FPSLREB Decisions

Heard at Windsor, Ontario,
May 3 to 5, 2016.

REASONS FOR DECISION

Introduction

1        This hearing resulted from the referral to adjudication of an individual grievance filed by Mr. Matthew Campbell (“the grievor”), who was terminated from his employment with the Canada Revenue Agency (“the employer”) due to misconduct. The grievor asks for the termination to be quashed and that he be permitted to retire instead, which would allow him to collect in excess of $30 000 in severance that he was unable to collect due to his employment being termination.

2        The grievor admits to committing 93 separate unauthorized taxpayer file accesses and 14 preferential treatments to taxpayers. In addition are two contested allegations of disclosing taxpayer information to unauthorized third parties. In all the allegations and evidence before me, there is no suggestion that the grievor benefitted financially from his actions. It is also important to note that no allegation or evidence suggests that the Receiver General for Canada lost a single dollar of tax revenue due to the grievor’s impugned actions.

3        In addition to the admitted misconduct, I will weigh the evidence that was before me at the hearing on the two contested allegations and, taking everything together, determine whether the grievor’s proven misconduct was sufficient to justify the employer’s decision to terminate his employment or whether a lesser penalty is warranted.

4        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 new Board”) to replace the former Public Service Labour Relations Board (“the former Board”) 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 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

Facts

5        The grievor enjoyed over 33 years of service with the employer and held a PM-01 position in tax collections at the time of his termination. At one point in his career, he had held a customer service position, and he testified that he had enjoyed the regular contact with citizens and the fulfilment that came from being able to help them resolve their issues. From the evidence, it appears that this sense of helping others led to his problems and to his dismissal from employment.

6        The grievor admits to having regularly helped family members and acquaintances with their customer service needs. The circle of people who had his direct phone line at work seemed to grow as more relatives, roommates of relatives, acquaintances, family, and friends would call him for help. The grievor states that in fact, not all the calls he received were wanted. But the evidence suggests that wanted or not, he could not refuse requests for help on files that were not assigned to him and were thereby unauthorized for him to access or work on. A strict prohibition was in place at all times that should have prevented the grievor from viewing or working on his own tax files.

7        The help he provided for the many people that would call him included handling a rather banal change of address for his son and a nephew of a friend and a change of direct deposit information for his niece’s roommate. He performed regular updates and status inquires for family members wanting to know when they could expect their tax returns to be processed. He handled other matters such as registering the last will and testament on the tax file when one of his in-laws died so that his surviving in-law would then be authorized to wind up the tax affairs of the deceased.

8        In another case involving a family member of an acquaintance the grievor knew through his volunteering with the local youth darts league, he made arrangements for a young person, whose wages were being garnisheed, to pay a tax debt to ensure her files were kept up to date. He did it to ensure her employer would not garnish wages that would no longer be required once a separate tax credit refund that was owed to her was processed.

9        The employer examined the grievor’s computer use for the period from January 2012 to August 2014, and it showed preferential treatment for 14 different people. In this same period, the grievor made unauthorized access to 93 files for a total of 150 different page views. The fact that the files were not assigned to him and in almost all cases involved friends and family made viewing them unauthorized and contrary to the employer’s code of conduct.

Disputed allegations

10        The parties dispute whether the grievor disclosed taxpayer information to an unauthorized third party. Does the evidence before me support the employer’s allegation that he made such a disclosure?

11        The first allegation against the grievor arose from him assisting “Ms. M” (these names are anonymized in this decision), the mother of one of the youths in the grievor’s darts league who asked him for help with her husband’s tax account. She testified that her husband was at home ill and that she was handling his affairs. The evidence shows that Mr. and Ms. M took part in a phone call together with the grievor and that the grievor properly identified Mr. M before discussing any matters with them. The evidence shows that Mr. M gave his consent for his wife to discuss and receive information about his tax matters, which were of concern to their family.

12        When first interviewed by the employer’s internal investigators, the grievor stated that he had never spoken with Mr. M (Exhibit E-1, Tab 1, page 6). Later, at his disciplinary hearing, when he was presented with the internal investigation report, the grievor said that he had misspoken on that point as he had simply forgotten and that in fact, he had spoken with Mr. M to verify his identity and obtain his consent to discuss his files with Ms. M. The evidence adduced at the hearing was that the employer had questioned the credibility of this statement and that it had rejected this new information.

13        The grievor testified that on every occasion on which he spoke to a taxpayer on the phone, he would always properly identify them before discussing any tax files.

14        I accept the uncontested testimony of the grievor and Ms. M as to the common-sense occurrence of one spouse helping the other, who is ill, with tax matters. As such, I find the first allegation against the grievor, of disclosing taxpayer information to an unauthorized third party, unfounded in fact and therefore erroneous.

