FPSLREB Decisions

Heard at Montreal, Quebec,
January 24 to 27 and March 23, 2017.
(PSLREB Translation)

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        Carole Pronovost (“the grievor”) filed a grievance against her employer, the Canada Revenue Agency (CRA or “the employer”), because it imposed on her a disciplinary penalty of eight days without pay following an investigation. She also challenged that investigation in the grievance with respect to its conduct and results.

2        The grievance was referred to adjudication on April 19, 2013. On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force, creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the Public Service Labour Relations Board (“the former Board”). On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force. Pursuant to s. 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; “the Act”) before November 1, 2014, is to be taken up and continue under and in conformity with the Act.

3        The grievance is allowed in part, for the reasons that follow.

II. Summary of the evidence

4        The employer called to testify Christiane Côté, appeals division manager and the grievor’s immediate supervisor from January 2009 to February 2010; Linda Foucault, auditor at the Laval Tax Services Office (TSO); Henri Bettez, regional chief of appeals and Ms. Côté’s immediate supervisor; Anne-Marie Gingras, investigator at the CRA’s Internal Affairs and Fraud Prevention Division; Patrick Chouinard, director of the Montreal TSO from 2008 to 2012; and Francine Miron, director of the Montreal TSO who succeeded Mr. Chouinard in 2012. The grievor called to testify Clodie Robitaille, appeals officer at the Laval TSO in 2008 and 2009, and she testified for herself.

5        The grievor worked at the Laval TSO as a team leader at the MG-05 group and level. The Laval TSO consists of three teams made up of approximately five or six people. Two teams are in charge of more complex tax files; they consist of auditors classified AU (AU-01 to AU-03). A third team, consisting of employees classified SP, is in charge of less-complex files. In short, the Appeals Division is in charge of reviewing the files of taxpayers who challenged the notice of assessment the CRA issued after their tax returns were filed. At the time of the events that led to the grievance, the grievor was the team leader of one of the AU teams.

6        On January 5, 2010, the grievor left a voicemail for Ms. Côté, informing her that she had to take sick leave of approximately six weeks, on the advice of her doctor. Ms. Côté called a meeting of the two AU teams after obtaining consent from Ms. Foucault to temporarily manage the grievor’s team.

7        At a meeting held to discuss the grievor’s absence and the steps that would be taken to temporarily replace her, some members of the grievor’s team revealed to Ms. Côté that in fact things were going poorly under the grievor’s management. She was criticized for not being present enough — she arrived late, left early, and did not handle files and questions in a timely manner, and she seemed occupied by something other than her work. She was also criticized for not treating her employees with respect. According to the testimonies of Ms. Côté and Ms. Foucault, the meeting quickly became rather emotional.

8        Ms. Côté was taken aback. She did not expect such revelations. She had also had some difficulties with the grievor, for two main reasons: the grievor’s time sheets, in which she failed or forgot to report her absences on the forms provided for them, and some work disputes, for which mediation was being considered. However, she had been unaware until then that the grievor’s employees were having difficulties in their relationships with her.

9        Ms. Foucault, who was the most senior employee, testified that she noted an obvious sense of relief among the TSO employees after that meeting, which she attributed to the situation being revealed and to the grievor’s absence.

10        The testimony of Ms. Robitaille, who did not attend the January 6, 2010, meeting (she had left the section), offers a somewhat different view of the grievor’s work. According to her, the grievor was a peerless team leader — attentive, always available, often there in the evening after 5 p.m., and always ready to help and advise.

11        Ms. Robitaille mentioned a conflict with Ms. Côté about her temporary transfer, in which the grievor allegedly took her side against Ms. Côté. Ms. Côté had already testified, and she was not asked any questions on this issue. The employer challenged this evidence. All I can gather from it is that Ms. Robitaille and Ms. Côté had a conflict (Ms. Côté mentioned it in her meeting notes of January 6, 2010, because some employees commented on it).

12        After the January 6, 2010, meeting, Ms. Côté reported the situation to her immediate supervisor, Mr. Bettez, highlighting in particular the grievor’s absences. He testified that he found the situation serious. The Laval TSO had some performance problems and now labour relations problems too. He consulted his labour relations advisor and asked the internal affairs section to launch a preliminary investigation, to verify the scope of the problem.

13        When the grievor returned from sick leave on February 22, 2010, she was informed that she was under investigation. Furthermore, Mr. Bettez decided to not allow her to return to the Laval TSO; he assigned her to the Montreal TSO. This shocked her, and she went on sick leave again. She gradually returned to work (at the Montreal TSO) in September 2010. The gradual return took several months.

14        Mr. Bettez explained that his decision to move the grievor to the Montreal TSO was aimed primarily at protecting the Laval TSO’s employees. After the disclosure of January 6, 2010, he did not think it was wise to expose them to the grievor’s presence.

15        She filed a grievance against her transfer to the Montreal TSO, which reached the second level of the grievance process. At that time, the representative of the bargaining agent, the Professional Institute of the Public Service of Canada (PIPSC), made an offer to the employer to negotiate an agreement. The negotiations went on for some time but did not lead to a settlement. After the negotiations failed, the employer, which had already received an investigation report on the allegations against the grievor, asked internal affairs for a more detailed report, which I will deal with later. The grievance on the transfer to the Montreal TSO was withdrawn before the hearing began.

16        While the grievor was on sick leave, Mr. Bettez sent her a questionnaire on May 4, 2010, to permit her to explain the problems with her scheduling uncovered during the preliminary investigation. It consisted of a grid containing the dates for which the employer had no information on her comings and goings. She endeavoured to answer the questions. The questionnaire was finally completed in November 2010. It had approximately 160 questions.

