievor claimed $260.10 in expenses over those two days that he was not entitled to claim.

176        In his Response, the grievor’s explanation was that the stay over the weekend reduced the travel cost as an airline ticket on the Friday was cheaper than a ticket out on the Monday. In the Final Travel Report, the investigator admits that the grievor provided documentary evidence that the flight selected reflected a lower cost.

177        I was not provided with the evidence of the price of the airfares for either of Saturday or Sunday, September 20 and 21, 2008, or what that lower cost in airfares amounted to.

178        According to the documentary evidence, at the time the trip was booked, just days before departure, there was no evidence that the grievor was going to go to Saskatoon. This change occurred during the course of the trip and is referred to in the Preliminary Travel Report where it states that the original travel itinerary showed a return flight from Edmonton to Ottawa on September 24, 2008 and the grievor travelled to Saskatoon from Edmonton in his personal motor vehicle and returned to Ottawa from Saskatoon on September 24, 2008. Exhibit G-6, tab 17, contains copies of the travel expense claim documents and includes the travel invoice dated September 18, 2008, which shows a departure out of Ottawa on a 7:30 a.m. WestJet flight scheduled to arrive in Calgary at 9:52 a.m. Also at Exhibit G-6, tab 17, is a copy of the travel invoice dated September 22, 2008, showing the grievor’s return travel to Ottawa from Saskatoon on September 24, 2008, instead of from Edmonton.

179        According to the Final Travel Report, the Preliminary Travel Report showed that the grievor’s change of travel back to Ottawa (from Saskatoon as opposed to Edmonton) was inappropriate; however, this allegation was removed from the Final Travel Report by the investigators upon being provided information by the grievor.

180        There is no evidence that the grievor was authorized to work overtime during the time frame covered by this trip.

No. 8: September 28 - October 6, 2008 - Calgary and Saskatoon

181        The grievor’s travel itinerary disclosed that he was scheduled to attend a conference in Calgary and then move on to Saskatoon and Regina for meetings. He was scheduled to depart Ottawa on Sunday, September 28, 2008.

182        On Tuesday, September 23, 2008, the grievor sent Mr. Burke and Mr. Gingras an email as follows:

…

Here are my travel plans for next week, I need to book this week to save on flights, etc. I plan to attend the Pipeline Conference (UO&G) on September 29 to Oct 3, 2008 in Calgary, followed by the LEAN workshops for GM WEST (Saskatoon Oct 1, 2008 and Regina, October 2, 2008). I will attend these events and workshops as they are all close together in distance and time. I will fly to Calgary for the Pipeline conference, then to Saskatoon for the LEAN workshop, driving to Regina for October 2, 2008 returning to Ottawa, which will minimize costs.

183        On Wednesday, September 24, 2008, the grievor sent Mr. Burke an email at 10:58 a.m. (copying Mr. Gingras) as follows:

…

I have sent the travel request to the system, for the Pipeline conference, there will be some travel outside working hours (Sunday September 28/08 (est. 6 hrs), Tuesday September 30/08 (est. 2 hrs) and (driving Saskatoon to Regina) Thursday (est. 3.5 hrs) October 2, 2008. October 3 2008 I will work from Saskatoon, and possibly follow up with General Manufacturing contacts returning Oct 6, 2008, let me know your decision ASAP.

…

[Sic throughout]

184        On Friday, September 26, 2008, Mr. Gingras sent Mr. Burke an email at 7:35 a.m. as follows:

I’ve talked with Angelo yesterday and everything is okay at least on my side.

He already has a couple of meeting [sic] setup for Thursday Oct. 2^nd in Saskatoon but he will take an annual leave on Friday Oct. 3^rd and come back in Ottawa Monday Oct. 6^th There will be no cost to the department for the weekend stay.

185        Mr. Burke emailed Mr. Gingras back at 11:53 a.m. on September 26, 2008, confirming that this was okay with him, and Mr. Gingras forwarded the September 26, 2008, 7:35 a.m. email and 11:53 a.m. email exchange between him and Mr. Burke to the grievor on September 26, 2008, at 1:17 p.m. and simply stated, “FYI Have a great time in Saskatoon! Eric.” The grievor replied a couple of minutes later confirming his receipt of the emails.

186        On the evening of Saturday, October 4, 2008, the grievor attended a 30-year reunion at his high school in Saskatoon.

187        Mr. Gingras testified about those email exchanges. He stated that the emails were clear. The grievor was to take leave on Friday, October 3, 2008, stay over the weekend at no cost to the employer, and travel back to Ottawa on the Monday, October 6, 2008. He stated that it was his understanding that there was no work to be done over the weekend, which is why he wrote, “There will be no cost to the department for the weekend stay.” Mr. Gingras stated that he was not aware that the grievor was going to attend a high-school reunion that weekend. He was not made aware of this either before or after the trip.

188        Exhibit G-6, tab 16, contains the documents related to this travel. On Sunday afternoon, September 28, 2008, the grievor departed Ottawa on a flight to Calgary. He departed Calgary on the afternoon of Tuesday, September 30, 2008, for Saskatoon. According to the car rental receipt, he returned his rental car to the Saskatoon airport on Monday morning, October 6, 2008, at 11:04 a.m., and his boarding pass showed a boarding time of 11:25 a.m. The trip from Saskatoon back to Ottawa on October 6, 2008, had the grievor arriving in Ottawa at 5:15 p.m., and his taxi receipt shows a payment time of 6:27 p.m.

189        The grievor submitted claims for reimbursement and was reimbursed for per diem incidentals for Friday through Sunday, October 3 to 5, 2008, at a per diem rate of $81.55, for a total of $244.65, and claimed 3 days’ lodging in private accommodation for those same days at a per diem rate of $50.00, for a total of $150.00. The Final Travel Report disallowed these claims, which totaled $394.65.

190        The grievor stated in his Response that the evidence that provided that he had agreed to the weekend stay on his own time and costs was taken out of context. He stated as follows:

The Friday work from Saskatoon was originally planned as was the weekend stay and approved (as was past practice and mutual understanding as cost effective). The arduous travel schedule was of no benefit to me personally despite document 26 provided by the investigators and made sense in the context of the amount of travel that had been required since January 2008 and the flexibilities agreed to by former Deputy Director Phil Jago and Director Mike Burke.

Mr. Gingras was aware of the “personal event” on October 4 2008 (document 26 refers) and I explained to him the necessity of my presence in Saskatchewan for both the Friday and weekend stay. Mr. Gingras in an email is quoted as stating “have fun” in which he was referring to the event (hard copy provided). On that particular weekend I met with industry stakeholders on the makeup of Saskatchewan consortiums which was/is different than the models used by CME in other provinces – reflects a small town view of business consortiums with single industry sector representatives per sector. Feedback and notes were provided in the Bi-weekly review IPD, LNCA.

… Note that the travel request was submitted while I was away from the office. Once I returned to Ottawa and explained the work done, Mr. Burke reluctantly signed the Travel expense report as he reluctantly signed all of my travel requests and expense reports.

[Sic throughout]

191        The grievor testified that both Messrs. Burke and Gingras were aware of the personal event (high-school reunion). The grievor explained that over the weekend, he met with industry representatives, including some at his reunion. In cross-examination, the grievor stated that he could not say if he had meetings on the morning of October 6, 2008. He said that he met with industry people at his reunion and that it was in his report and was referred to in his performance review.

192        According to Mr. Gingras when employees returned from trips, he would often informally discuss the business of the trips with them, but as he did not have any financial authority over travel (it was Mr. Burke’s responsibility), he did not get into costs or claims with the employees. Those would be processed in normal course and sent to Mr. Burke.

193        Mr. Gingras indicated both in his interview with the investigators and at this hearing that the grievor never requested, nor did he ever preapprove, any overtime for the grievor when the grievor claimed he was doing overtime while travelling.

194        Mr. Lampron testified that there was no evidence that there was a plan to meet with industry people at the grievor’s high-school reunion or that business was conducted. Mr. Lampron stated that the grievor told him that “events like his reunion was [sic] an accepted way to meet with members of industry,” to which Mr. Lampron testified that he did not agree.

195        Mr. Burke testified that his understanding of the stay for the high-school reunion was that it was personal and that the grievor was taking October 3, 2008 (Friday), as leave. There was to be no cost to the employer. He confirmed he did not discuss travel claims with Mr. Gingras before approving them. He stated he did not take this step because he trusted his employees to submit only legitimate claims, and with respect to the grievor and his weekend stays in Western Canada, there was an agreement in place. He admitted that in hindsight he probably should have spoken to Mr. Gingras; however, he assumed that a change had been agreed to.

196        There is no evidence that the grievor was required to work overtime during the time frame covered by this trip.

No. 9: November 11-14, 2008 - Calgary

197        On Tuesday, November 11, 2008, the grievor was scheduled to depart Ottawa for Calgary on a direct flight that left at 2:05 p.m.; the boarding pass showed a scheduled boarding time of 1:30 p.m.

198        The one issue flagged in the Final Travel Report with respect to this travel was that the grievor claimed a full day’s per diem, including breakfast, lunch, dinner, and incidentals. According to the Final Travel Report, given the scheduled time of the flight, breakfast, in the sum of $13.70, should not have been claimed, given the departure time of 2:05 p.m.

199        Mr. Lampron testified that he gave the grievor the benefit of the doubt with respect to lunch by assuming that he was at the airport two hours before his scheduled departure, which would have had him at the airport at noon. However, breakfast should not have been claimed. According to Mr. Lampron, the grievor told him that he would often go to the airport early and gave as an example inclement weather as a reason for doing so. In his Response, the grievor specifically stated as follows:

Note that I regularly (due to inclement weather, traffic, short timelines, etc.) and the various responsibilities in addition to my substantive as an industry officer I often worked from the Airport from morning or evenings (remotely to NRCan or on Laptop) to avoid any missed flights or late deliverables.

[Sic throughout]

No. 10: November 16-22, 2008 - Vancouver and Winnipeg

200        The grievor’s initial travel itinerary of November 10, 2008, showed he was scheduled to leave Ottawa on Sunday, November 16, 2008, on a 7:20 a.m. WestJet flight to Calgary and connect in Calgary to carry on to Vancouver on a 10:30 a.m. flight. The grievor’s boarding pass for the November 16, 2008, Ottawa-Calgary leg showed a boarding time of 6:50 a.m. His travel from Vancouver to Winnipeg was scheduled for Wednesday, November 19, 2008, at 11:30 a.m., again via Calgary on WestJet, and arriving in Winnipeg at 5:20 p.m. His schedule showed a departure from Winnipeg back to Ottawa on Saturday, November 22, 2008, on a 10:00 a.m. flight scheduled to arrive in Ottawa at 1:22 p.m.

201        On November 17, 2008, while in Vancouver, the grievor changed his travel for his flight from Vancouver to Winnipeg from the WestJet flight at 11:30 a.m. to an Air Canada flight departing at 2:15 p.m. and arriving in Winnipeg at 6:57 p.m. The cost of the change was $446.80.

202        Mr. Lampron testified and the Final Travel Report stated that when the grievor was asked about this change, he said that the conference in Vancouver had ended early. Mr. Lampron’s analysis, based on this statement, was that if the conference in Vancouver ended early, the change would have been to an earlier flight, not a later flight. Mr. Lampron stated that he pointed this out to the grievor in the course of his discussions with him and that the grievor stated that he would get back to him on that. Mr. Lampron indicated the grievor never did.

203        The Preliminary Travel Report also mentioned as follows under the heading for this travel:

On 20 November 2008, Mr. Mangatal attended a meeting of the National Council of Visible Minorities (NCVM) in Winnipeg, Manitoba. The information regarding the recruitment and information event stated the following: Members of visible minority groups in Winnipeg, Manitoba, and the surrounding area. Note: Employment offers resulting from this event will be restricted to members of visible minority groups residing or employed in Winnipeg, Manitoba, and within a 250 kilometre radius of Winnipeg. Mr. Mangatal also met with clients (Incentives GM Penner Doors and hardware and ABCO Supply and Service Ltd) during the afternoon. During witness interviews, it was learned that neither Mr. Gingras nor Mr. Burke had approved his attendance to the NCVM meeting. Although Mr. Mangatal’s presence in Winnipeg was supported by his Thursday and Friday meetings, his attendance of the NCVM without notifying his supervisor of this intended attendance made the endeavour questionable.

204        In his Response, the grievor replied to the part of the Preliminary Travel Report that dealt with the statement found at paragraph 206 of this decision, which addressed the attendance at NCVM meetings but did not address the change of the flight from Vancouver to Winnipeg.

205        The grievor did not address the flight change in his evidence-in-chief. In cross-examination, when he was asked about the change of flights for November 19, 2008, the grievor stated that he was in a meeting with people, and that fact should have been in his Response. When brought to the Response and the reference to this travel and having it pointed out to him that there was nothing there about the change or that he was meeting with people, the grievor responded that there were no documents to show that.

206        At Exhibit G-6, tab 13, as part of the expense claim submitted was the National Car Rental receipt for the grievor’s rental car during the Vancouver leg of this trip. The receipt shows that the vehicle he rented was picked up at the Vancouver airport on November 16, 2008, at 11:43 a.m. and was returned on November 19, 2008, at 11:42 a.m. The grievor purchased gasoline for the rental vehicle, and the invoice shows that the vehicle took 19 litres of fuel that was purchased at 11:30 a.m. The hotel receipt shows that the grievor checked out of the Pan Pacific Hotel at 7:47 a.m.