15        The second allegation of this nature involved Ms. D, who was another acquaintance through the youth darts league. Ms. D had received a letter dated July 13, 2013, from the employer, indicating it required further written information from her within 30 days to justify her child tax credit claim. The evidence suggests that she did not reply and that she was denied her tax credit. No evidence suggests anything other than that the employer wrote to Ms. D asking for some information and that it stated that if she complied with that request, she would receive the credit she had claimed.

16        Ms. D testified that she had called the employer’s public telephone help line but that she had had trouble getting through to anyone and somewhat paradoxically that she had received different answers from different staff of the employer. She also testified that she had had no Internet access and that she had needed help to understand what exactly was being asked of her, where to obtain the required information, and where to send it.

17        Ms. D phoned the grievor at work on September 9, 2013, to enlist his assistance in advising her on what she was required to send to the employer and where to send it. He admits that while he was on his work phone with Ms. D, he accessed the files of Ms. D’s ex-husband, Mr. N.

18        The computer logs (Exhibit E-3, page 46) show that the grievor spent 27 seconds viewing those files. Among other things, the grievor viewed on the “E” file screen Mr. N’s personal information held by the employer. He also viewed Mr. N’s most recent tax return along with the file that listed his dependents. Given all those file views, the employer concluded that the grievor had, on a balance of probabilities, advised Ms. D that her ex-husband had not claimed the same tax credit she sought, which thus was a disclosure of Mr. N’s tax information to an unauthorized third party.

19        When asked about the nature of the help Ms. D required, the grievor admitted without hesitation that nothing she needed would have been impacted in any way by her ex-husband’s tax files but that he had viewed Mr. N’s files anyway, out of his personal “investigative interest”.

20        In Faryna v. Chorny, [1951] B.C.J. No. 152 (QL), the British Columbia Court of Appeal provided guidance for determining contested facts and assessing witness credibility. The Court determined that the credibility of an interested witness must be tested by reasonably subjecting the story to an examination of its consistency with the probabilities that surround the currently existing conditions. The real test of the truth of a witness’s story must be its harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.

21        Upon being asked two introductory questions in cross-examination about her request for the grievor’s assistance, Ms. D gave a highly detailed and vigorous denial of wanting or receiving any information about her ex-husband.

22        I note the relatively simple nature of the employer’s correspondence to Ms. D and the somewhat inconsistent nature of her many questions that arose from it. I find it unlikely that Ms. D had in fact received contradictory advice from the employer’s call centre staff she claims to have called before enlisting the grievor’s help. I also find it unlikely that while on the phone to discuss a very simple question, the grievor took it upon himself to investigate Ms. D’s ex-husband’s personal tax files, purely out of his own interest.

23        Given the totality of my observations of Ms. D’s testimony at the hearing and what the grievor admitted were unnecessary investigations into Mr. N’s personal tax files. I find it more probable than not that information about Mr. N and his taxes was disclosed to Ms. D improperly and without Mr. N’s authorization.

The employer’s decision to terminate the grievor’s employment

24        Given the facts from the hearing that I have established and the aggravating and mitigating factors relevant to this case, I must determine whether the employer was justified in terminating the grievor’s employment.

25        The grievor admits to 93 unauthorized taxpayer file accesses as well as to giving taxpayers preferential treatment. On the evidence before me, I find that he did disclose taxpayer information to an unauthorized third party on one occasion.

26        The grievor explained that each instance of misconduct was done for the purpose of helping others. Even the access he made to his own tax files, which is prohibited, was done only because a manager told a co-worker to ask the grievor for help, according to the grievor. He explained that he accessed his own account as an illustration of what his co-worker sought help with.

27        In argument, the grievor’s counsel submitted that the grievor was neither malicious nor devious in his many breaches of the employer’s code of conduct. He also pointed out that in his testimony; the grievor stated that he understood that what he was doing was wrong.

28        Perhaps more than anything in this hearing, I find that statement by the grievor troubling. I think that an employer rightly finds it very problematic any time an employee consciously decides for his or her own reasons to break very clear and strict rules that he or she understands and is repeatedly reminded of both by managers and by the bargaining agent. I have many examples in the evidence before me of both his employer and his bargaining agent urging all staff to follow the employer’s code of conduct. Among other things, this code of conduct prohibits staff from accessing their own files. It also prohibits employees from helping family, friends, or acquaintances. If an employee is assigned a file of someone he or she knows or is related to, he or she is supposed to immediately report it to his or her supervisor.