17        At the hearing, many documents were adduced in evidence about the grievor’s schedule. Two versions of the official investigation report were also adduced. The first is dated June 13, 2011. The second, requested when the settlement negotiations (for the transfer grievance) failed, is dated April 25, 2012, and is based entirely on evidence gathered during the first investigation but expands more on the findings. Ms. Gingras was the investigator who prepared the second report.

18        According to Mr. Bettez, the questionnaire that was sent to the grievor on May 4, 2010, offered her the opportunity to dispel any doubts that the employer might have had about her schedule. When he received the final version in November 2010, he found that it was necessary for the Internal Affairs Division to conduct a detailed investigation since the responses were not entirely satisfactory. Two problems were brought to the Internal Affairs Division’s attention: the grievor’s schedule and her use of electronic networks.

19        The investigation concluded that the grievor had failed to report all her leave. She was accused of a lack of thoroughness in keeping her time sheets, i.e., of failing to enter her leave in the appropriate software in a timely manner. She was also accused of using the employer’s electronic network to store the courses that she taught at the university and on some occasions of using the employer’s premises either to meet with students or, on one occasion, to administer an exam.

20        Ms. Gingras was in charge of the further investigation that followed the first report. She testified that her work involved going over the evidence and incorporating it into the second version, to better justify the conclusions. She also explained the different elements of documentary evidence used for the report. In the following paragraphs, I summarize the outline of the second report, which was directly used to justify the discipline imposed on the grievor.

21        The purpose of the investigation is stated in the report’s introduction in the following terms:

[Translation]

…

To determine the circumstances surrounding the use of the CRA’s electronic network, time, and property by [the grievor], objections officer, Appeals Division, Montreal Tax Services Office, to conduct private business, which might place her in a conflict of interest.

…

22        The report summarizes the interviews of the grievor’s managers (Robin Filion and Ms. Côté) and of three individuals who had worked with the grievor in the past, the most recent period being in 2005.

23        The grievor’s former manager, Mr. Filion, and Ms. Côté state that they had difficulties obtaining her time sheets, on which she had to report leave she had taken. Many emails were presented at the hearing to illustrate Ms. Côté’s requests in that respect.

24        A large portion of the additions to the second report (pages 23 to 31) consists of a review of the documents used in an attempt to trace the grievor’s presence or absence at work. First, I will quote the paragraph preceding that review, as follows:

[Translation]

Management created a chart [the questionnaire discussed earlier] of an analysis of the indicators of Carole Pronovost’s attendance obtained via a comparative analysis of the access logs to the building, data in the CAS [Corporate Administrative System, in which leave is entered], as of April 9, 2010, the contents of her Outlook electronic calendar, the attendance record from her employment sector, and electronic activity recorded in her assigned email account. The chart showing the conflicting situations was given to Carole Pronovost on May 4, 2010, so that she could provide explanations. Following Carole Pronovost’s explanations, the following contradictory observations were raised....

25        The report describes 31 “[translation] contradictory observations”. The following are some of the contradictions that were raised:

[Translation]

· An entry in the Outlook calendar for a dentist appointment for her sons on January 29, 2008, from 3:45 to 4:15 p.m. However, no absence was entered for that day in the CAS or in the record of absences. Carole Pronovost stated that based on her work schedule, which is 8.5 hours (from 9:00 a.m. to 5:45 p.m.), she had arrived at the office at 8:59 a.m. and claimed to have sent a final email at 5:39 p.m. Furthermore, Carole Pronovost stated that she had not taken her lunch break. However, it is unlikely that anyone could remember this kind of detail given the elapsed time. Her last access was recorded at the door of the work area at 12:33 p.m.

· Carole Pronovost reported that on March 12, 2008, she was on uncertified sick leave and that she had unintentionally forgotten to enter her leave of 8.25 hours in the CAS, even though she had informed management and her employees of her absence by email, and that her absence was reflected in the record of absences.

· An entry in Carole Pronovost’s Outlook calendar for a medical appointment on March 18, 2008, from 10:00 a.m. to 2:00 p.m. Thus, no access was recorded at the Laval TSO on that day, and no absence was recorded in the CAS, even though her absence was reflected in the record of absences. Carole Pronovost reported that she had informed management and her employees of her absence by email on March 17, 2008. She believed that her absence on March 18, 2008, might have been precipitated by the closure of the Laval TSO due to a storm or power outage. However, a check with the National Incident Centre revealed that no closure or incident affecting the Laval TSO was reported on March 18, 2008. According to the work schedule in effect, Carole Pronovost failed to report 8.25 hours of leave in the CAS.

26        Several documents were used to develop the questionnaire and the investigation, including the CAS, the grievor’s electronic calendar, the emails sent from her workstation, entries by electronic card into the workplace, and the Laval TSO’s record of absences, which is an Excel document in which employees indicate their daily activity if they are absent (working from home, leave, meeting, etc.).

27        The CAS indicates the scheduled work time based on the work schedule, which has to do with the distribution of work hours in a given week. Employees must work 37.5 hours per week. With their managers’ consent, some employees could opt for a compressed work schedule, i.e., they could work 8.25 or 8.5 hours for four days to shorten the fifth workday. The CAS also indicates the different kinds of leave. Employees must enter that information. If it is not entered, the work schedule will appear by default. As a result, if leave is not entered, the hours of work will appear as though they had actually been worked. The entering of leave is referred to by the expression “time sheets” (which are not physical sheets but refer to entering absences into the CAS using a code to indicate the type).