No. 11: November 23-26, 2008 - Kananaskis, Alberta

207        The grievor’s travel invoice of November 10, 2008, showed that he had arranged his travel such that he was scheduled to fly out of Ottawa on Sunday, November 23, 2008, on a WestJet flight departing to Calgary at 7:20 a.m. and that he was scheduled to return to Ottawa via a WestJet flight departing Calgary early Wednesday, November 26, 2008, at 12:35 a.m. via Toronto, arriving in Ottawa at 9:59 a.m.

208        The grievor’s American Express travel invoice of November 26, 2008 (Exhibit G-6, tab 15), showed that he changed his return flight on November 26, 2008, from the flight departing Calgary at 12:35 a.m. to a flight departing at 6:10 p.m. (almost 18 hours later) and arriving in Ottawa at 11:51 p.m. The cost of this change was $258.41.

209        While in Kananaskis, the grievor stayed at the Delta Lodge. His invoice (Exhibit G-5, tab 15) showed he checked out on November 26, 2008.

210        In his Response to the Preliminary Travel Report, the grievor responded to the change as follows:

...

Again, despite the “witness testimony” the changes were approved, the accommodation and signoffs approved verbally by my Manager and the Director Mike Burke, who was also scheduled to be at the conference but at the last minute reneged on his commitment for reasons previously stated above increasing my workload and creating a situation where I was just too tired to make the late flight milk run. Again as per NJC Travel Directive this change was within policy and approved verbally.

Although the flight change is not outside policy the investigators should note the context in which the travel occurred. Due to my roles at the time in addition to my substantive, Mr. Burke gave no consideration. In fact he managed his budget and met program targets by intimidating and/or showing preferential treatment to employees who would work overtime for free, not claim travel time outside working hours and perform functions outside their responsibilities. Further abuses in managing the workload included abuse of contract employees to perform work assigned to FTE positions purposefully left vacant and pressure employees to take on more work than their substantive on a “voluntary basis”.

Note that the IPD tracking sheet for 2008 (performance of officers) document provided in hard copy which indicates 58 Industry Sector engagements in five months compared to other officers who only had, closest to me 44 and 39 for the entire 12 months work in their sectors.

...

[Sic throughout]

211        The grievor testified that Mr. Burke gave verbal approval to the change of the flight before it was made.

212        Mr. Lampron testified that when responding to his queries about this change during his investigation, the grievor stated that Mr. Burke was supposed to have been at the Kananaskis conference but did not go, and due to his absence, the grievor worked to the point of exhaustion. Mr. Lampron did not believe the grievor’s response as there was no evidence from anyone that the change was preapproved.

213        Mr. Burke provided no evidence on this point.

214        There is no evidence that the grievor was required to work overtime during the time frame covered by this trip.

No. 12: December 21-29, 2008 - Calgary and Saskatoon

215        On December 8, 2008, at 5:12 p.m., the grievor emailed Mr. Gingras (copying Mr. Burke) and attached a schedule for December 2008 meetings and events that he proposed as part of his work plan. His attendance at events was contemplated for December 17 through 19 in Calgary and Edmonton and for December 22 and 23 in Saskatoon.

216        The grievor’s travel invoice, dated Friday, December 19, 2008, showed that he had arranged his travel such that he was scheduled to fly out of Ottawa on Sunday, December 21, 2008, on an Air Canada flight departing to Calgary at 8:25 a.m. and that he was scheduled to return to Ottawa via an Air Canada flight departing Calgary on Monday, December 29, 2008, at 5:35 p.m., and arriving in Ottawa at 11:29 p.m. The travel invoice also showed that the grievor was renting a car for eight days.

217        The December 19, 2008, travel invoice has no travel indicated to or from Saskatoon.

218        The grievor’s travel invoice of Friday, December 26, 2008, showed that he had changed his travel plans and showed an additional travel leg on Monday, December 29, 2008, from Saskatoon to Calgary via Air Canada, leaving Saskatoon at 4:40 p.m. However, this invoice also shows a change to the return flight from Calgary to Ottawa. Instead of being at 5:35 p.m., the Calgary-Ottawa leg was showing a different flight at a departure time of 7:15 a.m. on December 29, 2008, which was impossible since the grievor would not have been in Calgary at that time since he did not leave Saskatoon until 4:40 p.m.

219        This change in flight plan was at a cost of $306.47.

220        The grievor actually flew out of Saskatoon on Tuesday, December 30, 2008, on a 7:45 a.m. flight. This change was due to weather-related issues on Monday, December 29, 2008.

221        The car rental receipt shows a return of the grievor’s rental car to the Calgary airport location on December 22, 2008, at 2:35 p.m.

222        The Preliminary Travel Report also contained the following paragraph under this point, which was removed from the Final Travel Report after the grievor provided investigators with material:

The meeting plan provided by Mr Mangatal to his supervisor did not suggest that any meetings would take place in Calgary, however, it should be noted that the reimbursement request reflected that Mr. Mangatal used a personal motor vehicle to travel to Saskatoon on 22 December 2008 (the day after his arrival in Calgary) at a cost of $ 344.50. Based on the date of travel (22 December 2008) and Mr. Mangatal’s meeting plan (meetings with SaskPower/Sask Energy 22 & 24 December 2008), it is highly unlikely that any meetings took place in Calgary, Alberta on 22 December 2008, therefore Mr. Mangatal should have flown directly to Saskatoon for the registered meetings or not claim [sic] personal motor vehicle mileage for his travel from Calgary, Alberta to Saskatoon, Saskatchewan. Cost of inappropriate mileage is estimated at $ 344.50

223        In his Response, the grievor responded to the claims for this travel as follows:

Item 24. a. above was due to weather during that time – no pre approval was sought but the extra expenses were considered minimal in light of the trip plan and circumstances. The expenses were accepted and approved by the Director Mike Burke- documents reflect Mr. Burke’s signature.

Item b. i. and ii. above work on the days indicated were pre approved via travel request and subsequent reporting post travel were accepted in light of the travel and circumstances. The expenses were accepted and approved by the Director Mike Burke- documents reflect Mr. Burke’s signature (hard copy documents provided).

Item c. above states “... it is highly unlikely that any meetings took place in Calgary, Alberta on 22 December 2008, therefore… not claim personal motor vehicle mileage for his travel from Calgary, Alberta to Saskatoon, Saskatchewan. This is incorrect – industry engagement/meetings took place (hard copy documents provided).

[Sic throughout]

224        Mr. Lampron testified that there was no evidence of any preapproval for the change in travel. December 24 was a Wednesday; Christmas Day and Boxing Day, both statutory and paid holidays, were the Thursday and Friday. Saturday and Sunday were December 27 and 28, 2008, and Monday was December 29, 2008. As the grievor was staying with family, he should not have claimed per diems for the Saturday and Sunday. The extra cost in meal and incidental per diems for December 27 and 28, 2008, was $163.10, and the extra cost in non-commercial accommodation per diems was $100.00.

225        Mr. Lampron stated that he confirmed that there was bad weather so that any extra cost due to the travel being changed from December 29 to December 30 was not due to the grievor’s actions.

226        The grievor’s testimony shed no light on why he changed his flight arrangements for December 29, 2008 (on December 26, 2008), to a departure from Saskatoon as opposed to Calgary. He repeated what he had set out in his Response, which was that it was approved and that Mr. Burke signed off on the travel claim.

227        According to the Final Travel Report, the grievor’s inappropriate claims with respect to this trip totalled $569.57.

No. 13: March 11-14, 2009 - Saskatoon

228        The grievor’s travel invoice of Tuesday, March 10, 2009, showed that he had arranged his travel such that he was scheduled to fly out of Ottawa on Wednesday, March 11, 2009, on an Air Canada flight to Saskatoon at 6:00 p.m. and that he was scheduled to return to Ottawa via an Air Canada flight departing Saskatoon on Friday, March 13, 2009, at 5:35 p.m. via Toronto and arriving in Ottawa at 1:17 a.m. early on Saturday, March 14, 2009.

229        The grievor’s travel invoice of Thursday, March 12, 2009, showed that he had changed his arranged travel such that he was no longer leaving Saskatoon at 5:35 p.m. on Friday, March 13, 2009, but was instead departing Saskatoon on Saturday, March 14, 2009, at 10:30 a.m., again via Toronto and arriving in Ottawa at 6:15 p.m.

230        This change in flight cost an additional $99.97. The grievor claimed the per diem for meals and incidentals for Saturday, March 14, 2009, for a total of $81.55 and additional accommodation in a private residence for one night at $50.00. The total was $231.52.

231        Mr. Lampron testified that when he interviewed the grievor as part of the investigation, the grievor told him he had spoken to Mr. Burke about it; however, Mr. Lampron stated that although Mr. Burke approved the travel claim, he had no recollection of a discussion with the grievor as to why the change was made or justified.

232        The grievor testified that he brought this up with Mr. Burke and that it was agreed to as there was a significant overtime savings.

No. 14: May 19-25, 2009 - Calgary

233        On Thursday, May 14, 2009, at 7:01 p.m., the grievor received an email from the travel centre, which advised that it was unable to confirm his online reservation for travel because the TAN was invalid. The grievor was advised that the airfare quoted online was good only until Friday, May 15, 2009, and would expire on that date and that the airline would cancel his flight. He was required to reconfirm his TAN with the travel centre to remedy the problem. The grievor forwarded this email to Messrs. Burke and Gingras at 9:06 p.m., stating as follows:“The system indicated that my travel was approved for Calgary May 19 to 25, 2009, however, upon booking the travel with the TAN number below the TAN was rejected (see e-mail [sic] below). My confirmed schedule for Calgary is listed below … .”

234        The grievor’s email to Messrs. Burke and Gingras outlined meetings and workshops in Calgary for Wednesday, Thursday, and Friday, May 20 to 22, and the last meeting was listed at between 2:00 p.m. and 3:30 p.m.

235        The grievor’s travel invoice of Sunday, May 17, 2009, showed that he had arranged his travel such that he was scheduled to fly out of Ottawa on Tuesday, May 19, 2009, on an Air Canada flight departing to Calgary at 2:35 p.m. and arriving at 4:57 p.m. and that he was scheduled to return to Ottawa via an Air Canada flight departing Calgary on Monday, May 25, 2009, at 7:50 a.m. and arriving in Ottawa at 1:43 p.m. The May 19, 2009, Ottawa-to-Calgary leg of the trip was booked in business class, and the total return ticket cost inclusive of taxes was $1997.92.

236        On his expense claim form, when claiming reimbursement for the cost of the airfare, the grievor stated, “No overtime authorized to fly outside business hours. Ticket reflects last available ticket for flight during business hours”.

237        The grievor stayed at his Calgary residence during this trip and did not incur hotel costs; however, he did claim the $50.00 per day for staying in private accommodation. In addition to claiming the $50.00 per day for May 19 to 22, 2009, the grievor also claimed the $50.00 per day for Saturday and Sunday, May 23 and 24, 2009, and claimed the per diem for meals and incidentals for the Saturday and Sunday at $83.25 per day for two days for a total of $166.50.

238        Mr. Lampron testified that when he interviewed the grievor about this, the grievor stated that because his managers took so long to approve the travel, the only ticket available was in business class. Mr. Lampron stated that when he asked Mr. Burke why he had approved a business-class ticket, Mr. Burke stated that he did not realize that it was business class as he had never approved business class for travel in Canada. Mr. Burke testified that he did not have authority to approve business-class tickets, and he did not preapprove this expense.

Discipline

239        Mark Corey was, at the relevant time, the assistant deputy minister for the energy sector at NRCan. He stated that he knew the grievor as the grievor was a member of the NCVM and was active in the PIPSC and they were both on the Labour Management Committee for NRCan. He also conceded that he might have met the grievor when the grievor was in the CAP.

240        Mr. Corey was the delegated manager responsible for terminating the grievor’s employment.

241        Mr. Corey testified that he reviewed the Final Travel Report and the Response and that he held a disciplinary hearing on April 13, 2012, before determining discipline. He testified that after the disciplinary hearing, he put together a seven-page summary (“the Corey Summary”). According to both Mr. Corey’s evidence and the Corey Summary, he reviewed both the Final Travel Report and the Response and took into consideration the submissions made at the disciplinary hearing. In the Corey Summary, he stated that when the Final Travel Report and the Response disagreed, he went back to the investigators to confirm whether certain expenditures had been authorized before they were incurred.

242        Mr. Corey stated that when each individual item of inappropriate expenditure is viewed, they are individually small; however, they demonstrate a trend. At paragraph 11 of the Corey Summary, he reflected that what he stated in his evidence was something he found troubling. He explained that the grievor:

1. made sweeping unsupported allegations;

2. stated that the investigation was an attempt by NRCan to intimidate him;

3. stated that the investigators were in a conflict of interest;

4. stated that the comments were out of context; and

5. stated that the investigators were careless and negligent.

243        Mr. Corey noted that the expenditures incurred by the grievor fell into two categories:

1. Those in which the grievor personally benefitted by receiving money (meal expenses, per diem expenses, and charges for staying in his own home) while not on previously authorized government business.

2. Those in which the grievor made choices that were not previously approved by his managers, which incurred additional expenses for the Crown (changes of flights and business-class travel) and from which he did not directly benefit or receive money.

244        According to Mr. Corey, the grievor’s managers acted appropriately when they provided direction on what could and could not be claimed and when they told the grievor he could stay over (in relation to remaining in Calgary or Saskatoon over a weekend); however, those managers failed in their duties and did not exercise due diligence when they received the grievor’s expense claims. That being said, Mr. Corey testified that the lack of due diligence by the grievor’s supervisors did not excuse the grievor’s actions.

