FPSLREB Decisions
Decision Information
Termination (disciplinary) - Criminal charges - Unauthorized use of government long distance telephone system - Removal of confidential government files - Unauthorised involvement in criminal investigation - grievor, who had been with the RCMP for more than 20 years, was employed as Manager, Law Enforcement, in the National Resources Branch of Parks Canada - the basic functions of law enforcement focused on resource protection and the maintenance of public peace on all lands under Parks Canada - on March 31, 1994, grievor was arrested while trying to pass counterfeit American bills at the Ottawa airport - he was charged by the local police with possession of and uttering counterfeit American currency - the employer removed the grievor from active duty - on April 20, 1994, employer advised grievor that he was suspended with pay pending the outcome of its investigation into his activities - in October 1994 employer became aware that grievor had been using his government calling card for long distance calls even though he was suspended from duty - when confronted with this, grievor stated that he had been using the card to organize his defense and to look for another job - employer immediately cancelled his card - on January 6, 1995, grievor was discharged from employment for the alleged destruction of government files, the unauthorised use of the government intercity telephone network for personal long-distance calls, his unauthorized involvement in a counterfeiting investigation and for having been charged with possession of and uttering counterfeit U.S. currency - subsequent to his discharge, grievor pleaded guilty to the uttering charge and received a conditional discharge with 15 months probation - adjudicator pointed out that the time for determining just cause is at the time the employee is discharged - as a general rule, the fact that an employee has criminal charges pending against him will not be grounds for discharging him from employment although in an appropriate case it may be grounds for suspending him either with or without pay pending the resolution of the charges - at the time the employer discharged the grievor, the criminal charges pending against him had not been dealt with by the appropriate court - accordingly, the employer cannot rely on the outcome of these charges to support its decision to discharge the grievor - however, adjudicator concluded that grievor's discharge was justified on the basis of the other acts of misconduct which he had committed - although grievor had not destroyed them as he originally claimed, he had removed from the office confidential files that listed informants with a view to depriving others of access to the files - the files were ultimately returned to the employer - nonetheless grievor had no right to attempt to deprive his supervisor of access to these files - furthermore, there was no dispute that while he was suspended grievor made long distance calls over the Government telephone network for purposes which were not work-related and which were not authorized by the employer - similarly, grievor's involvement in a counterfeit investigation in Halifax was not appropriate - the grievor should have advised his employer of the information that he had received from an informant and let his employer deal with the proper authorities at that time - penalty was justified under the circumstances. Grievance denied. Case cited: Cie Minière Québec Cartier v. Québec (Grievance Arbitration) 1995 2 S.C.R. 1095.
Decision Content
File: 166-2-26426 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN CLAUDE SCOTT Grievor and TREASURY BOARD (Canadian Heritage - Parks Canada)
Employer
Before: Richard Labelle, Board Member For the Grievor: Michael Tynes, Public Service Alliance of Canada For the Employer: S. Maureen Crocker, Counsel Heard at Ottawa, Ontario, October 31 and November 2, 1995 and May 7 and 8, 1996.
Decision Page 1 DECISION The grievor, Mr. Claude Scott, who was employed as Manager, Law Enforcement (PM-6) in the National Resources Branch of Parks Canada, which at the time was under Environment Canada, grieves his discharge from the Public Service of Canada effective January 6, 1995. The reasons for his discharge are contained in a letter to the grievor, dated January 6, 1995, from Mr. Mel Cappe, Deputy Minister, Environment Canada (Exhibit E-14): Pursuant to the authority delegated to me under Section 11(2) of the Financial Administration Act (FAA), I hereby inform you of my decision to terminate your employment from the Federal Public Service of Canada. The termination of your employment is to take effect on the date of this letter.