29        The grievor was required to attend a seminar at which all staff were reminded of the different aspects of the code of conduct and were given examples of being asked to help family and friends. The presentation advised that any such contact and assistance was prohibited and that employee misconduct might be subject to discipline, up to and including termination of employment. The seminar concluded by advising employees of the statement, “Don’t put your careers on the line”, and explained that despite repeated communications on unauthorized access and employee misconduct, employees were continuing to engage in these behaviors, jeopardizing their careers. It was also noted that the majority of such infractions are committed by experienced employees.

30        The Board’s jurisprudence dealing with employee terminations has often followed the decision Wm. Scott & Co., [1976] B.C.L.R.B.D. No. 98 (QL), which outlines a process to follow when considering whether discipline was warranted, and if so, whether the decision to dismiss the employee was an excessive response given all the relevant facts, and if not, the alternative measures that the arbitrator or adjudication would consider as a proper alternative.

31        In the case before me, the grievor concedes that misconduct occurred that merited some form of discipline but argues that termination was excessive. He suggests mitigating factors should be considered, since in all the cases of unauthorized access to files, the taxpayers had in fact requested his assistance. The one exception is my finding that Mr. N’s files were accessed and disclosed without his knowledge or consent.

32        The grievor points out that his intentions were not malicious nor for personal gain as his intent was only to help people. He points out his 33 years of good service to the employer with no previous record of problems that was brought before me at the hearing. He notes that the evidence before me shows that none of the taxpayers who received letters from the employer notifying them of their files being accessed without authorization accepted its offer of free credit protection from a third-party privacy protection firm. The grievor also submits that the favours that were done for his many family, friends, and acquaintances were not anything beyond the basic services that any citizen could obtain under similar circumstances by calling the employer’s customer service centre. However, in one case, I find this claim of the grievor exaggerated.

33        In the case of helping a daughter of an acquaintance who was having her wages garnished, I find that the grievor’s assistance most likely provided her a standard of service that went above and beyond what any normal taxpayer could hope to achieve through normal means of access to the employer.

34        The grievor’s testimony on this point was detailed and left no doubt that his interventions in the file of his friend’s daughter were done to ensure that her employer knew exactly when to cease paying the garnishment order such that no excess payments would be made once a tax credit owed to her was confirmed, as it would have been applied to her outstanding debt.

35        I cannot accept the grievor’s argument that this level of personalized service is available to any other taxpayer who might try to call and wait in the queue for service on the employer’s help line. The rest of the Canadian taxpayers who did not have the grievor’s private work phone number would have been faced potentially with numerous calls to the employer and would perhaps have spent hours on the line waiting for an answer in hopes of getting someone to check their files and call their employers.

36        The concern arising from the preference the grievor showed to friends and family and friends and acquaintances of family is that it erodes the confidence of ordinary taxpayers in the fairness of our tax system.

37        The employer called evidence through two representatives of its management, Mr. Steven Tiessen and Mr. Doug Fleming. Each testified to the critical importance of taxpayer confidence in our tax system as Canada relies upon voluntary compliance for tax filing. The two witnesses suggested that every instance of giving preferential treatment risks eroding Canadians’ confidence in their tax system.

38        In addition to the mitigating factors cited by the grievor, the employer cites what it considers an aggravating factor, which was the initial lack of cooperation it received when it confronted the grievor with allegations of misconduct. Ms. Tonya Hawa, the employer’s internal investigator who was assigned the file, testified that when he was first confronted with those allegations, the grievor stated that he would occasionally get calls from friends for assistance but that he would refer them to the employer’s customer help line.

39        In support of its decision to terminate the grievor’s employment, the employer relies upon Ward v. Treasury Board (Revenue Canada - Taxation), PSSRB File Nos. 166-02-16121 and 16122 (19861229), [1986] C.P.S.S.R.B. No. 335 (QL). Ward also involves the dismissal of an employee who had made unauthorized views of taxpayer files. The grievor in that case claimed that she accessed the files for a friend who was in dire personal circumstances. She testified to having gone through personal crises during the time of her misconduct. No allegations were made of the grievor being financially enriched or of the federal government suffering a financial loss.

40        The dismissal of the grievor in Ward was upheld. The Board Member stated that the misconduct was not a momentary lapse in judgement but rather an unprovoked and repeated occurrence. The grievor in that case and other staff had been repeatedly warned about not making unauthorized accesses to files. Despite the grievor having an otherwise good service record, the adjudicator found that Canada’s entire tax system is jeopardized when employees breach the code of conduct, access unauthorized files, and divulge information to third parties. The importance of the right of taxpayers to expect their privacy to be respected was also noted.