28        Following the grievor’s work schedule proved to be a complicated exercise, for several reasons.

29        First, the employer and the grievor do not agree on the work schedule. On reading the work schedule for 2008 and 2009, it can be seen that sometimes, compressed work schedules appear (9:00 a.m. to 5:45 p.m.), and sometimes regular schedules appear (8:00 a.m. to 4:00 p.m.). The grievor maintains that she has always been entitled to the compressed work schedule and that it being unable for viewing in the CAS is due to the system itself. Ms. Côté testified that the manager had to allow the compressed work schedule. The employer provided as evidence an email from the grievor’s former manager, Mr. Filion, which indicates that for a given period (April 7 to June 29, 2008), although the grievor believed she was on a compressed work schedule, no agreement had been made for one with the manager.

30        Second, the employer relies on the grievor’s electronic calendar, which shows many appointments, to note her absences. The grievor maintains that many of those appointments were just reminders that she should make an appointment without an appointment being made.

31        Third, another piece of the employer’s evidence is the electronic recording of the grievor’s entries into the workplace with her access card. However, Ms. Gingras, the investigator, highlighted two weaknesses in this system. A person can enter without using a card if another employee holds the door, and the system does not record exits. Therefore, it is impossible to determine when someone arrives or leaves.

32        The grievor gave several explanations to justify her absences in her responses to the questionnaire and at the hearing. Sometimes, it was the compressed work schedule; other times, she worked overtime (which cannot be verified); and other times, she claims to have stayed late, citing emails that were sent late, of which no trace appears in the evidence adduced at the hearing. Finally, she acknowledged that she sometimes took leave and forgot to enter it in the CAS.

33        The investigation also reported on the use of the CRA’s electronic network, property, and time as part of the grievor’s teaching load at the UQAM between September 2004 and July 2008. She reportedly sent 481 emails about courses. She also allegedly met with students at the Montreal or Laval TSOs on five occasions to write exams or for consultations. She testified that those meetings took place outside her work hours.

34        The grievor also acknowledged that she occasionally printed course notes using the employer’s resources (printers and paper). She also acknowledged saving a considerable number of courses on the computer network that she had prepared outside work hours or at home.

35        The investigation report notes that some emails about her teaching were sent during work hours. The grievor emphasized that they were generally short and that they took only a few minutes to write. She added that they could be sent during normal breaks throughout a workday.

36        The investigation report ends with the following conclusion (page 36):

[Translation]

…

The facts collected during this investigation revealed that Carole Pronovost put herself in a conflict of interest when she used the CRA’s electronic network and premises without authorization for personal use relating to her teaching load, which is contrary to the Agency’s Monitoring of the Electronic Networks’ Usage Policy and Code of Ethics and Conduct.

The information gathered during this investigation revealed that Carole Pronovost showed negligence and a lack of thoroughness in preparing, producing, and maintaining her time sheets, which reported on her schedule, despite frequent reminders from management, which is contrary to the Policy on recording and analyzing time and activities. Given the large number of absences that she failed to record in the CAS, and the employer’s inability to determine with certainty that she compensated for the absences with overtime, on a balance of probabilities, she was also paid for hours not worked. It is unfortunately impossible to quantify them accurately.

The information collected during this investigation revealed that Carole Pronovost used the Agency’s time to conduct private business with respect to her teaching load. However, the investigation was unable to confirm whether Carole Pronovost submitted this time to the Agency, as she claimed.

37        Under the terms of a letter dated July 13, 2012, and signed by Ms. Miron, the grievor received an eight-day suspension for the following reasons:

 [Translation]

…

After an analysis, it is my view that you violated the CRA’s Code of Ethics and Conduct by being negligent and by lacking rigour preparing, producing, and maintaining your time sheets, which has resulted in you being paid for hours not worked. Furthermore, you have misused the CRA’s electronic network and property....

You are a team leader, and the employer is entitled to expect that you are especially attentive in complying with the Code of Ethics and Conduct, and as such, you must lead by example.

I considered certain mitigating factors, including your years of service, your clean disciplinary record, and your cooperation throughout the investigation.

Considering the seriousness of your misconduct and the mitigating circumstances, I determined that an eight-day suspension is justified....

38        The grievor testified at the hearing about her career, the tragic events that occurred in recent years, and her perspective on the employer’s accusations against her.

39        The grievor started working for the CRA in 1993 as a senior rulings officer at the AU-4 group and level in Ottawa. She was transferred to the Montreal TSO after her maternity leave in 1996. She then became a technical advisor and in particular provided technical training to auditors and technical advisors. From January 2005 to May 2006, she was the executive assistant to the director of the Montreal TSO. She was also enrolled in the “Direxion” program, which is a government program aimed at training promising employees for senior management positions.

40        On May 19, 2006, her spouse committed suicide. She found herself alone with 3 children, aged 16, 14, and 10. The two youngest discovered their father’s body. It goes without saying that the trauma affected the family, and it caused one of her sons adjustment difficulties for some time.

41        The grievor went on leave from May to September 2006. She returned to work on her doctor’s advice, who thought that working would help normalize the painful situation she was living in.

42        In addition, since 1984, the grievor had been a giving tax courses at the UQAM. She continued to teach after her husband’s death, but she stopped after the winter 2008 session.