The position you hold necessitates a strong bond of trust between the employer and yourself and requires the respect of, and a high degree of co-operation with, other law enforcement agencies such as the RCM Police. Your destruction of confidential government files, your unauthorized use of the government intercity telephone network for personal long-distance calls while suspended from duty and your admitted unauthorized involvement in a counterfeiting investigation in eastern Canada earlier this year have destroyed that bond of trust. Further, regardless of the outcome, the fact that you have been charged by the Gloucester police with possession of and uttering counterfeit U.S. currency under the Criminal Code has impaired your reputation with the law enforcement community and your consequent ability to function effectively with your colleagues.
All final salary and benefit entitlements, less any monies owed the Crown for the unauthorized long-distance calls, will be issued to you as quickly [as] possible on the basis of a termination of your employment pursuant to section 11(2)(f) of the FAA.
Pursuant to article 91 of the Public Service Staff Relations Act, you have the right to submit a grievance regarding this decision.
Six witnesses testified: for the employer: Brett Moore, Beverley Jane Roszell, Michel Dessureault and Michael Porter; for the grievor: Walter Leigh and the grievor himself.
The grievor’s representative requested the exclusion of witnesses and I granted this request. Public Service Staff Relations Board
Decision Page 2 The employer’s first witness was Mr. Brett Moore who at the time was Chief of the Resource Protection Division for Parks Canada. Mr. Moore reported to the Director of the Natural Resources Branch. The witness stated that the grievor, Mr. Scott, joined the Branch in 1988 and reported directly to the Director. The grievor’s section came under Mr. Moore’s supervision when the grievor took on the position of Manager, Law Enforcement.
Counsel for the employer tabled Exhibit E-2, the job description for the Manager, Law Enforcement position. The basic functions of law enforcement focused on resource protection and the maintenance of public peace on all lands under Parks Canada. The grievor had peace officer status.
The witness testified that the grievor had responsibilities as Head of Personnel, had direct financial authority for his section’s budget (O&M) and managed the transfer and disbursement of funds and interaction of staff.
Reference was made to page 3, paragraph 4 of Element 1, of Exhibit E-2, concerning joint operations bringing together a number of agencies, and to page 5, paragraph 7 of Element 3, where it states: Element 3: Thinking Challenge The work involves; .... Directing the development and application of a national intelligence gathering system involving the collection, evaluation, analysis and dissemination of criminal intelligence.
The grievor was responsible for hiring individuals for the Intelligence Section. He was in contact with the Royal Canadian Mounted Police (RCMP), regular contact on overall programs, training and links with the local detachment of the RCMP, and the sharing of information with the RCMP.
Reference was also made to page 7, Element 3, of Exhibit E-2: Element 3: Responsibility for Financial Resources The Manager has delegated signing authority under the FAA for an O&M budget to cover expenses incurred for both covert and investigative activities ($10,000-$50,000) as well
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Decision Page 3 as the funds under the Green Plan Law Enforcement Initiative ($500,000).
The Manager has responsibility for managing large sums of money ($5 to 50K) necessary in special operations. The Manager has direct authority for a Vote 121 fund of $100K for special investigations.
The grievor was responsible for financial resources. He signed everything but his own travel authority.
Counsel for the employer also tabled Exhibit E-3, a Memorandum of Understanding (MOU) between the Royal Canadian Mounted Police and the Department of the Environment, Parks, entered into on June 11, 1987. Reference was made to page 38, paragraph 3, whereby the parties agreed: 3. That, the R.C.M.P. has responsibility to detect, investigate and process breaches of the Criminal Code or other federal statutes where it is the police force of prime jurisdiction. Parks enforcement officers, while performing assigned duties on Parks property, shall notify the R.C.M.P. as soon as possible of any observed or reported breaches of the Criminal Code and other federal statutes and regulations pursuant thereto so as to facilitate the prompt investigation and processing of these offences by the R.C.M.P.
The witness testified regarding the events which occurred on March 31, 1994. He said that he received a telephone call from Mr. Walter Leigh who said that the grievor had been arrested for an offence concerning counterfeit money. He had in his possession U.S. dollars and had been arrested trying to pass through the Ottawa airport. Mr. Leigh was an intelligence officer who reported to the grievor.