245        Mr. Corey stated that his assessment of the circumstances led him to conclude that the grievor misused funds and incurred costs to the employer that were not necessary, both of which demonstrated a disregard with respect to the use of public funds. In addition, he found that the grievor:

1. was insubordinate;

2. had learned nothing from the investigation;

3. had no remorse for what he had done;

4. had blamed everyone else; and

5. had taken no responsibility for his actions, save and except for the improperly charged cup of coffee.

246        According to Mr. Corey, the grievor maintained that everything had been previously approved and that he had prudently spent government funds. Mr. Corey stated that what he took from the grievor’s position and responses was that he would not do anything differently in the future.

247        Mr. Corey stated that he took into account the grievor’s years of service as a mitigating factor and the fact that the managers had signed off on his expenses. He stated that he also took into account the grievor’s disciplinary record, spoke to HR, and sought legal counsel. He testified that he found the grievor’s behaviour particularly troubling. He stated that he considered a period of long suspension instead of termination, but the conclusion he came to was that it would not have had an impact on the grievor’s behaviour. In the end, he found that the grievor’s untruthfulness, lack of personal accountability, and lack of willingness to change satisfied him that the bond of trust between the grievor and employer was broken and that termination of employment was the only outcome possible.

248        Mr. Corey terminated the grievor’s employment on April 20, 2012. In a letter dated that day and addressed to the grievor, Mr. Corey stated in part as follows:

…

I have carefully reviewed the information concerning this matter and I have concluded that there is sufficient substantiation of the allegations that you abused the trust of your managers and incurred costs that you were not entitled to for personal gain. I view your actions to be serious and against the values of the public service.

Before reaching my decision, I have considered mitigating factors such as management’s sign off on your claims. However, this mitigating factor does not lead me to the conclusion that your actions should be excused by virtue of management not having appropriately reviewed your travel expense claims. On a number of occasions over the past year, you have been disciplined for insubordination, with progressive discipline at each step, pertaining to disregard for management’s directions and instructions. Furthermore, the behaviours described in the Final Fact Finding Report demonstrate further insubordination on your part. Management directed in many instances that you should not incur expenses to the Crown and you failed to respect this. You have behaved in a manner that is inappropriate with the nature of your position. Also of significance, you did not demonstrate any remorse or take any responsibility for your actions. This leads me to conclude that you are unlikely to act differently in the future. Your actions have damaged the bond of trust that must exist between you and the Department.

…

249        Mr. Corey also determined that the sum of $1948.88 was due and was owed to the employer as funds that were paid inappropriately for meal allowances, daily per diems for miscellaneous items, accommodations in private residences, and car insurance. This amount of $1948.88 was recovered from pay owed to the grievor, pursuant to the FAA.

Board File No. 566-02-7744 – recovery of money from performance pay

250        The Final Travel Report made a finding that the grievor’s inappropriate expense claims totalled $5078.17. Of the $5078.17, the employer recovered from the grievor the sum of $1948.88, which was clawed back from the grievor’s performance pay for fiscal year 2009-2010.

251        Ms. Vien testified that she was asked to research and evaluate the grievor’s performance pay file and the Treasury Board’s Directive on Performance Pay, as it was applicable to the grievor in accordance with the leadership program directives.

252        The grievor’s salary protection ended on December 2, 2009, and as of December 3, 2009, his salary was at Step 9 of “C” of the CO-02 salary grid (of the relevant collective agreement). Ms. Vien stated it was at this level because he was moving from the PL group and since the PL-06 salary was higher, he moved to the higher salary on the CO-02 grid.

253        Ms. Vien also stated that performance pay is calculated as a percentage of an employee’s salary and is added to that employee’s salary on a going-forward basis. In the case of the grievor, he had received a “met all” on his last performance appraisal before he left the CAP, which equated to a 5% increase in salary. This in-range movement continues until an employee reaches the top of the range, at which point subsequent performance awards are not added to the salary (because the employee is at the top of the range) but are paid out in a lump sum.

254        Ms. Vien testified that the grievor would receive performance pay as a PL but not as a CO-02.

255        Linda Labreque was at all material times a compensation policy advisor at NRCan.

256        Ms. Labreque was asked to review pay calculations with respect to the grievor to ensure that pay rules were properly applied. In short, she testified that she was to review the math to ensure that the salary revisions were done correctly. Ms. Labreque confirmed that the grievor was entitled to performance pay for 2009-2010 but not for the full year: only for a prorated portion of nine months. The nine months equalled the time the grievor was still a PL-06, and as such, his salary increase was based on the performance pay calculation as opposed to an in-range movement on the CO-02 grid. The amount of performance pay owed to the grievor for the 2009-2010 fiscal year was $4427.00.

257        As the grievor had been terminated when the $4427.00 was to be paid, the sum of $1948.88 was deducted from that amount before payment.

Other discipline

258        On April 20, 2011, the grievor was given a one day suspension by Mr. Burke for his failure to attend work related meetings held on April 5, 11, and 12, 2011, as well as mandatory travel training on April 12, 2011.

259        On November 22, 2011, the grievor was given a three day suspension by Ms. McBride for insubordination by refusing to perform work as assigned or attend mandatory meetings and by disregarding deadlines and clear instructions.

260        On December 14, 2011, the grievor was given both a two day suspension and a three day suspension by Ms. McBride. The two day suspension was for misrepresenting facts related to being on leave for union business. The three day suspension was for the failure to provide a medical certificate when requested for leave related to the failure to attend a disciplinary meeting.

III. Summary of the arguments

A. For the respondent

Board File No. 566-02-7742 - one-day suspension

261        The grievor displayed a pattern of intimidation and bullying.

262        A number of instances prompted a fact-finding process by the employer. Ms. McBride testified about the grievor accusing her of mismanagement, without particulars, and raising issues in a loud manner and often storming out of meetings. This was very draining, and it affected her health.

263        Employees approached Mr. Burke and Ms. McBride about the grievor’s behaviour. Employees asked to be moved; they asked to be coached. The evidence of Ms. McBride and of Messrs. Burke and Janecky were all clear examples of the grievor’s behaviour. While some of the grievor’s behaviour was insubordination, some of it was clearly intimidation and bullying. His comments in staff meetings were significant. The staff expected to hear from him and to feel uncomfortable.

264        Ms. McBride stated that she was intimidated by the grievor.

265        Mr. Burke testified that the grievor used vulgar language in a discussion with a colleague, and as such, he could understand how female employees would feel threatened.

266        Mr. Janecky had a confrontation with the grievor. He felt uncomfortable with the grievor and confirmed that the grievor told him that he had his “head up management’s ass.” Mr. Janecky felt that the grievor’s behaviour could escalate. He could hear the grievor raise his voice in Ms. McBride’s office. Mr. Janecky stated that the grievor would discourage other employees from going to training and staff meetings. Mr. Janecky stated that the open-concept office environment allowed staff to hear what was going on and that he could hear the grievor having disagreements. Mr. Janecky recalled hearing the grievor tell Ms. McBride not to get between him and Mr. Burke.

267        Much of the evidence was about the general behaviour of the grievor and how he was a disruptive element in the workplace.

268        The grievor admitted that he spoke in a loud voice and specifically that he raised his voice with Mr. Burke.

269        Paragraph 226(1)(d) of the Act provides that an adjudicator can accept any evidence. Set out at pages 10 to 12 of the 2011 Report are examples of behaviour that were corroborated by the evidence of the employer’s witnesses and that establish the inappropriate behaviour of the grievor. Those witnesses observed the behaviour and were impacted. Those instances that were not corroborated should also be given weight as those instances must be looked at with the totality of the evidence. The employer referred me to Basra v. Attorney General of Canada,2010 FCA 24; Hassard v. Treasury Board (Correctional Service of Canada),2014 PSLRB 32; Pajic v. Statistical Survey Operations,2012 PSLRB 70; and Telus Communications Inc. v. Telecommunications Workers Union, 2014 ABCA 199.

270        Even if some of the evidence is given less weight, there is still sufficient evidence to justify the discipline of a one-day suspension. The behaviour had been ongoing for a long time, and it disrupted the work environment. The grievor engaged in repeated misconduct against both managers and colleagues. Such behaviour is not expected; nor should it be tolerated in a professional work environment.

271        Trust is a cornerstone of any workplace, and the employer needs to rely on an employee’s good judgement and behaviour to foster a collegial workplace. The behaviour of the grievor caused stress, dysfunction, and distress in the workplace.

272        The employer has demonstrated that the grievor acted inappropriately, and as such, the second question to be answered is the appropriateness of the discipline rendered. The employer considered the grievor’s track record and his years of service and that at that time, there was no other discipline on record. At the same time, it considered that the behaviour was not an isolated incident and that it did not occur on the spur of the moment but took place over a long period and was directed against a number of different employees, including managers.

273        The conduct was serious and breached a number of policies, including the V & E Code and the NRCan Prevention of Violence Directive. The grievor failed to observe a common-sense rule regardless of his disagreement with management policies, despite at times wearing a bargaining agent hat.

274        The grievor failed to show any remorse for his behaviour and failed to accept any responsibility. He did not apologize. He did not accept that there was an impact on others. He downplayed his actions and blamed others for his behaviour.

275        The penalty of a one-day suspension was not an economic hardship.

276        The employer also referred me to Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62; Singaravelu v. Deputy Head (Correctional Service of Canada),2009 PSLRB 178; Otis Canada Inc.,[2005] O.L.R.D. No. 4077 (QL); Thomas v. Treasury Board (Revenue Canada - Customs, Excise and Taxation),PSSRB File Nos. 166-02-27608, 28503, 28504 and 149-02-172 (19991105), [1999] C.P.S.S.R.B. No. 124 (QL); and Volvo Canada Ltd. v. C.A.W., Loc. 720, [1990] N.S.L.A.A. No. 12 (QL).

Board File No. 566-02-7741 - termination of employment

277        The grievor was required to travel for his job. He advanced over $5078.17 in expense claims for travel that he should not have made. These claims were without reasonable explanations. These inappropriate claims were serious breaches of the V & E Code and, specifically, of upholding the public trust. A public servant must act at all times in a manner that will withstand the closest scrutiny and will always be in the public interest. The actions of the grievor in making these inappropriate expense claims warranted the termination of his employment under s. 12(1)(c) of the FAA.

278        Counsel for the employer went through each and every alleged inappropriate expense claim as set out in the Final Travel Report and submitted that the grievor did not provide reasonable explanations for the expenses claimed.

279        The grievor and Mr. Jago (his direct supervisor during the period ending in July 2008) had an understanding, given that since the grievor was from Calgary and maintained a residence there, he could spend weekends there when he was in that area as long as it was at no cost to the employer. On a number of the travel claims that were at issue in the Final Travel Report, the inappropriately claimed amounts were often the daily per diem for breakfast, lunch, dinner, and incidentals and the $50.00 per day amount claimed for staying in a private accommodation.

280        The grievor also changed his travel plans, which led to increased additional costs to the employer. On one occasion, the grievor booked a business class seat to travel to Calgary, despite the fact that he was not allowed to travel (at the employer’s expense) in business class.

281        According to the grievor, he was often working while staying over the weekends, and he was not claiming overtime. Other times, the reason given by the grievor for claiming amounts while staying over weekends in private accommodations were the cost differential on airline tickets, depending on the day and time of travel. The grievor claimed that he saved the employer money by travelling when he did, staying over when he did, and not claiming overtime when he was entitled to. The grievor stated that all his travel expenses were approved and that all were signed off.

282        Messrs. Burke and Jago testified that they trusted the grievor and that they did not look closely at the travel expense claims, assuming that the amounts claimed were appropriate. In the case of Mr. Burke, he assumed that the grievor’s immediate supervisor, Mr. Gingras, had reviewed and authorized the travel, the stays, and any changes.

283        The employer submitted that overtime is a different issue. The collective agreement sets out the rules governing overtime, and the grievor, as a PIPSC representative, should have known his rights; he chose not to avail himself of those rights. Just because the grievor chose not to avail himself of those collective agreement rights did not entitle him to claim a set off of the savings of overtime costs to justify his misuse of travel expense claims. Indeed, there is no evidence that work was done on the days on which the breakfast, lunch, dinner, and incidental per diem and the private accommodation per diem were claimed or that the employer ever requested and approved that he work overtime.

284        The grievor’s misconduct in making inappropriate travel expense claims was a serious breach of trust. In some of the claims, he received a personal benefit. By the time the Final Travel Report was issued, the grievor had a disciplinary record of five instances of misconduct amounting to discipline, including insubordination and bullying.

285        The misconduct surrounding the travel expense claims was not an isolated incident, done on the spur of the moment, or an honest mistake. It was 10 separate series of acts over a period of more than a year. The grievor has taken no responsibility; nor has he admitted any mistake in his conduct. Given the nature of the grievor’s work, the employer had a blind trust in him and his judgement. The nature and the frequency of his misconduct make it such that the employer cannot trust the grievor. Trust is integral in the employment relationship; the employer must be able to rely on the honesty of its employees. The grievor has no future with the employer as the employer cannot trust him. The behaviour exhibited by the grievor is inconsistent with the goals and objectives of the employer. His behaviour raises doubt as to his ability to be honest and loyal.

286        The grievor was not a new nor a junior employee but a seasoned public servant and a senior industry officer who was also active as a PIPSC steward and as an officer in the NCVM and who admitted to knowing and understanding the rules surrounding travel. He is not a naïve or gullible employee. He should have known better.