43        When she returned to work in October 2006, the grievor asked to be transferred to the Laval TSO, since she lived there, so that she could be more present for her children. The long work hours as an executive assistant no longer suited her, given her need to care for her children, who were still distraught. In April or May 2007, she became a team leader. She got along very well with her manager, Mr. Filion. He worked at the Montreal TSO but dropped by the Laval TSO two or three times a week. The grievor submitted as evidence her performance evaluation for the 2008-2009 fiscal year. The evaluation’s narrative is positive and highlights her initiative and leadership qualities in the following terms:

[Translation]

Carole had a team of seven employees throughout the year under evaluation. Carole closely monitored the file inventories of her employees, and she actively guided and supported them in resolving their cases. On average, the employees on Carole’s team processed approximately 60 files each, which exceeds the expectations of approximately 55 files per employee; the number of hours per file was 17, which is largely below the average of 23 hours per file, and the average number of days to process a file was 9 days, which is less than the expected 120 days. Carole conducted all the performance evaluations for her employees and took charge of all the activities expected in terms of monitoring audit trails of accesses to our systems and O&A evaluations.

Halfway through the year, a troubled employee joined her team. This employee had significant difficulty achieving the expected results and was fleeing reality. Carole welcomed the employee to her team....

After a few weeks, the employee had noticeably increased her productivity. The number of files processed in her first 6 months was 7 and was 26 for the last 6 months of the year. Although this employee left the division for financial reasons, Carole led her to attain an acceptable level of productivity, which is significant. Through her skills in POC in terms of inventory management, Carole was able to help that employee develop working and monitoring methods that will help her in her career.

44        Ms. Côté replaced Mr. Filion in January 2009. Communication was not as good. The three team leaders typically met on Fridays to discuss their common issues. When they brought different things to Mr. Filion’s attention, he would respond quickly. According to the grievor, that was not so with Ms. Côté. The team leaders ended up speaking about it with their union representative, Guy Lauzière. He thought it wise to speak about it with Mr. Bettez, which is contrary to what the grievor wanted. She wanted things settled informally.

45        The grievor met with Mr. Bettez, who she said was rather inflexible. He talked to her about her failure to complete the time sheets, which was a source of constant tension between her and Ms. Côté.

46        At the hearing, the grievor maintained that she had proposed mediation; however, according to Ms. Côté, she had proposed it. In any event, a mediation session was scheduled for the end of January 2010. It never took place due to the grievor’s sick leave. When she returned to work in Montreal in September 2010, she no longer reported to Ms. Côté.

47        The grievor explained that through all those years (2006 to 2010), she personally suffered a great deal. She and her children needed significant time to recover from the tragedy that they experienced. She admitted at the hearing that she had not been diligent enough to fill out her time sheets but that she had been in survival mode at the time. The tension ended up making her sick to the point that the doctor ordered the leave that began on January 6, 2010.

48        On February 22, 2010, she learned that she was under investigation and that she should not return to the Laval TSO, which shocked her. She was not informed of the meeting that Ms. Côté had held with employees on January 6, 2010, and that had been the investigation’s starting point. She did not understand why she could not continue working at the Laval TSO. Her children had problems; she did not want to have to spend extra time travelling to the Montreal TSO. According to the grievor, Mr. Bettez was inflexible. He told her that since she was under investigation, she had to change workplaces, and he provided no further explanation.

49        The grievor had begun going to the Centre de relation d’aide de Montréal (CRAM), which offers therapeutic training but only on weekends. Basically, it helps people understand themselves better so that they can help themselves and others. The CRAM played a very important role for her. It enabled her to make peace with herself and to help her children. One even went to the CRAM for a year, which helped significantly.

50        Ms. Miron testified that one of the factors involved in determining the eight-day suspension without pay was the grievor’s lack of remorse or regret. She appeared to consider herself a victim and did not seem to acknowledge her wrongdoings with respect to using the employer’s property and her failure to report her absences in a timely manner. However, Ms. Miron mentioned the grievor’s cooperation with the investigation.

51        The grievor repeated several times during the hearing that she regretted not having been more attentive to her time sheets and that she had come to understand that it had been unacceptable to store her courses on the employer’s network.

III. Arguments

A. For the employer

52        In its evidence, the employer established misconduct that justified imposing discipline. Furthermore, the discipline was proportional to the misconduct.

53        In her grievance, the grievor alleges that the investigation was marked by procedural unfairness, that it lasted too long, and that she was not kept informed of the investigation’s stages. However, the Board is not bound by the investigation’s results. The hearing before the Board was a de novo investigation, which assured the grievor that her rights were respected (see Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.) (QL)).

54        The evidence shows that the grievor was not thorough with keeping her time sheets. As she admitted, she did not report leave several times. The many failures to record leave leads to a reasonable conclusion that she was paid for hours not worked. Since it was impossible to quantify those hours, the employer did not demand they be repaid. However, the seriousness of the misconduct required a rather severe penalty.

55        The employer details several dates that remain unexplained or dates for which the grievor admits to not having entered her leave. Additionally, in some cases, the grievor states that she worked overtime or that she changed her schedule, without authorization.

56        The evidence also shows inappropriate use of the employer’s electronic network and property. The employer’s Code of Ethics and Conduct allows limited use of its network for personal purposes but prohibits using it for private purposes. However, the grievor admitted to storing her university courses on the network and to emailing her students and the UQAM’s administration. She also admitted to using CRA premises to meet with a student.

57        Since the grievor’s misconduct was proved, it follows that a penalty was warranted. The Board does not have to intervene with respect to the severity of the penalty unless it was patently unreasonable. On that point, the employer cites Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119. International Chemical Workers, Local 721 v. Brockville Chemical Industries Ltd. (1971), 23 L.A.C. 336, states that a reasonable penalty is considered one that is “within the range of acceptable penalties”. The penalty imposed in this case is in the range of acceptable, given the circumstances.