The grievor was taken off active duty. He was distressed at the time. He was suspended from duty, with pay, until the issue was resolved. He was given directions not to come back to his workplace until the issue of his arrest was resolved. The witness advised Mr. Leigh of this on April 1, 1994. Mr. Leigh confirmed the message and passed it on to the grievor on the same day.
Counsel for the employer tabled Exhibit E-4, a letter dated April 20, 1994 addressed to the grievor from Jane Roszell, Director General, National Parks. The letter
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Decision Page 4 outlines the grievor’s employment status in view of the charges that were brought against him on March 31, 1994 by the Gloucester police. It reads as follows: The purpose of this letter is to advise you of your employment status with respect to the charges which were brought against you on March 31, 1994 by the Gloucester police.
The fact that you were charged with two offenses under the Criminal Code while off duty is incompatible with your responsibilities as the Manager, Law Enforcement for Parks Canada. The charges brought against you render you incapable of performing your duties, would prevent the Department from efficiently carrying out its enforcement functions were you to remain in the position and could harm its reputation. It is for these reasons that the ADM has agreed to grant you leave with pay for other reasons, until further notice.
During the period of your leave, the Department will be reviewing your situation, considering its options and investigating your activities as they relate to the charges that have been brought against you. If the facts prove that you willfully possessed and/or attempted to pass counterfeit currency, as alleged by the police, your activities would constitute a serious breach of the Code of Discipline and would warrant the imposition of a disciplinary measure, up to and including termination of employment.
The imposed leave, with pay, is for an indefinite period of time and will be reviewed with you periodically. I advise you that, until further notice, you are not to be involved in any activities related to the functioning of the Department of Canadian Heritage with particular reference to Law Enforcement. During the period of leave, and since you are still being paid, we require that you phone your supervisor, Mr. Brett Moore, every work day at approximately 9:00. He can be reached at 994-5535. While on leave, you are prohibited from being on the Employer’s premises without prior notification to Mr. Moore who will make any necessary arrangements.
If you consider the above action unwarranted, you are entitled to present a grievance in accordance with Section 91 of the Public Service Staff Relations Act.
Please contact Mr. Moore at 994-5535 should you require any additional information or clarification concerning the contents of this letter.
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Decision Page 5 The grievor told the witness that he understood that this was standard procedure.
The witness also testified about the circumstances of April 2, 1994. The witness stated that on the Tuesday of the following week he was made aware that the grievor had shredded some files over the weekend of April 2nd and removed material from his office. This was confirmed by the commissionaires at the grievor’s office. An objection was raised by the grievor’s representative at this time to the admissibility of this evidence and I took it under advisement. Having considered the matter, I believe that this evidence is admissible as it is clearly relevant to the allegations raised against the grievor by the employer.
The witness stated that Mr. Leigh showed him that the shredder had been used. The grievor had come back to his office with his wife and son. Apparently, informant files were missing from his office. Mr. Moore asked Mr. Leigh to conduct an audit of the files.
The law enforcement offices were set up differently from the other offices: wire mesh walls; security locked filing cabinets and files; security locked offices; protected B and C classification documents. Some of these documents related to operations; there were specific files on informants and coded files - a two-file system code for informants. The first file had the name and code number and the second file had the code number and information on contacts and/or financial information. The grievor kept records. He also witnessed occasions when money was passed to informants. The files were kept separate to protect the informants and code numbers from being known.
Counsel for the employer tabled Exhibit E-5, a memorandum from the grievor, dated September 24, 1992, to all regional law enforcement specialists. Counsel referred to page 9, subsection 22.14.2.: 22.14 SOURCE RECORDS ... 22.14.2. Sources records will be stored as per departmental security manual for protected information.
Counsel for the employer also referred to section 22.14.9.:
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Decision Page 6 22.14.9. The MLEO will retain the master file and inform the RLES/handler(s) of code numbers.
The witness stated that the grievor retained the master files of the MLEO (Management Law Enforcement Operations).