287        While Messrs. Jago and Burke should have been more diligent in their review of the grievor’s expense claims, perhaps noticed the problems earlier, and not approved them, those points do not diminish the fact that the grievor submitted the inappropriate expense claims in the first place.

288        There is no evidence that the grievor was unaware of or did not understand the rules with respect to travel expenditures and claims.

289        There is no evidence that the grievor has acknowledged that he did something wrong, has shown any remorse for his actions, or has learned anything. This demonstrates that the grievor’s behaviour cannot be corrected.

290        The grievor is simply not believable. While he stated that he kept meticulous records, and despite having had a significant amount of time to answer questions about his travel, in some instances, such as the late-December 2008 trip to Calgary and Saskatoon, he made claims for weekend stays after Christmas in Saskatoon at his parents’ home, which coincided with the Christmas statutory holidays. There is no evidence that he was approved to claim additional expenses over this time frame.

291        Nobody can submit inappropriate travel expense claims and disregard the prudent use of public funds and expect to get away with it. The grievor claimed monies he should not have, and he received that money, which amounts to serious misconduct. The termination was warranted and should be upheld, and the grievance should be dismissed.

292        Counsel referred me to Brazeau; Ayangma v. Treasury Board (Department of Health),2006 PSLRB 64, upheld in 2007 FC 780; Way v. Canada Revenue Agency,2008 PSLRB 39; Oliver v. Canada Customs and Revenue Agency,2003 PSSRB 43; King v. Deputy Head (Canada Border Services Agency),2010 PSLRB 125, upheld in 2012 FC 488, and upheld in 2013 FCA 131; Joly v. The Senate of Canada, 2005 PSSRB 28; Juneau v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File No. 166-02-13118 (19820922),[1982] C.P.S.S.R.B. No. 160 (QL); Pinto v. Treasury Board (Revenue Canada, Customs and Excise),PSSRB File No. 166-02-16802, [1988] C.P.S.S.R.B. No. 95 (QL); Bristow v. Treasury Board (Canada Employment and Immigration Commission),PSSRB File No. 166-02-14868 (19850422), [1985] C.P.S.S.R.B. No. 114 (QL); Zakoor v. Treasury Board (Revenue Canada - Customs & Excise),PSSRB File No. 166-02-25882 (19941121), [1994] C.P.S.S.R.B. No. 138 (QL); and Morrow v. Treasury Board (Correctional Service of Canada),2006 PSLRB 43.

293        In the alternative, if termination was not warranted, the employer submits that, based on Lâm v. Deputy Head (Public Health Agency of Canada),2008 PSLRB 61, the grievor should not be reinstated.

Board File Nos. 566-02-7744 – recovery of money from performance pay

294        An adjudicator is without jurisdiction to hear this matter as it does not fall under s. 209(1)(b) of the Act. This was not a financial penalty but a recovery of monies determined owed to the Crown under s. 155 of the FAA.

295        This was purely the Crown recovering monies it had determined were owed to it and were the first available funds the employer owed the grievor. For an adjudicator to have jurisdiction under s. 209(1)(b) of the Act, the employer had to intend to discipline the employee, and the action in this case was not meant as disciplinary. Intent to recover funds is not necessarily intent to discipline. At the time the decision was made, the grievor was not employed by NRCan.

296        A financial loss does not amount to a financial penalty. In support of its position, the employer referred me to Bratrud v. Office of the Superintendent of Financial Institutions Canada,2004 PSSRB 10; Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; Préville v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 94; Hanna v. Deputy Head (Department of Indian Affairs and Northern Development),2009 PSLRB 94; and Attorney General of Canada v. Frazee,2007 FC 1176.

297        Despite that this grievance cannot be referred to an adjudicator under the Act, the grievor could have brought this matter forward to the Federal Court, under judicial review (see Attorney General of Canada v. Assh,2005 FC 734).

B. For the grievor

Board File No. 566-02-7742 - one-day suspension

298        This is a matter of credibility. The grievor submitted that it is his credibility versus that of Messrs. Burke and Janecky and Ms. McBride. It was clear what Ms. McBride thought of the grievor; Mr. Burke suggested that he did nothing when the grievor allegedly said to him that something was “none of his business”, despite being a person in authority. Mr. Janecky did not file a harassment complaint or a grievance despite the grievor’s alleged behaviour; he did not even tell the grievor to stop.

299        A number of serious allegations are set out in the 2011 Report, yet several of those allegations have nothing to do with bullying, harassment, or intimidation. While some have an element of insubordination, that is something different, and it should be dealt with differently.

300        The grievor was not given any details. How does someone defend himself or herself against no detailed allegations?

301        The one-day suspension for alleged misconduct relating to bullying was part of a larger game plan of retaliation against the grievor for his criticism of the department and its managers, which eventually culminated in his termination.

302        The grievor explained that the V & E Code is his bible. However, he did not hesitate to voice his opinion in any forum he deemed necessary. When someone does this, people do not like it. The grievor is not a person who will easily accept “No” as an answer. He is not one to blindly accept answers; however, this is not bullying or intimidation but is leadership.

303        The grievor has been described as a non-performing bully but also as a passionate, loud individual. Passion drives the grievor and drives him in his job, his involvement in the NCVM, and in the PIPSC. His passion for these things has been misinterpreted by the employer as bullying or intimidation. While he could have done things differently, he did things the way he did, which he knew could land him in trouble; that trouble led to his termination.

304        All this started when the grievor voiced his concern about malfeasance in the organization relating to a conflict of interest with respect to a contract.

305        The grievor wore different hats while employed at the OEE — as a senior industry officer, as a representative of the PIPSC, and as an officer of the NCVM. Sometimes the hats got mixed up. When the grievor was acting or talking, was he wearing his PIPSC or NCVM hat as opposed to his employee hat?

306        The grievor arrived as a CAP participant; he got in on his qualifications, yet in two short years, he went from the CAP to the doghouse. Things went wrong when Ms. McBride came on board. She and the grievor did not see eye-to-eye. The grievor asked Ms. Buckley to mediate; she refused.

307        During the course of Ms. McBride’s tenure as the grievor’s immediate supervisor, he received discipline as follows: a one-day suspension for bullying (this grievance), a one-day suspension for not going to meetings, a one-day suspension for refusing to do work, a two-day suspension for misrepresenting facts relating to being on leave for union business, and a three-day suspension for failing to provide a medical certificate. All occurred in a short period.

308        What is odd and somewhat comical is that the grievor was punished, as alleged in this grievance, for being loud and vocal, yet he was also punished for not showing up at meetings, which hence was for insubordination. The employer stated that it wanted him “there” but that it did not want him “there”.

309        The entire process from the outset of the investigation was flawed. The invitation to the November 24 meeting was misleading. The meeting had nothing to do with OHS but was about allegations of misconduct against the grievor. The employer was not being forthright from the start. The grievor requested a bargaining agent representative be allowed to attend with him, which was refused. He requested to leave the meeting and was ordered to stay.

310        At the outset of this hearing, the employer was hiding behind the 2011 Report. No one was scheduled to testify, but at the last minute, Mr. Janecky was brought forward. The employer claimed witnesses were “afraid” to come forward.

311        This discipline was based on nothing but unsubstantiated allegations, which took place over a significant period. Surely, the grievor is entitled to know the allegations against him.

Board File No. 566-02-7741 - termination of employment

312        The grievor was terminated based on the Final Travel Report.

313        The grievor had an agreement with the employer based on an understanding he had reached with Mr. Jago. He could stay at his Calgary residence on weekends and there would be no charge to the employer as long as there was no work to be done. If there was work, he could charge for the cost of staying over weekends. None of this was in writing. The grievor stated that if he claimed expenses, it was because he was working.

314        Mr. Jago apologized after he was told what he did was wrong. The grievor has done nothing wrong.

315        The grievor sees things differently. There was a very informal understanding in place. Mr. Gingras stated that when he took over from Mr. Jago, things remained the same.

316        The grievor did not claim overtime but claimed his expenses when he was working on a weekend. According to the employer, the grievor did this on purpose; he was making money on the process. He stated that he did not do any of this to make money. According to him, his understanding was that he did not claim overtime but instead got to claim his living expenses. That was the arrangement he had with Mr. Jago.

317        The grievor stated that as soon as the initial audit report came out, the employer changed its travel practices, making them more rigorous.

318        With respect to the business-class ticket purchased for the travel on May 19, 2009, the grievor admitted he should have let his managers know that it was the only ticket available, which would have addressed that issue.

319        The grievor submitted receipts for everything he claimed. He was not hiding anything.

320        Of the $5078.17 that the employer claims was inappropriately expensed by the grievor, only $1948.88 was recovered from him. Is the termination based on the $5078.17 or the $1948.88?

321        A poisoned and toxic environment led to a series of disciplinary suspensions in a short period, which was part of a plan to eventually get rid of the grievor.

322        The grievor submitted that of the expenses claimed that were inappropriate, there is not enough to justify the termination of his employment.

323        The employer took into account all the discipline and found that the travel expense misconduct amounted to a culminating incident. The grievor disagreed with this approach.

324        The grievor submitted that if reinstatement to his position is not appropriate, then he should be compensated accordingly (see Bahniuk v. Canada Revenue Agency,2014 PSLRB 73).

325        The grievor also referred me to Cléroux v. Treasury Board (National Defence),PSSRB File Nos. 166-02-25038, 25683 to 25686, 25697 and 98, and 26110 to 26112 (19970423), [1997] C.P.S.S.R.B. No. 41 (QL); Welsh v. Treasury Board (Solicitor General Canada - Correctional Service),2001 PSSRB 29; Charlebois v. Treasury Board (Department of Human Resources and Skills Development), 2006 PSLRB 19; Brecht v. Treasury Board (Human Resources Development Canada), 2003 PSSRB 36; Schenkman v. Treasury Board (Public Works and Government Services Canada),2002 PSSRB 62; Wentges v. Deputy Head (Department of Health),2010 PSLRB 24; Maan v. Treasury Board (Transport Canada),2003 PSSRB 100; Beaulne v. Treasury Board (Transport Canada),PSSRB File No 166-02-27737 (19970923), [1997] C.P.S.S.R.B. No. 100 (QL); and Laurin v. Treasury Board (Revenue Canada),PSSRB File No. 166-02-28147 (19980806), [1998] C.P.S.S.R.B. No. 69 (QL).

Board File No. 566-02-7744 - recovery of money from performance pay

326        The grievor disagreed that this was an administrative action. The recovery of the $1948 came after he was terminated and was a direct result of and was closely related to the discipline.

327        The grievor stated that he did not do anything wrong and that he did not claim a penny he did not think he was entitled to.

328        As this is a direct result of the alleged misconduct and the discipline that arose from it, an adjudicator has jurisdiction.

C. Respondent’s reply

Board File No. 566-02-7742 – one-day suspension

329        Often people do not file complaints, which does not mean that they are not telling the truth.

330        The hearing before the adjudicator was a hearing de novo.

331        The grievor made a complaint about alleged malfeasance. It was dealt with. There was no reason it should have had any impact on the discipline he received for his wrongdoing.

332        While the grievor might have worn multiple hats, so to speak, there are also multiple forums within which the issues that the grievor felt needed to be raised could and should have been raised, other than at staff or division meetings. The grievor was a PIPSC representative and had access to labour-management meetings. Regardless of the hat the grievor might have been wearing at any given time, it did not justify his inappropriate behaviour.

333        The grievor did not just have difficulties with Ms. McBride; he had difficulties with Messrs. Burke, Gingras, and Janecky and Ms. Buckley. To state that because Ms. McBride is gone, the situation will be alright, would not be accurate.

Board File No. 566-02-7741 – termination of employment

334        With respect to the travel arrangement, it was clear.

335        The grievor submitted that there was a “plan” to get rid of him from the start. He had a number of opportunities to collaborate with the travel investigation; he did not.

336        With respect to the submission that there was a lack of due diligence on the part of the employer, it is conceded. However, the expense claims on their face appeared to be appropriate. The claims had to be looked at much closer. The grievor’s supervisors admitted that they should have looked closer.

337        With respect to rehabilitation, the grievor had a number of opportunities to cooperate and refused to. He demonstrated no remorse or responsibility.

IV. Reasons

338        Adjudication hearings with respect to discipline under s. 209(1)(b) of the Act are hearings de novo,and the burden of proof is on the respondent.

339        The usual basis for adjudicating issues of discipline is by considering the following three questions (see Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162,[1977] 1 Can. LRBR 1). Was there misconduct by the grievor? If there was misconduct, was the discipline imposed by the employer an appropriate penalty in the circumstances? If the discipline imposed was not appropriate, what alternate penalty is just and equitable in the circumstances?

Board File No. 566-02-7742 - one-day suspension

340        With respect to this grievance and the discipline out of which it arose, the grievor has been described by several persons, both identified and not identified, in a number of ways. Given the nature of the allegations against the grievor that led to the grievance and discipline, I believe it would be helpful to describe him, as he testified before me for a little more than four days. The grievor appears to be someone who is a little more than average in height and solidly built. He has a deep and booming voice.

341        On March 8, 2011, the grievor was given a one-day suspension for breaching the V & E Code as well as for breaching the NRCan Prevention of Violence Directive based on a finding by Ms. Buckley that evidence gathered in the 2011 Report established that the grievor had demonstrated a pattern of behaviour that was intimidating and amounted to bullying and that was directed to a large number of people, including colleagues and managers. The 2011 Report was based on a fact-finding process conducted by Ms. Leblanc and Messrs. Theocharides and Clement.