58        The employer considered mitigating factors, such as years of service, lack of prior discipline, and the grievor’s cooperation with the investigation. It certainly felt sympathy for the grievor’s personal situation, but nothing indicates that in 2008 and 2009, the years covered by the investigation, she was not fully fit for work, with no need for accommodation.

59        According to the employer, the grievor’s team lead position is an aggravating factor. She had a duty to lead by example. She had to ensure that her employees were at work. She enjoyed some autonomy, since her supervisor, Ms. Côté, worked at the Montreal TSO. Consequently, she had greater responsibility to diligently maintain her time sheets and to accurately report her work hours. The employer points to a number of arbitration decisions highlighting that employees who betray the trust their employers give them by granting them responsibility and autonomy deserve a penalty as a result (see in particular E.B. Eddy Forest Products Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 31-X, [1998] O.L.A.A. No. 612 (QL); and Simon Fraser University v. A.U.C.E., Local 2 (1990), 17 L.A.C. (4th) 129).

60        Furthermore, the employer cites Murdoch v. Deputy Head (Canada Border Services Agency), 2015 PSLREB 21, in which time theft led to an employee being dismissed. By comparison, an eight-day suspension is very reasonable, especially since in this case, the problem with reporting hours lasted a long time.

61        Finally, the employer commented on the damages the grievor seeks, citing in particular Gatien v. Deputy Head (Department of Human Resources and Skills Development), 2013 PSLRB 101. I will return to the content of that decision in my reasons.

B. For the grievor

62        The grievance challenges the discipline of eight days without pay, but its wording also challenges how the investigation was conducted. As a result, the investigation’s consequences can be considered when the Board decides the corrective measures.

63        The grievor has worked for the CRA since 1993. She began at an advanced level, AU-4, given her training and experience. She had already been giving courses since 1984, an asset of which the employer made good use, particularly through the training she offered to its employees when she was a technical advisor. Before her family tragedy in May 2006, her professional future had been especially promising, as evidenced by her being chosen for the Direxion program, which is a training program for senior management in the public service.

64        The grievor was transferred to the Laval TSO in 2007, at her request, so that she could be at her home more, which was also in Laval. Her manager at the time was Mr. Filion, with whom she had a good relationship. Her performance was more than satisfactory, as shown in the 2008-2009 performance evaluation. Thus, it is false to state that problems existed for a long time. Ms. Côté replaced Mr. Filion in 2009, and the relationship between the grievor and her manager became difficult. The grievor did not feel supported either by Ms. Côté or by her manager, Mr. Bettez.

65        While the grievor was on sick leave, allegations surfaced that contradicted her impeccable profile up to that point. It is paradoxical that the employer stresses the fact that she allegedly did not obey the rules — whether the Code of Ethics and Conduct or the Policy on Computer Networks — while the employer did not obey its own rules, i.e., its Discipline Policy, the Manager’s Guide to Conducting Investigations, or the Procedures for Addressing Employee Misconduct.

66        The employer launched the investigation following the allegations that were made on January 6, 2010. However, they were not subject to a pre-investigation; no attempt was made to determine the truth of the facts as established. The employer was obligated to inform the grievor of the nature and content of the investigation; it did so only once the investigation was underway. When the grievor learned that she was under investigation and that she would be transferred to the Montreal TSO, no one explained to her the nature of the allegations that had been made against her, which was contrary to the employer’s internal investigations policy.

67        The grievor was given a long questionnaire to complete, but the investigation was already underway. She was questioned as part of that investigation and was informed of the results. However, the employer requested a further investigation, without her knowledge. She did not have the opportunity to respond to that further investigation, which would substantiate the suspension’s justification. The second report still contained errors that the grievor could have corrected had she been given the opportunity. Furthermore, she admits that, and did so throughout the investigation, she had occasionally been negligent. However, the investigation and the stress it caused were unnecessary. In the end, after all that work, the number of hours supposedly lost is still unknown.

68        The grievor admitted to using her email account for exchanges with students or the UQAM’s administration. They were brief and isolated. In her mind, it was not clear that the limited personal use that the employer allowed did not include that type of email.

69        The bargaining agent draws a parallel between the grievor’s situation and the facts in Robitaille v. Deputy Head (Department of Transport), 2010 PSLRB 70 (judicial review allowed solely on a specific point of costs in 2011 FC 1218). Mr. Robitaille worked in Montreal as a manager for the Department of Transport. Following a harassment complaint, the employer conducted a long investigation, moved him to its Dorval office, and removed all his staff management responsibilities, with salary protection. The adjudicator determined that the investigation was biased and that certain members of senior management relentlessly pursued Mr. Robitaille, despite the fact that the harassment complaint was unfounded. The adjudicator awarded damages to Mr. Robitaille.

70        In the grievor’s case, she was moved to the Montreal TSO; her move became permanent. She suffered the psychological stress of not knowing what would follow the decisions to investigate her and to transfer her to the Montreal TSO in February 2010. Once again, she had to go on sick leave, and she returned to work only in September 2010 and then only gradually. Despite that treatment from the employer, she still cooperated with the investigation, as Ms. Miron acknowledged. The grievor seeks reimbursement for the costs of her move to Montreal, for parking in particular, and for moral damages she suffered from the demotion. Although she received the same salary, for two years, her position did not involve supervising employees.

71        The bargaining agent cites Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37 (upheld in 2017 FCA 10), in which the Board determined that the employer had made the mistake of not first notifying the employee that her behaviour was problematic. In that case, the investigation into the allegations led to the removal of reliability status and termination, which the Board’s decision overturned.