41        The grievor cites Nolan v. Treasury Board (Revenue Canada - Taxation), PSSRB File No. 166-02-17111 (19871125), [1987] C.P.S.S.R.B. No. 338 (QL), as an authority for a taxation employee’s dismissal for misconduct being found unjust and for a three-month suspension being substituted as discipline. That case involves a long-serving employee of Revenue Canada, who was found to have made unauthorized accesses to files, to have made false records related to work duties, and to have used taxpayer information to harass a police officer. The adjudicator found that much of the evidence against the grievor in that case was either circumstantial or hearsay (page 2). However, that grievor was found to have committed more than one act of misconduct of accessing files and falsifying documents. Despite that, her dismissal was found to be excessive.

42        I am neither bound nor persuaded by Nolan. It is a case from another era, one with far less concern for the protection of privacy as compared to the modern digital era. My reading of Nolan gives no indication of what if anything the employer and bargaining agent did to educate and urge employees to adhere to the code of conduct prohibiting unauthorized access to files and to disclosing information, which are relevant matters in the case before me.

43        The grievor also cites McGoldrick v. Treasury Board (Revenue Canada - Customs and Excise), PSSRB File No. 166-02-25796 (19941003), [1994] C.P.S.S.R.B. No. 121 (QL), as a case of an employee who made unauthorized use of information and disclosed it to third parties. The adjudicator noted Ward and the risk of harm to the Canadian tax system’s credibility. However, of critical difference is the finding that the grievor in that case, despite his inability to clearly demonstrate his remorsefulness, did “... now fully realize... his mistake was extremely serious” (at page 19). While I find it hard to understand how a person can lack any remorse and yet truly appreciate the seriousness of his or her misconduct, the evidence before me does not show such an understanding of the seriousness of the misconduct by the grievor. Therefore, I distinguish McGoldrick on its facts.

44        I have read the other cases cited by the grievor but do not find them of sufficient relevance, given their significantly different facts, to warrant their consideration in this case.

The grievor’s retirement

45        Did the grievor’s attempt to advance the date of his previously declared retirement date before the employer decided to suspend and or terminate his employment block that decision?

46        The parties led evidence and provided me with jurisprudence related to the grievor’s effort to retire before the employer could affect disciplinary action resulting from his misconduct.

47        Neither party chose to pursue this matter in any detail in their closing arguments. At the conclusion of the arguments, I confirmed my understanding with counsel that the matter in dispute before me was simply to determine if the decision to terminate the grievor’s employment was justified and if was not, to quash it. Both counsel concurred that that was indeed the only issue for determination before me. As such, I make no ruling on the matter of the employer’s rejection of the grievor’s attempt to advance his retirement date before it suspended and then terminated his employment.

Conclusion

48        The grievor’s act of viewing and sharing tax information with a third party concerning their ex-spouse breached the employer’s code of conduct, and I find it fraught with peril. The right of Canadians to expect their confidential personal affairs to remain private must be protected. The expectation of privacy in dealing with the aftermath of a divorce or separation is very important. In some cases, the safety and well-being of one ex-spouse may be at risk, and the unauthorized disclosure of personal information may put that person in jeopardy. Thankfully, no such allegations were made in the case before me. However, the unauthorized disclosure of any information to an ex-spouse remains something I find deeply concerning.

49        I reject the submission that the grievor’s long record of good service should be a mitigating factor. If anything, his long service should be seen as an aggravating factor. He had been presented with dozens of teaching aids, reminders, and joint employer-bargaining agent supports to ensure his understanding of and compliance with the code of conduct. A long-standing employee should have greater workplace awareness and thus be more worthy of the employer’s trust.

50        In the end, I did not hear any remorse from the grievor that would reflect his appreciation of the potential harm to his employer that was caused by his misconduct. He readily acknowledged that he knew that what he was doing was a breach of his code of conduct, yet he chose to repeat his misconduct many times. He testified that he wished that he had not committed the acts of misconduct, but I took that comment to mean that he regrets having lost his severance, rather than being regretful for what he has done to his employer. As such, I must reject the grievance.

51        To do otherwise and allow the reinstatement of this grievor, and other such grievors, would necessarily elevate the risk of further misconduct being committed by an employee who fully understands that what he is doing is wrong but for his own reasons chooses to regularly commit acts of misconduct against his employer. The grievor showed no understanding of the potential harm to the Canadian tax system that choosing to disregard the employer’s code of conduct posed.

52        This is not a case in which progressive discipline would warrant lesser discipline, to encourage the employee’s rehabilitation. For the reasons noted earlier, the bond of trust in the employer-employee relationship has been caused irreparable harm by the grievor’s decision to repeatedly disregard the employer’s code of conduct.

53        For all of the above reasons, the Board makes the following order:

Order

54        The grievance is dismissed.

July 25, 2016.