342        Based on the evidence before me, it is clear that the fact-finding process was not conducted in a manner that could be considered to have followed the principles of fairness and natural justice. The 2011 Report, despite its length, contains very little in hard facts.

343        It appears from the evidence that the first time that the grievor was aware of the fact that there were complaints or concerns about his behaviour was when he attended the November 24 meeting. When he was sent an email invitation for the November 24 meeting, and when he contacted Mr. Theocharides about the subject matter, he was not advised what the meeting was about or who else was going to attend. It is also clear from the evidence that this was the first time the grievor was advised that there was going to be a fact-finding process or investigation.

344        The fact-finding process that led to the 2011 Report was both ill-conceived and poorly executed. I heard from two of the three investigators and from Ms. Buckley, who also attended the November 24 meeting.

345        Mr. Clement, one of the investigators, initially testified that the interviews of persons for the fact-finding process took place during a two-week period shortly before Christmas of 2010. He then stated that the interviews probably took place in October 2010. He then stated that the only interview of the grievor was the November 24 meeting. Of the November 24 meeting, Mr. Clement stated that the allegations were presented to the grievor as “shouting incidents” and “behaviour in staff meetings”. When he was asked if he put the specific allegations to the grievor, he stated that he did not recall doing that. He also confirmed that the allegations as set out in the 2011 Report were the only allegations ever put to the grievor. Mr. Clement did not state that the allegations as they are set out in the 2011 Report were specifically put to the grievor at the November 24 meeting.

346        Ms. Leblanc testified that the November 24 meeting was supposed to be an interview of the grievor. With respect to the allegations, as they were set out in the 2011 Report and whether they were put to the grievor at the November 24 meeting, Ms. Leblanc stated that they were but also stated that the investigation team had all the allegations as were later set out in the 2011 Report and was ready to share them with the grievor but could not provide any details with respect to the allegations that were being made.

347        Ms. Buckley, who chaired the November 24 meeting, produced her notes (made contemporaneously at the meeting), and she testified that she advised the grievor at the meeting that there were issues that had been raised, that she provided the grievor (at the meeting) with some examples of those issues, and that she advised the grievor that there was going to be a fact-finding process led by the offices of OHS, Security, and LR. Ms. Buckley’s notes (Exhibit E-3) do not disclose that anyone provided the grievor with any details of the specific allegations being made against him.

348        The grievor testified about the November 24 meeting and produced the Mangatal notes. He stated that at the November 24 meeting, he was told some very general allegations about people being afraid of him and that the allegations were made by 12 different people and spanned a number of years. His testimony and the Mangatal notes do not indicate that any particulars of any of the allegations (as eventually set out in the 2011 Report) were put to him at the November 24 meeting.

349        Based on the evidence before me, it is clear that as of the November 24 meeting, an investigation or fact-finding process was well underway, many people had been interviewed, and the purpose of the November 24 meeting (to which the grievor had been given all of five hours’ notice), was to interview the grievor about the allegations made against him as part of the investigation.

350        Ms. Buckley, Ms. Leblanc, and Mr. Clement all described the grievor’s demeanour at the November 24 meeting as being upset, agitated, and aggressive, and he spoke in a loud voice. I suspect being placed in the position that he was, of being called to a meeting on short notice; being provided no information as to the purpose of the meeting; and being in a meeting with four management people, who were accusing him of violence in the workplace and who used terms such as “criminal harassment” and “reporting the matter to the police”, and that the grievor requested representation, which he was refused, likely did cause him to be angry, agitated, and perhaps aggressive and likely caused him to speak in a loud voice.

351        However, the one-day suspension was not for his behaviour at the November 24 meeting but for conducting himself in the manner that was set out in the 2011 Report. The manner of the grievor’s behaviour at the November 24 meeting is not evidence that he was violent, acted in a bullying manner, or was in breach of the NRCan Prevention of Violence Directive or the V & E Code.

352        I do not find that the grievor was entitled to representation at the November 24 meeting. There is nothing in the collective agreement that required the employer to permit the grievor to have a representative accompany him. The document produced by the grievor, the PSC “Recourse: Fact-Finding Meetings”, has no bearing on this matter. It is a document issued by that organization that addresses guidelines with respect to fact-finding processes carried out by the PSC’s Recourse Branch. However, I suspect that if the employer representatives present at the November 24 meeting had acceded to his request, the meeting might have proceeded in a fashion that was more conducive to their stated objective, which was to conduct a fact-finding process and interview the grievor. While the employer witnesses stated that the November 24 meeting was supposed to be an interview, it is clear from the evidence of all witnesses who attended the meeting that no investigation interview (that could have shed light on allegations that had been presented to the investigators up to that point) actually occurred at the November 24 meeting.

353        Misconduct in a place of employment is a serious allegation against any employee. Violence and bullying is inappropriate in any setting. When an employer goes so far as to suggest that an employee is acting in a manner that would amount to violence or bullying, then that employer is making a most serious accusation against the employee. It is incumbent on the employer to properly investigate those accusations and determine what is fact and what is not. While all employees are entitled to a safe and healthy work environment, those same employees are entitled to be free from discipline that is based on rumour, innuendo, perception, and misperception. We are centuries past the days of the medieval Star Chamber.

354        Many of the allegations set out in the 2011 Report, save and except those portions that identify Ms. McBride and Mr. Burke, are lacking any specifics and, some have absolutely nothing to do with the NRCan Prevention of Violence Directive or the V & E Code. The following bullet points (or portions), which are part of the 27 bullet points, on their face are perceptions that people have about the grievor or perceptions of management (as opposed to the grievor) that even if true would not amount to a breach of the NRCan Prevention of Violence Directive or the V & E Code:

10      It is perceived by several colleagues that Mr. Mangatal is a powerful person in that he thinks he has easy access to senior management (i.e. ADMs, DM).

…

13      Mr. Mangatal often talks about his prominence in PIPSC (i.e. refers to his role as president).

…

15      Some have stated that Mr. Mangatal constantly gives unwanted advice; he tells some people that they are being taken advantage of.

16      Others feel that Mr. Mangatal’s behaviour is condoned by management as nothing is seen to be done to correct it.

355        When the employer’s witnesses were posed the question of why more specifics about the allegations were not provided (either in the 2011 Report or at the November 24 meeting), the answer they provided was that people were afraid or that the grievor would have known who was making the allegations. This is nonsense. Without disclosing to the grievor specifics of the allegations, he is hardly in a position to respond. Both Ms. Leblanc and Mr. Clement, who participated in interviewing witnesses for the fact-finding process that led to the 2011 Report, testified that they took notes of the interviews. They obviously had more information about some of the allegations, the very least of which was who was making the allegations and who the alleged victims of the alleged incidents were, as well as perhaps more specifics of the actual alleged incidents. This information was kept not only from the grievor but also from this hearing.

356        The employer witnesses who were responsible for managing the fact-finding process were prepared to accept, unconditionally, allegations against the grievor. This is indeed a dangerous precedent to set. If this practice is allowed to stand, in essence, anyone could make any allegation against a co-worker, which could be without merit, and that would then lead to the alleged perpetrator of misbehaviour being punished. This is certainly wrong and dangerous.

357        Context is important. As I noted, the grievor has a deep and booming voice, and a number of the allegations against him use the terms “loud”, “yelling”, or “passionate”. Perhaps the grievor was yelling, or perhaps he was just loud because of his deep and booming voice. While yelling at someone is not appropriate and would be a breach of the V & E Code and likely could be a breach of the NRCan Prevention of Violence Directive, having a deep and booming voice would not be.

358        The grievor, so to speak, wore a number of hats; he was not just a senior industry officer but a PIPSC representative and a member of the executive of the NCVM. At any given time, he might (or might not) have been engaged in activities relating to his position as a PIPSC representative or a member of the executive of the NCVM. What he was doing at any particular time could determine if he was giving advice (that might or might not have been wanted) relating to work or rights issues. This is not to say that the grievor’s behaviour, if it was inappropriate, should be condoned; it should not. What it is to say is that before one accepts that the grievor has conducted himself in a manner that imperils him to discipline, the context of the allegations should be provided to him, and he should be permitted the opportunity to give his side of the story. Many of the 27 bullet points are vague statements that provide too little detail to allow someone to answer. Missing are the who, what, where, how, and why. Anyone reading the 27 bullet points could interpret them in any number of countless ways.

359        As stated, hearings such as these are hearings de novo, and the burden of proof is on the employer. If the employer chooses to lead as evidence only the investigation report as proof of the facts of its contents, then it does so at its own peril. It is trite law that an investigation report is mere hearsay. While in many discipline cases a decision maker may rely on the information contained in an investigation report as the basis for the discipline, that information must be accurate. In proceedings before adjudicators of this Board (and its predecessor boards), the facts as set out in such investigation reports must be proved to the trier of fact. The actual evidence, be it the oral testimony of witnesses, documents, photos, videos, or other things, must be brought forward and shown to be true and must be subject to testing on cross-examination.

360        Bullet point 7 of the 27 bullet points states in part that: “On one occasion of bullying, Mr. Mangatal admitted to having ‘snapped’ and apologised to the employee in question.” The grievor admitted in his evidence what happened. He stated that by chance, he saw some work product on a photocopier that was missing contributions from him and other colleagues. He stated in his evidence that he told the person who was responsible for the work product:

1. that they had excluded his work and that of colleagues on purpose;

2. that he did not believe the explanation given (that it had not been intentional);

3. that their actions were despicable and that the person knew what they were doing;

4. that their actions were deliberate; and,

361        He also testified that he made the person who was responsible for the work product very upset and made that person cry.

362        This admission by the grievor of what occurred relating to bullet point 7 fits into the definition of bullying under the NRCan Prevention of Violence Directive. It was deliberate, intimidating, and cruel. It also breached the value and ethic of the V & E Code that states that as a public servant, the grievor (as are all public servants) was to demonstrate respect and courtesy in dealings with fellow public servants. Treating this colleague in the manner in which he admitted he did did not demonstrate respect and courtesy.

363        Ms. McBride, Mr. Janecky, and Mr. Burke all described what they witnessed of the grievor’s behaviour at meetings, including OEE staff meetings. While all three readily admitted that the grievor did not always attend those meetings, all three described the grievor’s behaviour at staff meetings as being disruptive and disrespectful. Mr. Janecky and Ms. McBride both stated that the grievor would rant and storm out of meetings. The grievor did not present any evidence with respect to not acting in the manner that was suggested by Ms. McBride and Mr. Janecky. The grievor might have worn a number of different hats, and as a PIPSC representative, a certain amount and level of fervent and passionate argument on matters would not only have been appropriate but could have or even would have been expected, and perhaps the points he was raising at these meetings were better left for other times. However, despite the different hats he might have worn, there is no reason that opinions and arguments cannot be made in a respectful manner, in whatever forum. That being said, not all meetings are appropriate for all subjects, and it was not demonstrated by the evidence before me that these actions of the grievor at OEE meetings were related to him acting in his capacity as a PIPSC representative or representative of the NCVM. The grievor’s behaviour as described, with respect to ranting and storming out of OEE meetings, certainly did not exhibit respectful behaviour towards colleagues and as such breached the V & E Code.

364        Mr. Janecky was brought to bullet point 3 of the 27 bullet points, which states: “One saw Mr. Mangatal move closer to a colleague. He was in his face. The colleague argued back, which was not like him as he is considered to be a gentle person. They felt very uncomfortable.” Mr. Janecky stated that he was the person to whom this encounter refers. He testified that this encounter occurred as a result of the grievor agreeing to take over an event when Mr. Janecky had been double-booked, only to tell Mr. Janecky weeks later that he was not going to do it. When Mr. Janecky went to speak to the grievor about it, the grievor was confrontational; he got in Mr. Janecky’s face and suggested that Mr. Janecky had his “head up the manager’s ass.” Mr. Janecky testified that he was concerned about his safety and the escalation of the situation and as such went home as he was afraid a fight was going to happen if he did not leave. The grievor’s response to this allegation was that he denied making the statement referring to Mr. Janecky having his “head up his manager’s ass.”

365        The grievor denied making the statement, “head up his manager’s ass”, but did not deny the balance of the incident. The incident was described in sufficient detail by Mr. Janecky such that the grievor should have been able to recall it. It is clear that Mr. Janecky, who once described his relationship with the grievor as good, was upset and troubled by the incident. The behaviour, as described by Mr. Janecky, clearly was a breach of both the NRCan Prevention of Violence Directive and the V & E Code.

366        Ms. McBride and Mr. Janecky both described behaviour the grievor exhibited towards Ms. McBride. The evidence before me indicates that the relationship between the grievor and Ms. McBride was rocky at best. Ms. McBride freely admitted to using foul language and calling the grievor a liar in front of her division and refused to apologize. While Ms. McBride’s comments were not acceptable, an outburst such as this in front of subordinates is something that is clearly out of the ordinary, and I suspect, when it was said (albeit after the discipline rendered with respect to this grievance), it lent a certain level of credibility to the allegations of the grievor’s behaviour towards Ms. McBride, as it is highly unusual for an office manager to act in such a manner in front of his or her division.

367        Ms. McBride described the physical and mental toll dealing with the grievor had had on her. Mr. Janecky described the demonstrable physical deterioration he saw in Ms. McBride, describing her as a “casualty of the grievor’s behaviour.” Mr. Janecky stated that he heard the grievor yelling at Ms. McBride in her office. He stated that it disrupted work and went so far as to state that it was “difficult to focus on your work when there is so much drama.”