72        In short, the bargaining agent’s view is that the grievor was treated unfairly and that the employer did not sufficiently consider the factors in her favour, i.e., her clean disciplinary record, her cooperation with the investigation, her personal situation, and the fact that she had chosen to work at the Laval TSO precisely because of her family situation.

IV. Analysis

73        In grievances that challenge discipline, the adjudicator is faced with three questions. Was the misconduct proven? If so, was the discipline proportional to the misconduct? If the sanction was disproportionate, what would a fair penalty be?

74        The starting point of the investigation seems to have been the January 6, 2010, meeting, at which the grievor’s employees allegedly expressed their dissatisfaction to management. They accused her of not being sufficiently present and attentive to her files. She seemed to shorten her hours and to work on things other than the TSO’s business.

75        Curiously, the investigation did not go over those allegations. None of the employees then on the grievor’s team was questioned. The colleagues questioned during the investigation had not worked with her for several years. At the hearing, the only witness who had worked under her supervision during the years under investigation (2008 and 2009), Ms. Robitaille, provided a wholly positive picture, which included in particular the grievor’s presence at the office in the late evening. I also note the 2008-2009 performance evaluation done by Mr. Filion. In its submissions, the employer pointed out that the evaluation was not signed. However, it was not contradicted by the evidence.

76        I do not doubt that dissatisfaction existed within the team. I believe Ms. Côté when she said that the complaints emerged spontaneously. However, I do not know if the dissatisfaction was as widespread at the employer suggests it was.

77        The grievor failed to report her work hours on many occasions and in many ways. The uncertainty surrounding her work schedule was never corrected, and she had the duty to ensure that it did in fact correspond with her work hours. The vagueness brought about by hours that were supposedly worked (as part of a compressed work schedule), which created a right to hours of leave without confirmation in any of the employer’s systems, lent credence to the employer’s doubts of her being rather negligent in reporting her hours. I noted weaknesses in the system used to determine her attendance and absences; however, I believe that she did not notify the employer of her absences on several occasions, which was misconduct that the employer had the right to penalize.

78        However, I do not believe that the grievor’s situation can be equated to that described in Murdoch. In that case, the employee had left work well before the end of his shift five times (he worked the evening shift), and he had lied both on his time sheets and throughout the investigation. The employer’s evidence in that case was irrefutable. Employees’ entries and exits were recorded electronically and via a camera. Furthermore, the nature of the work was such that the employee could not perform it outside the scheduled hours or at home, and since it involved observing individuals identified by security certificates, the employee’s absence could have had serious security repercussions.

79        In this case, the time sheets had to be filled out to indicate leave and not the time worked. The grievor made some omissions and certainly showed a lack of thoroughness, but time theft has not truly been established. It is on a “balance of probabilities”, in the words of the investigation report. Unlike the facts in Murdoch, no quantification is possible. The evidence is contradictory about the grievor’s presence late in the evening and about her making up hours through compensatory time. I understand that overtime had to be authorized, that it was not, and that the grievor could not assume the right to decide her work schedule without her manager’s permission.

80        That said, the mistake seems to me a lack of thoroughness and not time theft. My understanding of the evidence does not tip the balance in the direction of hours paid but not worked. Too much uncertainty remains around when the grievor left and when she was in after the office’s regular hours. The time sheets that Ms. Côté requested many times were finally entered into the system. Therefore, the mistake is not one of depriving the employer of work hours but one of neglecting the duty to report leave in a timely manner.

81        At the hearing, the grievor spoke of the tragic circumstances of her personal life that preceded the events related to the grievance. A heart of stone would be required to not feel deep sympathy for her and her family. Therefore, I would not want the following statements misunderstood or interpreted as meaning that personal life never impacts professional life.

82        Nevertheless, I think that once an employee returns to work after a personal ordeal has kept him or her away, he or she is obliged to provide the employer with the work expected, including the obligation to report his or her hours, in particular by using time sheets.

83        Likewise, the employer has the right to dictate what can be stored on the computer networks that it manages. There is no doubt that the grievor violated the provisions of the Monitoring of the Electronic Networks’ Usage Policy through the amount of files she kept on the network. She also used her employer’s email for paid activities outside the employer’s operations.

84        That said, several points must be made. First, the courses prepared for the UQAM were used at least partially for in-house training provided by the grievor. I believe her testimony on this issue, which the employer did not contradict. Next, it is likely that reflecting on the courses enhanced her work as a specialist with the employer. In other words, the employer derived some benefit from the grievor’s professional activity, which focused on taxation.

85        As for using email to communicate with her students or the UQAM’s administration, the Code of Ethics and Conduct in fact distinguishes between personal use (allowed to a limited extent) and private use (prohibited). No definition or explanation is given to distinguish them. Among the “[translation] unacceptable activities” is found “[translation] use of electronic networks for private or political activities”. The list also includes “[translation] sending abusive, sexist, or racist messages” and distributing trivial documents, such as chain letters. Among the examples of permitted personal use is “[translation] using a portable computer provided to you by the CRA to write a letter to the parents’ committee of your child’s school ...”. In short, the distinction made between “private” and “personal” communication is not very clear. I agree that an employee cannot use the employer’s tools for remuneration ends. However, communicating with individuals, such as students or the UQAM’s administration, falls under personal communication, which is unpaid, occasional, and necessary from a social interaction perspective. The employer is free to prohibit it. Still, that prohibition must be clear.