368        The treatment the grievor displayed to Ms. McBride was similar in nature to the behaviour that he was described as exhibiting towards Mr. Janecky (bullet point 3) and the unidentified colleague at the photocopier (bullet point 7). It was behaviour that meets the definition of bullying: it was cruel and was meant to be intimidating. It was also behaviour that certainly did not coincide with the value and ethic of treating colleagues in a manner that is respectful and with courtesy, as set out in the V & E Code.

369        Some employees can be challenging for managers in many different ways, and some of the allegations put forward in the 2011 Report, as well as some of the evidence provided by Messrs. Burke and Janecky and Ms. McBride relating to what was in the 2011 Report, suggest other issues with the grievor relating to the work environment. However, that does not equate to violence, bullying, or disrespectful behaviour or a breach of the NRCan Prevention of Violence Directive or of the V & E Code. I also heard evidence about the level of the grievor’s work performance. This is irrelevant to the discipline rendered on March 8, 2011.

370        As I am satisfied that the employer has proven a number of instances during which the grievor’s actions amounted to a breach of either or both the NRCan Prevention of Violence Directive and the V & E Code, therefore, it has established that the grievor committed misconduct.

371        The penalty was a one-day suspension. The grievor put forward many certificates with respect to his achievements. Before this discipline, he had a discipline-free record. Given the seriousness of the misconduct and the importance of eradicating violence and bullying not only in the workplace but as a general proposition, despite the mitigating factors mentioned, I see no reason to interfere with the penalty.

372        The grievance shall be dismissed.

Board File No. 566-02-7741 - termination of employment

373        The grievor’s work entailed a significant amount of travel (from his home and place of work in Ottawa), primarily to western Canada and primarily to Calgary, where he maintained a residence. His travel was mainly by air and often involved the rental of a vehicle.

374        Travel for work from Ottawa to places like Calgary, Edmonton, Regina, Saskatoon, and points thereabouts and further west present a scenario under which a minimum two out of the five regular workdays would be taken up with nothing but travel.

375        The grievor’s hours of work were dictated by his collective agreement. Article 8 of the collective agreement provided that his normal workweek was 37.5 hours per week, Monday through Friday, between the hours of 7:00 a.m. and 6:00 p.m., exclusive of a meal period.

376        The overtime provisions of the collective agreement did not apply to the grievor as the evidence before me disclosed that before joining the OEE in December 2007, he was part of the CAP, and his position was classified PL-06. Pursuant to the Directive on LDP-MTP-CAP, as a PL-06, he was not entitled to be paid overtime. Instead, he was entitled to performance pay. When the grievor joined the OEE, he left the CAP and his PL-06 position and at the OEE became a senior industry officer at the CO-02 group and level. However, the salary at the CO-02 level was lower than that of PL-06, and as such, pursuant to the Directive on LDP-MTP-CAP, the grievor was salary protected at his PL-06 position. This salary protection remained in place for two years, expiring in December 2009 (which was after the period at issue with respect to the Final Travel Report). Therefore, the grievor continued to be paid as a PL-06 and continued to be entitled to be paid performance pay; however, he did not get paid overtime.

377        During the course of the hearing, and in some of the documents, it was noted that on some occasions, the grievor stated that he was working on a Saturday or a Sunday but was not claiming overtime. Other than the grievor’s statement to this effect, I was not provided any evidence of the employer requiring him to work overtime or that he was actually paid for working overtime during the period at issue with respect to the Final Travel Report.

378        The evidence before me established that during the time frame between January 2008 and May 2009, the grievor, subject to the approval of his supervisor (whether Mr. Jago or Mr. Gingras), would establish a work plan, which could and did often involve a significant amount of travel. Due to the nature of the non-government organizations that the work of the OEE often entailed being with, the grievor’s work and his travel could be dictated by events outside his control. That being said, the undisputed evidence was that he determined his work and travel schedule. He determined what events and workshops to attend on behalf of the OEE, and in turn, he determined what airlines and flights to take, on what days, and at what hours.

379        The grievor often made statements either in his Response or in his testimony that all travel changes were approved. Sometimes, his statements were to the effect that the approval was verbal, and sometimes, he stated that the changes were approved, while not being specific if he meant before the actual change was made or if he was referencing the approval of his travel claims after the fact. Mr. Burke testified that he carried a Blackberry, as did Mr. Gingras and his COs, including the grievor. The grievor testified that he carried a laptop. What is striking in the evidence relating to all the flight changes that occurred in the grievor’s travel is that there is not one email between the grievor and Mr. Burke or Mr. Gingras relating to the flight changes. I would have expected that this would have been not only the most logical way to send requests and receive replies but also the safest as it would have produced a written record of the request and authorization (to incur the costs associated with the change.) There would have been no issue as to whether approval had been sought and whether it had been approved.

380        I heard no evidence about how the two major airlines that the grievor used (Air Canada and WestJet) determine their prices; nor did I hear or see any evidence of the difference in prices that the grievor often spoke of in his testimony. Once a trip had been approved by his supervisor, the grievor took care of his own travel arrangements. He determined when he would leave and when he would return and was responsible for the purchase of the airline tickets.

381        Section 3.3.11 of the NJC TD provides that the standard for air travel is economy class, that the lowest available airfares appropriate to particular itineraries shall be sought, and that bookings shall be made as far in advance as possible.

382        Section 3.3.1 of the NJC TD also provides that when travelling on employer business, an employee is entitled to stay in a single room in a safe environment conveniently located and comfortably equipped (essentially a hotel or motel —depending on where the employee is). It also provides as an alternative to staying in a commercial establishment staying in a non-commercial accommodation (essentially a house or apartment of a friend or relative). When staying in a non-commercial accommodation, a traveller is entitled to claim and be paid a rate set out in Appendix C of the NJC TD. That rate for the time frame covering the issues raised in this hearing was $50.00 per day.

383        It is not disputed that the grievor maintained a residence in Calgary and had extended family in Saskatoon. When in either of these cities and travelling for and conducting business on behalf of his employer, he was entitled to stay either at an appropriate hotel or, as an alternative, at his home or a private accommodation (if available). If the grievor stayed in a hotel, the cost of the hotel room and incidental costs (taxes and fees related to the room) would have been covered and reimbursed by the employer, recognizing however that not all costs incurred in a hotel are reimbursed by the employer. While staying in his own residence in Calgary or with his extended family in Saskatoon, the grievor was entitled to be paid the appropriate non-commercial accommodation per diem of $50.00.

384        As the grievor had a residence in Calgary and family in Saskatoon, it was also not unreasonable for him to spend some spare time in those places, such as over a weekend. However, that could be said of anyone travelling anywhere, whether they are staying in a hotel or motel or with family or a friend. When the end of the day arrives on Friday, rather than fly home on the Saturday, they extend their stay in whatever destination they are, returning home on the Monday. The issue is, quite simply, what constitutes an expense appropriately charged to and recoverable from the employer during the trip, and what is personal?

385        COs at the OEE, subject to the collective agreement, work a 7.5-hour day, Monday to Friday. If a CO is at a conference for the OEE in a city other than Ottawa and the conference ends at 5:00 p.m. on a Friday, that employee, if required to be at that conference, would be entitled to any overtime after his or her normal 7.5 hours of work on that Friday. If the employee caught an evening flight out of that city back to Ottawa, he or she would be paid at the appropriate overtime rate as set out in the collective agreement pursuant to those provisions that deal with overtime and travel. However, that same employee likely would not necessarily be required to travel back to Ottawa on the Friday evening and would likely have had approved a return on the following (Saturday) morning. That employee, whether or not subject to the collective agreement, would still be entitled to be reimbursed for the cost of the hotel room and the daily per diems for breakfast, lunch, dinner, and incidentals (depending on the time of the return home) and would be entitled to be paid, again according to the appropriate articles of the collective agreement dealing with overtime and travel. If every event ended on a Thursday, there would be no issue, as Friday would be a travel day.

386        The only difference between the grievor and the other COs at the OEE was that he was not entitled to be paid overtime. What was exactly the same for both the grievor and his colleagues (who would have been entitled to claim overtime) is that all were responsible to get their work and travel approved ahead of time, they were responsible to book their travel, and they were entitled to be reimbursed in the same manner.

387        When the grievor, or any other CO from the OEE for that matter, travelled, he chose flights to and from the destinations. He also booked his accommodations. When the grievor chose to stay in either Calgary or Saskatoon over a weekend and to return home on a Monday, that was his choice. There was no evidence that his employer required him to do that. He was in no position different from any other CO of the OEE who might have decided to spend a weekend somewhere rather than return home at the end of business on a Friday or on the Saturday morning (assuming business was completed). Any costs incurred for such an extended stay would be personal. The employee would not be entitled to the meal and incidentals; nor would the employee be entitled to claim the cost of the hotel, motel, or private accommodation.

388        Mr. Jago stated in his evidence that he had an arrangement with the grievor that the grievor could stay over weekends, as he knew the grievor had family out west and had a residence in Calgary. He was firm in his evidence that it was as long as it was at no cost to the employer. This makes perfect sense.

389        The grievor’s evidence on this was not clear at all. When this was put to him, all he stated was that he was entitled to claim the daily per diems for meals, incidentals, and non-commercial accommodation on the weekend as he was working and that it was appropriate under the NJC TD to stay at private residences. The grievor’s evidence was not only sketchy but skirted the actual question as to what the arrangement was. Why would any of Messrs. Jago, Burke, or Gingras care if the grievor, who had a residence in Calgary and family in Saskatoon, spent his weekends there instead of in Ottawa? The simple answer is that they did not care. It was the grievor’s time, and it was his business what he did on his personal time. The employer has a responsibility to pay for the appropriate expense to bring the grievor home from whence it sent him for work and for the appropriate costs related to the stay away from Ottawa. A return trip could be on a Friday night, a Saturday, a Sunday, or a Monday. Either the employer or the grievor could have insisted that he return on a Saturday after business concluded on a Friday; however, given the grievor’s wish to spend time with family, either in Calgary or Saskatoon, it really was no concern to his employer if he stayed and returned on the Monday (or Tuesday if it was a long weekend) as it was required to bring him back to Ottawa in any event.

No. 1: January 12 to February 3, 2008 - Calgary and Edmonton

390        During this trip to Calgary and Edmonton, the grievor required the use of a rental car, and he rented one for 17 full days. There are two issues that arose out of the car rental. The simpler of the two is the claim for the coffee.

391        When renting a vehicle, it is standard practice that the vehicle is returned to the rental company with a full tank of gas. The grievor did just that, and when refueling, he purchased a coffee and paid for it at the same time, via credit card. When being reimbursed for his travel for this trip, the grievor received reimbursement for the $3.13 for that coffee. He stated that he would often purchase coffee when at a gas station, and it was inadvertent that he did not realize when he submitted his claim that the coffee was included on the fuel receipt. I accept the grievor’s explanation with respect to the coffee. It is not uncommon for persons travelling to make purchases when refuelling. I am prepared to give the grievor the benefit of the doubt as this is something inadvertent that anyone could do. It does not mean the grievor was entitled to keep the $3.13, just that I do not believe there was misconduct related to this purchase.

392        The second issue is not as straightforward. The grievor spent the majority of this trip in Calgary and went up to Edmonton for only 2 of the total of 22 days. At the time the grievor rented the vehicle, he added as an insured driver his spouse. This additional insurance was at a cost of $11.00 per day (plus taxes) for a total cost to the employer of an additional $176.00. The grievor stated that he spoke to Mr. Jago about this and that it was an approved expense. Mr. Jago has no such recollection. The grievor’s explanation was that if the vehicle needed to be moved, even if it was just to move it around or out of the driveway when he was away from his residence (where he was staying while in Calgary), his spouse could move the car, and if there was damage, it was covered. This explanation does not make any sense. A close look at the car rental receipt indicates that the vehicle was rented for 17 full days. The grievor’s Response detailed that he was in Edmonton on Thursday and Friday, January 30 and 31, 2008. The vehicle rental receipt detailed that the vehicle was returned to the Calgary airport before he departed for the Edmonton leg of his trip.

393        Given that the grievor was in Calgary on his employer’s business and had rented the vehicle for assisting him in his duties of carrying out the employer’s business, the vehicle should have been with him at all times; there would have been no reason whatsoever for his spouse to be driving the vehicle.

394        The entire story about getting the insurance for his spouse makes no sense whatsoever, unless the grievor’s spouse was using the vehicle. The car should have always been in the grievor’s possession, either when he was conducting his employer’s business or at his residence, and hence, it would have been covered by the insurance maintained under his name. If it needed moving in his driveway, he could have done that.

395        What is also troubling is that the car rental receipt also indicates that the vehicle travelled 2953 kilometres in the time frame of the rental. The distance between Ottawa and Regina via the TransCanada Highway is only 2721 kilometres. This begs the question as to where the vehicle was, who had it, and where was it going. The grievor did not explain why the car had so many kilometres. In the absence of an explanation from the grievor, it could be inferred that he and his spouse used the vehicle for other than employer business.

396        The charging of the $176.00 for insurance for his spouse was a breach of the NJC TD; it was not for work-related purposes, and it was inappropriate.

No. 5: May 15 to 20, 2008 - Calgary

397        This trip spanned the Victoria Day statutory holiday long weekend. The grievor’s travel brought him to Calgary on Thursday, May 15, 2008, where he conducted business on the Thursday and Friday (May 16, 2008). May 17, 18, and 19 were the Saturday through Monday of the long weekend. The grievor departed Calgary on Tuesday, May 20, on the 11:50 a.m. flight direct to Ottawa. While in Calgary, he rented a vehicle, which he returned to the Calgary airport on Tuesday, May 20, 2008.

398        While in Calgary, the grievor stayed at his home. He claimed reimbursement from his employer of the non-commercial accommodation per diem of $50.00 for each day from Thursday, May 15, through and including Monday, May 19, 2008. He also claimed reimbursement from his employer of the daily meal allowances and the incidental allowance.

399        The Final Travel report found that the claims for the private residence accommodation for the Saturday, Sunday, and Monday (May 17 through 19, 2008), as well as the claims for the meal allowances and incidental allowances for those days and the cost of the vehicle rental, were inappropriate. I agree. Unless the employer required the grievor to be in Calgary for those days, and there was no evidence that it did, I find that the stay over the weekend was personal in nature, and as such, the employer should not have been asked by the grievor for the reimbursement of these claims. This clearly was a breach of the NJC TD and amounted to fraud against his employer.

400        Mr. Jago stated that with respect to the car rental, he approved that because the grievor would have had to find a way to the airport in any event. I disagree with this reasoning. If the grievor had not stayed over the long weekend for his personal benefit, he would have flown back either the Friday night or the Saturday. He would have been at the airport when he returned the car. While this is a somewhat logical assumption, getting to the airport on the Tuesday was a cost he voluntarily assumed by being on his own time.

No. 7: September 19 to 24, 2008 - Calgary, Edmonton, and Saskatoon

401        The evidence disclosed that the grievor had originally had business in Edmonton from Monday, September 22, to Wednesday, September 24, 2008; however, the business on September 23 and 24, 2008, was a trade show and either it was cancelled or the grievor’s attendance at it was cancelled (this was not entirely clear). The grievor wrote to Mr. Burke (copying Mr. Gingras) in an email dated September 16, 2008, confirmed the cancellation of the September 23 and 24, 2008, trade show, and confirmed his attendance in Edmonton for meetings on Monday, September 22, 2008. The grievor stated in this email as follows:“Note that I will leave Friday night September 19, 2008 to Calgary (stay Sat. and Sun. at no cost to the department) [and] attend the meeting on Monday September 22, 2008 in Edmonton with a plant tour… .”

402        The grievor claimed and received reimbursement for his stay in Calgary on Saturday and Sunday, September 20 and 21, 2008, which was a total of $160.10 for the meal and incidental per diems and $100 for two days of non-commercial accommodation allowance per diem. There is no evidence that the grievor was required to travel to Calgary on the Friday, and in fact, the opposite appears in his email to his superiors. He specifically states that there will be no cost to the department. He should not have charged these amounts to the employer.

403        While the grievor stated that there was a savings in the cost of flights, the amount of this savings was not put forward. Nor was it suggested anywhere that the grievor’s stay in Calgary would be at the cost of the employer because the savings in cost of the airline ticket far outweighed the per diems being incurred.

404        The grievor stated categorically that there would be no cost to the employer and then turned around and specifically claimed the amounts from the employer, which benefited him to the sum of $260.10. This clearly was a breach of the NJC TD and amounted to fraud against his employer.

No. 8: September 28 - October 6, 2008 - Calgary and Saskatoon

405        Between Tuesday, September 23, 2008, and Friday, September 26, 2008, a series of emails were exchanged (with respect to this trip) between the grievor and Messrs. Burke and Gingras. On Sunday, September 28, 2008, the grievor was travelling to Calgary for business and then was moving on to Saskatoon and Regina, where he had further business. He was to spend the weekend of October 4 and 5, 2008, in Saskatoon and fly back to Ottawa on Monday, October 6, 2008.

406        The essence of the email exchange disclosed that the grievor would take annual leave (vacation) on Friday, October 3, 2008. On Saturday, October 4, 2008, the grievor attended a 30-year high-school reunion. He claimed the meal and incidental per diems for the Friday, Saturday, and Sunday for a total of $244.65, as well as the non-commercial accommodation per diems (times 3) for a total of $150.00. According to the Final Travel Report, the amounts claimed, totalling $394.65, were inappropriate and should not have been claimed and reimbursed to the grievor.

407        The grievor stated that it was agreed that these were authorized expenditures, suggesting that meeting people at his high-school reunion who were engaged in the natural resources sector that he was responsible for was work related. I disagree. The grievor was on vacation on Friday, October 3, 2008. The Saturday 30-year high-school reunion was not a work-related event sanctioned by his superiors. There were no documents that suggested that this was a planned event that the employer was prepared to send the grievor to and to cover the cost. While it may be true that some persons who attended the event (from the grievor’s past and high school) were involved in the natural resources sector in Western Canada for which he was responsible, that did not make it work related and did not somehow permit the grievor to claim his expenses for the weekend. The employer did not require him to go to the event. The amounts claimed for the weekend stay were clearly a breach of the NJC TD and amounted to fraud against his employer.

No. 9: November 11-14, 2008 - Calgary

408        On Tuesday, November 11, 2008, the grievor was scheduled to fly out of Ottawa and did fly out of Ottawa to Calgary on a flight that left at 2:05 p.m. He claimed a breakfast meal per diem for that day in the sum of $13.70.

409        In his Response to the Preliminary Travel Report, the grievor stated as follows with respect to this claim:

Note that I regularly (due to inclement weather, traffic, short timelines, etc.) and the various responsibilities in addition to my substantive as an industry officer I often worked from the Airport from morning or evenings (remotely to NRCan or on Laptop) to avoid any missed flights or late deliverables.

[Sic throughout]

410        This comment by the grievor in his Response is void of merit. His flight was at 2:05 p.m. There was absolutely no evidence that there was a weather or traffic issue. With respect to the latter (traffic issue), it is no mystery that a large segment of Ottawa’s workforce are federal public servants who, by virtue of that fact, have November 11 as a day off work, as it is Remembrance Day. Businesses are closed until after the 11:00 services. It is also no mystery that this fact generally leads to less traffic. Also with respect to the issue of traffic, there was no evidence that there was some reason that the grievor needed to be at the airport first thing in the morning. While he might have had a 45-minute or even 1-hour ride into the airport, given the time of the flight, he reasonably could have left his home at 11:30 a.m. and would have arrived at the airport in far more than enough time.

411        It might well have been that the grievor simply made this claim for breakfast inadvertently. If he had actually said this, I likely would have accepted it; however, he did not. Instead, he concocted an excuse for claiming breakfast by stating that he went in to work in the lounge at the airport. He had a laptop. He could have worked from home; he could have gone into his office. And all that despite it being a paid day of leave for him.

412        The grievor should not have made this claim as it was inappropriate, a breach of the NJC TD, and fraud against his employer.

No. 10: November 16 - 22, 2008 - Vancouver and Winnipeg

413        On this trip, the grievor’s initial travel invoice, dated Monday, November 10, 2008, indicated that he was booked to leave Vancouver to fly to Winnipeg on WestJet on Wednesday, November 19, 2008, departing Vancouver at 11:30 a.m. via Calgary and arriving in Winnipeg at 5:20 p.m. The grievor changed his flight on Monday, November 17, 2008, to a flight still leaving on November 19, 2008, but at 2:15 p.m. instead of 11:30 a.m. (2 hours and 45 minutes later). The investigator testified that the grievor told him the change was due to the fact that the conference he was attending finished early. Mr. Lampron stated that he pointed out to the grievor that this did not make sense, because if the conference had ended early, he would have logically changed his flight to an earlier one, not a later one. Mr. Lampron stated that although the grievor told him that he would be provided with further information on this, he never was. The grievor’s Response does not address this inconsistency.

414        The grievor did not explain this change, and when pressed on cross-examination, he stated that he was meeting with people, which should have been reflected in the Response.

415        The grievor’s evidence on this issue is inconsistent. He booked his own travel on November 10, 2008, and it shows travel from Vancouver to Winnipeg on November 19, 2008, at 11:15 a.m. On Monday, November 17, 2008, 2 days before the scheduled travel on the Wednesday (and 7 days after he booked his travel), he changed his travel for a time 2 hours and 45 minutes later, at a cost of $446.80. His initial response was that the conference ended early. That would make sense if his change was to an earlier flight, but he changed it for a later flight. Given the short time between the two departing flights, and the fact that the grievor booked both the original and the changed flight, it was incumbent upon him to keep records of the reason for the change. His story also changed from the conference ending early to him meeting people.

416        This change of flight for a cost to the employer of $446.80 was inappropriate and was a breach of the NJC TD. No reasonable explanation was put forward.

No. 11: November 23-26, 2008 - Kananaskis, Alberta

417        The grievor’s initial travel invoice for this trip, dated November 10, 2008, shows him scheduling his travel to this conference as leaving Ottawa on Sunday, November 23, on a 7:20 a.m. flight and returning to Ottawa by departing Calgary early on Wednesday, November 26, 2008, at 00:35 a.m. and arriving in Ottawa (via Toronto) at 9:59 a.m. (“the red eye”). The grievor’s travel invoice of November 26, 2008, shows that he changed his flight from the red eye to a flight leaving Calgary on the same day (November 26, 2008) but approximately 18 hours later, at 6:10 p.m., and arriving in Ottawa at 11:51 p.m. The cost of this change was $258.41.

418        Both in his Response and when questioned before me, when asked about why he made this change, the grievor submitted that the fact that Mr. Burke, who was supposed to also attend the conference, did not attend thus increased the grievor’s workload and created a situation in which he was too tired to take the red eye.

419        The grievor’s evidence with respect to this change is skeptical. As he was the master of his own travel, he has only himself to blame for the poor choice of travel he made. On November 10, 2008, he had booked three straight weeks of events in western Canada, all of which had him travel to Calgary or through Calgary (to Vancouver, Winnipeg, and Kananaskis, via car), where he maintained a residence. The grievor could simply have originally booked his travel back to Ottawa on November 26, 2008, on the 6:10 p.m. flight rather than the red eye; he did not. He did not explain why he booked a red-eye flight back to Ottawa in the first place. He could not blame Mr. Burke’s non-attendance for his poor planning.

420        What is also interesting is that the grievor, who was quick to blame Mr. Burke for his exhaustion and hence the need to change his flight, did not explain why he would have returned to Ottawa from a trip to Vancouver and Winnipeg (via Calgary) at 1:22 p.m. on Saturday, November 22, 2008, only to turn around and go right back to the airport early Sunday morning, November 23, 2008, for a 7:20 a.m. flight back to Calgary. The grievor testified that with respect to Ottawa, he lived in Stittsville, a community in Ottawa’s far west end, which at the best of times is a 45-minute drive to the airport. Prudence would suggest that it would make sense that given the amount of travel that the grievor had planned for November (November 11-14, 16-22, and 23-26), on November 22, 2008, he should have travelled from Winnipeg to Calgary, where he had a residence, and stayed there, as he was going through Calgary the next day as that is the closest airport to Kananaskis, and that is where he did fly to for the trip to Kananaskis. The grievor chose instead to travel all the way back to Ottawa to just turn around and fly back out to Calgary.

421        The grievor set this exhausting travel agenda, and it was his travel planning. He could have and should have scheduled his return to Ottawa during more reasonable daytime hours on November 26, 2008. He was the only reason for the change. The extra cost should not have been incurred. It was a breach of the NJC TD.

No. 12: December 19-21, 2008 - Calgary and Saskatoon

422        Documents dated December 8, 2008, disclosed that the grievor’s work plans contemplated events in Calgary and Edmonton between December 17 to 19, 2008, and events in Saskatoon on December 22 and 23, 2008.

423        The grievor’s December 19, 2008, travel invoice shows him leaving Ottawa on Sunday, December 21, 2008, at 8:25 a.m. on Air Canada direct to Calgary and shows he was scheduled to return to Ottawa on Air Canada direct from Calgary on Monday, December 29, 2008, departing at 5:35 p.m. The December 19, 2008, travel invoice did not identify any travel to or from Saskatoon.

424        The grievor travelled to Calgary on December 21, 2008, rented a car and conducted business, and returned his rental car on December 22, 2008, at 2:35 p.m. According to the evidence, the grievor drove to Saskatoon via a personal motor vehicle.

425        The grievor was in Saskatoon and conducted business for his employer on December 23 and 24, 2008. The employer reimbursed him for his mileage for the trip from Calgary to Saskatoon in the amount of $344.50.

426        The grievor has family in Saskatoon.

427        Christmas and Boxing Day (both statutory paid holidays) fell on Thursday and Friday of that week, and December 27 and 28 were the Saturday and Sunday. The grievor, according to the December 19, 2008 travel invoice, was scheduled to fly out of Calgary at 5:35 p.m. on Monday, December 29, 2008. That being the case, he had to return to Calgary, somehow, from Saskatoon. The grievor provided no elucidation as to what his plan was with respect to his return travel from Saskatoon, such that he could catch his flight on Monday, December 29, 2008, at 5:35 p.m. I suspect that since he brought a personal motor vehicle to Saskatoon and was reimbursed $344.50 for his use of that vehicle in the course of his employment, he would have driven that vehicle back to Calgary either on Sunday, December 28, 2008, or Monday, December 29, 2008, after which he would have caught his scheduled flight back to Ottawa.

428        On December 22, 2008, while in Calgary, the grievor changed his return flight to Ottawa from a Calgary departure to a Saskatoon departure. His explanation was that the changes were approved and signed off by Mr. Burke.