86        I find it rather surprising that the employer did not submit any evidence of the grievor using the networks for external activities more recently. The meeting on January 6, 2010, suggested that she was busy with external matters. She testified that in fact, she was undergoing training at the CRAM as part of a therapeutic process. However, in the investigation report, only the university teaching is noted, which ended in April 2008, except for this one mention, on page 32: “[translation] Carole Pronovost acknowledged using the Agency’s assets to print the reports that she prepared for her training with the CRAM ...”. In other words, at the time of the investigation, the university teaching was no longer an issue, except for storing the courses on the CRA’s network. The grievor testified that a simple warning would have sufficed for her to remove all the material; I believe her.

87        The grievor spoke about the investigation’s shortcomings, which reportedly deprived her of her rights. She was not informed of the allegations. The investigation was taken up a second time without her knowledge, so she could not respond to the second version of the report. The employer argues that she had the opportunity to submit her version of the facts via the questionnaire and via her responses to the investigator’s questions. And according to the employer, the hearing allowed an independent third party to review all the evidence, which would have corrected any procedural shortcomings, if any existed.

88        The employer is right to state that the hearing consisted in some way of a new investigation, and therefore, it corrected the procedural shortcomings. However, the hearing did not rectify the grievor’s distress when she was informed of the beginning of the investigation and of her transfer to Montreal at the same time, with no explanation. I will consider this fact when I evaluate the proportionality of the penalty.

89        In fact, I have difficulty understanding the usefulness of the investigation. Time sheets were missing, which Ms. Côté had noted. The highly detailed investigation into the grievor’s schedule (a questionnaire with 160 questions, verifying solely entries at the Laval TSO, and verifying leave and an electronic calendar) could not have led to rigorous results, for the reasons explained earlier in the evidence review. The disciplinary letter mentions hours paid but not worked, based on a balance of probabilities, without any attempt to quantify those hours. In other words, the issue was time sheets not being completed. The investigation was unnecessary to establish that fact.

90        The investigation highlights the problem of the relationship between Ms. Côté and the grievor, which was that the work schedule was unclear with respect to a compressed work schedule. The grievor arrived late, but some evidence showed that she also left late. She was not timely about entering her leave, and for that reason, she sometimes forgot to do it. On other occasions, she entered the leave but on the wrong date. The profile of the work absences is indirect and vague.

91        As for the employer’s network, it hosted documents belonging to the grievor. I do not see why the employer was not free to note that via simply examining its network. The investigation’s scope seems to have required a penalty as a result. I am unable to otherwise explain such an excessive penalty — eight days of suspension for a lack of thoroughness keeping time sheets and for storing taxation courses on the network of the agency in charge of taxes in Canada?

92        That said, the fact remains that the misconduct that the employer alleged is proved as concerns the time sheets. The grievor should have paid more attention to keeping her time sheets. She was wrong to not report her work hours more accurately. According to her, the employer should have given her a formal warning before taking action. In my opinion, the meeting with Mr. Bettez in November 2009 should have made it clear to her that the situation was serious and that she should correct it. Failing to fill out her time sheets led to the investigation.

93        The misconduct of using the employer’s networks and email is also proved. The grievor also allegedly used its premises, although the evidence for it is rather weak. I believe that using the premises once was established. Otherwise, it involves appointments scheduled during a break, and the meeting place is not clear. The fact remains that the grievor should have known that she could not use the employer’s networks to store her courses and to distribute marks to students.

94        The analysis of the proportionality of the penalty includes several elements: the mitigating factors, the aggravating factors, and the principle of progressive discipline.

95        I will start this section of the analysis with the mitigating factors. The grievor is a long-time employee who has proven her professionalism. According to the evidence, she did excellent work for the employer and had a clean disciplinary record. Her misconduct did not endanger the employer’s activities, property, or staff. The employer did not submit any evidence that the network use caused it the slightest problem. Furthermore, it allowed the course documents to be hosted on its networks for a long time, without making the slightest comment. The grievor cooperated with the investigation and admitted her mistakes.

96        Another mitigating factor in this case could be equated to a sentence served in pretrial custody. The fact is that the investigation, which I consider largely unnecessary, lasted a long time. (I note that the duration of the investigation can be partially attributed to the parties’ negotiations on another grievance.) The grievor maintains that her transfer to the Montreal TSO was due to the investigation, while the employer speaks of an administrative measure to protect the Laval TSO’s employees. There is certainly a link between the transfer and the investigation; it is the allegations Ms. Côté received on January 6, 2010. I am not ready to state that the employer did the wrong thing by moving the grievor. The situation is quite different from that of Robitaille, which the bargaining agent cited. I believe that Mr. Bettez was correct when he worried about the reaction of the employees who complained about the grievor’s behaviour, were she returned to the Laval TSO. Perhaps the situation could have been managed another way, but I see no malice in the employer’s reaction to move the grievor.

97        However, I believe that when calculating the penalty, the punitive effects on the grievor of the investigation being conducted without her knowing exactly why it was being conducted and a position change that resembled a demotion despite her salary being maintained, because she was no longer a team leader, must be considered. This situation was still ongoing when the suspension was imposed in July 2012, more than two years after the investigation was announced in February 2010. Only shortly after that did the grievor returned to a team leader position.

98        As for the aggravating factors, it is true that as a team leader, the grievor had to demonstrate exemplary conduct; besides, she was in charge of her employees’ time sheets. As a team leader, she had to be aware of the employer’s policies on using its networks and property.