429        While I can speculate as to why the change was made, again the grievor made his own travel arrangements for work, which he tied into his personal time at Christmas with his family in Saskatoon. There was certainly nothing wrong with him tying his work travel such that it coincided with spending Christmas with his family. He could have easily originally made his travel arrangements such that on December 29, 2008, he would have flown out of Saskatoon and not Calgary; he did not. I suspect either another family member drove the personal motor vehicle back to Calgary, or it was left with his family in Saskatoon. No legitimate work-related reason for making this flight change that cost the employer $344.40 has been proffered.

430        The cost to change the flight was the responsibility of the grievor. It was something he could have and should have foreseen when making his travel arrangements. While his personal travel plans might have not been concrete, it was certainly not an issue of the employer’s concern. The change appears to have been made for purely personal reasons after the fact and should have been borne by the grievor. It was a breach of the NJC TD.

431        The grievor spent the Christmas long weekend in Saskatoon with his family. There were no meetings planned for Monday, December 29, 2008, as that was the day he was scheduled to fly back to Ottawa from Calgary, and he had to somehow get from Saskatoon to Calgary. The grievor had not originally booked a flight from Saskatoon to Calgary, and given that he had driven a personal vehicle at a cost to the employer, I suspect his plan was to drive it back to Calgary and then catch his flight; a logical thing to do. The grievor in no way was required to stay in Saskatoon for his employer over the Christmas long weekend; nor was there any evidence of any sort of planned work event in either Saskatoon or Calgary on December 29, 2009. The grievor was not entitled to claim for the meal and incidental per diems; nor was he entitled to claim the non-commercial accommodation per diem. These claims were in breach of the NJC TD and were fraudulent.

No. 13: March 11-14, 2009 - Saskatoon

432        The grievor’s travel invoice dated Tuesday, March 10, 2009, shows that he had booked travel from Ottawa to Saskatoon on Wednesday, March 11, 2009, on an Air Canada flight departing at 6:00 p.m. and returning on Friday, March 13, 2009, again on Air Canada, departing Saskatoon at 5:35 p.m. via Toronto and arriving in Ottawa at 1:17 a.m. on Saturday, March 14, 2009. The grievor’s travel invoice dated Thursday, March 12, 2009 (two days later), shows that he changed his return flight from the Friday evening departure to one the next day, on Saturday at 10:30 a.m., still via Toronto, arriving in Ottawa at 6:15 p.m.; the cost of the change was $99.97. The grievor stated that the reason for the change, which was approved, was the significant savings in overtime.

433        In addition to the flight change fee, the change to the Saturday morning flight incurred an additional $81.55 in meal and incidental per diems and $50.00 per diem for stay at a personal residence.

434        As set out earlier in this decision, the grievor was not paid overtime, and again, there is no evidence that he was required to work overtime. In any event, the grievor again, was the master of his own travel. I suspect that had he originally chosen to return to Ottawa on the Saturday morning flight at 10:30 a.m. as opposed to the Friday night flight he booked, it would have been approved. I say that this would have been reasonable, because if the grievor worked the entire Friday in Saskatoon, it would not have been reasonable for his employer to require him to spend at least another seven-and-one-half hours more travelling home. That being said, the additional cost of $99.97 should never have been incurred and was wholly avoidable had the grievor just booked his return on the Saturday morning in the first place.

435        The employer also found that the grievor inappropriately claimed for the three meal per diems and the personal residence accommodation per diem of $50.00. While it would have been reasonable for the grievor to have booked his return on the Saturday, he did not, and as such, he should not have claimed the extra costs associated with the change. Those were costs he incurred on behalf of his employer due to his own improper actions. They were a breach of the NJC TD.

No. 14: May 19-25, 2009 - Calgary

436        The sole issue with this travel was the grievor booking a business-class ticket. A business-class ticket is more expensive than an economy ticket. The grievor was not entitled to fly on a business-class ticket. Section 3.3.11 of the NJC TD provides that the standard for air travel is economy class.

437        Mr. Burke did not have the authority to approve the grievor purchasing and flying on a business-class ticket. The exact cost to the employer of this is unknown as the cost of an economy fare was not provided.

438        On December 14, 2007, the grievor was provided with training with respect to the employer’s online travel booking tool. Immediately subsequent to that training, the grievor engaged in an email exchange with a number of individuals with respect to several travel issues in which the grievor made some suggestions about obtaining access to airport lounge services. In a reply to the grievor on January 9, 2008, the grievor was clearly made aware that business class is against Treasury Board policy. The email from Mr. Allen to the grievor was as follows:

…

I looked into your statements a little further and I have forwarded them on to Patrick Guindon at AMEX (who gave the presentation on Monday). All govn’t flights through the Travel Card are bought by AMEX. We are under contract with them. I would like him to see these suggestions and provide feedback to us. I am not sure if there would be a way to purchase lounge passes with flights. I know business class flights gains you access to the lounges but business class is against TB Travel Policy so this could cause a problem. AMEX books all flights as per TB Policy.

…

439        The grievor did not suggest in his evidence that he was unaware that travel by business class was inappropriate; instead, he stated that the reason he booked it was the late approval for the trip. There is absolutely no evidence that the grievor’s supervisors at the time, Mr. Gingras and Mr. Burke, were aware that the grievor had booked his ticket in business class. This should have been brought to the attention of Mr. Burke, who had the delegated financial authority. Mr. Burke testified that he had no authority to approve business class travel. I suspect that if it had been brought to his attention, either he would not have approved it (as he had no authority to) or, at best, he would have had to get approval from further up the chain of command.

440        The evidence disclosed that on Thursday, May 14, 2009, the grievor was aware of a problem with his ticket purchase in economy on a specific Air Canada flight on a specific day. The evidence also disclosed that he forwarded an email about this problem to both Messrs. Burke and Gingras. The grievor’s travel invoice dated Sunday, May 17, 2008, shows that he purchased a business-class ticket to Calgary for Tuesday, May 19, 2008, at 2:35 p.m.

441        The grievor knew that he could not purchase and travel on a business-class ticket, yet he booked one anyway. The excuse that there were no other economy-class tickets available was irrelevant. He should not have booked the ticket. He should have alerted his managers that there were no economy-class tickets available and left it in their hands as to how to handle the trip. This was a flagrant breach of the NJC TD.

Conclusion on the issue of termination

442        The allegations brought forward by the employer identify two distinct types of misuse of employer assets or funds:

1. When a cost to the employer was incurred, but no financial benefit was received by the grievor.

2. When a cost to the employer was incurred, and a financial benefit was received by the grievor.

443        When a cost to the employer was incurred but no financial benefit was received by the grievor, it was usually due to flight changes and the purchase of the business-class ticket for the May 19, 2009, trip to Calgary. When a cost was incurred to the employer and a financial benefit was received by the grievor, it was largely due to claims he made for meal and incidental per diems and the non-commercial accommodation per diem he claimed for staying at his own residence in Calgary or with his family in Saskatoon over weekends as well as the extra insurance on the rental vehicle for his spouse during the January 12, 2008, trip.

444        With respect to the changes in flights, although there might have been no direct financial benefit to the grievor, he did incur a cost to his employer. While sometimes, changes to flights are legitimate or unavoidable, I was not presented with any evidence that the changes the grievor made in the instances identified in the Final Travel Report could have fallen into one of those categories. On numerous occasions, he scheduled and booked his travel only to change it, sometimes only days later, at a cost to his employer, with no reasonable explanation. Sometimes his explanations were vague; he might have been meeting people. Other times, it was that he was exhausted.

445        The grievor stated in his evidence he was very familiar with the rules surrounding travel. There was no evidence that he was required to stay over the weekends he did when he claimed the per diems. He often claimed that it was done to save money on airline fares; however, there was no document produced that this was in fact the case. Another explanation was that he was working while he stayed over the weekend. I was provided with no specific concrete work that the grievor had to carry out either in Calgary or Saskatoon that required him to be there over the weekends that were identified in the Final Travel Report for which claims were made that were identified as illegitimate. The grievor also stated that staying over the weekend often saved the employer overtime. However, this is a red herring; the grievor was not entitled to claim overtime, and as such, it did not save the employer anything.

446        I am convinced that the grievor knew the rules with respect to booking travel and with respect to the claims he put forth for expenses for his travel and that he chose to ignore them. In doing so, he caused his employer to expend funds it would not necessarily have spent. In addition, with respect to the claims the grievor made for the per diems, either for meals and incidentals or for the non-commercial accommodation, he abused the trust of his managers by claiming monies he was not owed, which amounted to fraud against the employer. While his managers might have failed to exercise the appropriate supervision over these claims, which might have saved the employer the sum in excess of $5000.00, it might have also have saved the grievor his job. Had his managers caught the claims, rather than foolishly rubber-stamping them, the grievor’s actions might have been caught early on, and while he might have been disciplined, it might not have been as severe and might have corrected his behaviour such that he did not conduct himself in the manner he continued to.

447        The actions of the grievor cannot be said to have been an isolated event (save and except in the case of the coffee claim in January 2008) or an inadvertent slip. The grievor engaged in the same type of misconduct on a number of different occasions over an extended period.

448        In Oliver,at paragraph 103, the adjudicator indicated that a critical factor in assessing the appropriateness of the discipline is whether the grievor takes responsibility for his or her actions :

The recognition of culpability or some responsibility for his or her actions is a critical factor in assessing the appropriateness of the discipline. This is because the rehabilitative potential of the grievor is built on a foundation of trust, and trust starts with the truth. If a grievor . . . refuses to admit any responsibility in the face of evidence showing wrongdoing, then re-establishing the trust necessary for an employment relationship is impossible.

The principle that an employee is not required to provide an explanation to his employer or acknowledge any wrongdoing is not one that is enshrined in the collective bargaining regime. That principle is one that is enshrined in our criminal law. The collective bargaining regime has developed from employment law, which historically has upheld, and continues to uphold, the employer’s right of entitlement to good faith from its employees. Accordingly, the approach is very different. Whether an employee has been candid with the employer, acknowledged the inappropriateness of the conduct in question, apologized and demonstrated remorse and a willingness to correct the behaviour or refrain from it in the future, are primary considerations in addressing the issue of mitigation of the discipline imposed.

Naidu v. CCRA, 2001 PSSRB 124

449        The grievor did not make any acknowledgement that he had done something wrong. Nor did he accept any responsibility for his actions. In fact, the grievor often blamed others.

450        I agree with the reasoning of the adjudicator in King at paragraph 200, in which the principle is enunciated that there is no requirement that discipline progress by preordained steps. In King,the adjudicator went on to state that the seriousness of the misconduct, the aggravating factors, and the previous disciplinary record were sufficient to justify the discipline rendered. The grievor had over a short period a number of disciplinary measures imposed on him due to his conduct. While there were many, and they were suspensions of short duration, I am not bound to impose a lesser amount of discipline than termination due to that fact. In some circumstances, the misconduct is of such a nature that termination of employment can be appropriate, despite progressive discipline. I find that the grievor’s actions, which were repetitive and calculated, coupled with his complete lack of recognition of any wrongdoing and remorse, justify the imposition of the penalty of the termination of his employment, and I am not prepared to set it aside.

Board File Nos. 566-02-7744 – recovery of money from performance pay

451        Section 155(3) of the FAA refers to the recovery of monies due to an over-payment:

155(3) The Receiver General may recover any over-payment made out of the Consolidated Revenue Fund on account of salary, wages, pay or pay and allowances out of any sum of money that may be due or payable by Her Majesty in right of Canada to the person to whom the over-payment was made.

452        In Hanna v. Deputy Head (Department of Indian Affairs and Northern Development), 2009 PSLRB 94, the Board determined that the grievance had to include both discipline and a financial penalty to be adjudicable under s. 209(1)(b) of the Act:

19. ... to be adjudicable under paragraph 209(1)(b) of the Act, a financial penalty must be the result of and be directly tied to a disciplinary action. If a financial penalty is not the result of a disciplinary action, it cannot be adjudicable under paragraph 209(1)(b). A financial penalty alone is not adjudicable...

453        The Federal Court of Canada concluded in Canada (Attorney General) v. Frazee, 2007 FC 1176, that we have to look at the employer’s intention to determine whether an employee has been disciplined:

22. It is not surprising that one of the primary factors in determining whether an employee had been disciplined concerns the intention of the employer. The question to be asked is whether the employer intended to impose discipline and whether its impugned decision was likely to be relied upon in the imposition of future discipline...

454        Given that I have found that the grievor acted in a manner that amounts to misconduct by breaching the NJC TD and by fraudulently claiming monies that were not properly owed him, the recovery of $1948.88 from monies owed to the grievor was not disciplinary, but rather administrative. Ms. Labreque testified that the grievor had been terminated when his performance pay was to be paid. The sum was therefore deducted from the amount of the performance pay before it was paid. I therefore do not believe that the employer intended to impose discipline at this point, given that the grievor had already been terminated. It was simply recovering the overpayment made to the grievor. Therefore, based on the foregoing, the grievance on the recovery of monies is not adjudicable under s. 209(1)(b) of the Act.

455        This grievance shall also be dismissed.

456        For all of the above reasons, I make the following order.

V. Order

457        The grievance against the one-day suspension, as set out in Board File No. 566-02-7742, is dismissed.

458        The grievance against the termination of employment, as set out in Board File No. 566-02-7741, is dismissed.

459        The grievance with respect to the recovery of monies allegedly owed to the Crown from the grievor’s performance pay, as set out in Board File No. 566-02-7744 is dismissed.

May 19, 2016.