99        The principle of progressive discipline is well established in labour law and is found in the employer’s discipline policy, which the bargaining agent pointed out. The principle was not observed. The employer has a role to play to ensure its rules are followed, but as indicated in its code of discipline, the role consists of correcting rather than punishing. It seems to me that correction begins with a clear reminder.

100        The alleged misconduct, considering the mitigating factors, the ambiguity of the time evidence, and the past (and permitted) character of using the networks, merited a letter of reprimand, which would have been a starting point for more severe penalties if the grievor did not obey. Her cooperation with the investigation, willingness to admit to her mistakes, and respectable career within the CRA all lead me to believe that a written reprimand in her file would have sufficed.

101        Furthermore, in her arguments, the grievor argued that I should also consider damages for how the investigation was conducted and for its consequences, notably the transfer to the Montreal TSO.

102        The employer challenged that request because it is beyond the scope of the grievance of which I am seized. The grievor filed a second grievance about being transferred to the Montreal TSO. The parties tried to reach a settlement on it, but they failed. The second part of the investigation, which Ms. Gingras was tasked with, began only after that failed negotiation. The employer submitted that the only grievance referred to adjudication was the one on the eight-day suspension.

103        The bargaining agent responded to this argument, stating that the grievance’s wording allowed for a broader reading of the corrective measures that could be considered. The grievance and the corrective measures sought read as follows:

                   [Translation]

I challenge the discipline - the eight-day unpaid suspension that the employer imposed on me on July 13, 2012.

This suspension is the result of an investigation report and its supplement, the conclusions and allegations of which are false and unfounded. The reports are abusive and harmful in terms of their content. I also challenge the harmful and abusive delays completing the reports and the period they covered.

[Corrective measures sought]

The cancellation and reimbursement of the pecuniary losses incurred due to the discipline: the eight-day suspension imposed on July 13, 2012.

The reimbursement of pecuniary losses and the legitimate damages that we will demonstrate.

The complete destruction of the documents of the investigation, the supplementary investigation, the disciplinary hearing, the discipline, and any other note or mention appearing in my personal file that is negative about me with respect to the unjustified investigation.

104        I am not ready to extend the scope of the grievance beyond the suspension grievance. The move to the Montreal TSO was the subject of another grievance, which was withdrawn. The proposed remedy can be used only to correct the situation caused by the suspension, i.e., the eight days without pay.

105        The bargaining agent cited Robitaille to justify awarding damages. I believe that many distinctions can be made with respect to that decision.

106        First, Mr. Robitaille filed several grievances against several things, including the conduct of an investigation and the measures imposed on him. Therefore, the decision responded to those grievances. Next, the harassment complaint, the very reason for all the actions taken against Mr. Robitaille, proved unfounded. In this case, the allegation of misconduct is founded, even though there are doubts about the seriousness of the misconduct or the proportionality of the penalty. Finally, the employer did not exhibit the relentlessness and blindness of Robitaille. It believed in good faith that the investigation was necessary and that it was necessary to separate the grievor and the employees who reported to her. The transfer to the Montreal TSO was a prudent administrative action that unfortunately had negative consequences for the grievor. I considered those consequences with respect to the size of the penalty that should be imposed.

107        I believe that the assessment of the grievance is more similar to the assessment done in Gatien (upheld by the decision of the Federal Court of Appeal in Canada (Attorney General) v. Gatien, 2016 FCA 3), in which the employer had punished the employee for inappropriate behaviour after poorly defending her in a workplace violence situation. In that matter too, the employee sought damages to compensate for the harm suffered, but the adjudicator ruled that reimbursing her for the days of suspension sufficed to resolve the matter. Relying on the reasoning in Honda Canada Inc. v. Keays, 2008 SCC 39, the adjudicator pointed out that unless there is additional harm, there is no reason to compensate for an unfair suspension other than by reimbursing it. He wrote the following at paragraphs 114 and 115:

... I am aware of no case law in which damages were awarded in a case involving a suspension.

I suspect at least one of the reasons damages have not been awarded in suspensions is that adjudicators have the authority to modify suspensions if they are deemed too severe, as I have done. There is no loss of employment in cases of suspension, and the grievors can recover some or all of the monies lost if the penalty is altered. Such is not the case in terminations.

108        In this case, I received no evidence of additional harm, and I was not seized of the grievance about the transfer to the Montreal TSO, which was withdrawn.

109        The investigation report’s findings are not “[translation] false and unfounded”, as in Robitaille. They are rather sensible. In my view, the facts have been proven, i.e., the lack of thoroughness in reporting leave and using the electronic network for purposes other than the employer’s work. That said, using that report led to an excessive penalty, as I have already shown. As in Gatien, I feel that reimbursing the eight days of suspension is the appropriate redress.

110        There is no need to award damages. However, the events surrounding the investigation add to the mitigating factors, as I have shown. Considering the principle of progressive discipline, the mitigating factors, and the fact that the mistakes the grievor made did not endanger the employer’s activities, property, or staff, I believe that the appropriate penalty would have been a letter of reprimand. Given the time that has elapsed and the provisions of the Discipline Policy on deleting discipline within the time prescribed by the collective agreement, no order will be made in that respect. However, since lesser discipline would have been appropriate, the grievance is allowed only in part.

111        In her grievance, the grievor sought the complete destruction of the documents related to the discipline. The employer will need to ensure that those documents will no longer be found in her file.

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

V. Order

113        The grievance is allowed in part.

114        The suspension is cancelled, and the grievor shall be paid the salary for the eight days of suspension.

115        The employer shall remove all documents relating to the discipline from the grievor’s file.

April 25, 2017.

PSLREB Translation