Counsel for the employer also referred to page 13, section 22.16.6. which details the responsibilities of the grievor in regard to payments: 22.16.6 Manager, Law Enforcement Operations Upon receipt of a request for payment of a source, ensure that:
22.16.7. the source qualifies to be coded or is already coded.
22.16.8. the amount of money requested is proportional with the information/work provided to the Service taking into consideration the risk involved and the past track record of the source as an informer/agent.
22.16.9. request from CPS Finance Department that a cheque be issued in the name of the handler requesting payment for the source, by submitting a cheque requisition.
22.16.10. upon receipt of the cheque, send it by registered mail to the handler.
Counsel for the employer tabled Exhibit E-6, an example of an informant file, the nature of the files held in the Branch for informants. It is an assessment file on informants with the individual’s identification and each file also indicates who the handler was for the informant. Mr. Scott was identified as a handler in cases of some informants to protect the identification and safety of Parks Canada officers. Only these individuals dealt with informants. They worked in pairs when dealing with paying out money to informants.
The witness stated that on the Tuesday after April 2, 1994 he was made aware of the missing files. The grievor said the files had not been shredded in his office. He stated that he had removed the files from the office in September 1993 and had then destroyed them. The grievor also told Mr. Leigh that after his arrest he was worried so he went back to his office to retrieve some personal items. He did that because he was worried that he might be barred from entering his office if he waited too long.
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Decision Page 7 The witness, Mr. Moore, testified that he contacted the RCMP because he was concerned about the shredded files and also about the charges of possessing and uttering counterfeit money laid against the grievor. He testified that the grievor told him that he had shredded personal notes and that the files were removed in September 1993 and destroyed because he was concerned about the safety of documents. The witness was concerned about the sensitive nature of the information and that it might get into hands outside departmental control. Prior to this, the witness had not been aware that the files had been removed. The grievor had never before mentioned that he had removed the files in September 1993. The witness was asked why he thought the grievor had removed and destroyed the files. He replied that the grievor was concerned about other people having access to these files by going through the Access to Information Act.
The witness stated that the grievor met with Mr. Leigh and a Mr. Larry Ormsbee and that the grievor reiterated that the documents were removed and destroyed and therefore there would be no cause for security concern. These files had information on informants and concerned dealings with other agencies. Informants could be placed at risk, according to the grievor, if the information fell into the wrong hands.
Counsel for the employer tabled Exhibit E-7, a memorandum dated July 6, 1994 from Mr. Larry Ormsbee to Mr. Denis Thompson relating to “Breach and Destruction of Protected B & C Informant Information”. He referred to paragraph 3a. He also tabled Exhibits E-8 and 8(a). These documents were in a particular informant’s file.
Reference was made to page 2 of Exhibit E-7: e. Claude stated that in about September 1993, he realized he could not keep control of the information due to circumstances at work, and therefore decided to destroy them to protect the informants identity and maintain their safety. He added that he thought he destroyed about 4 or 5 informant files, and 2 or 3 agent files. Each file had about two pages in it. (This is contrary to the last report which indicated the files were destroyed during the Easter week-end.) Claude added that he never felt the files were official departmental information and further, felt a personal responsibility to destroy the information rather than have it fall into the wrong hands, or be improperly controlled.
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Decision Page 8 Counsel for the employer tabled Exhibit E-9 a memorandum dated August 16, 1993 to the grievor from the witness, which reads as follows: Subject: Return to Work 16 August, 1993 Changes/Conditions of Work
Given your absence from the office and the recent problems with behavior in the work place, in particular the utterance of threats against individuals in the office (May 17, 1993), this memo is intended to clarify the conditions that will apply for your return to work as well as the consequences of further disruptions. It will confirm those topics discussed this AM, 16 August, 1993.
Over the past few months it has become apparent that certain difficulties related to work relationships have escalated to the point of being critical. In response to these and other program needs, changes have been made in the operational protocols for the program and office. It is vital that we discuss the needs, the changes and ensure a common understanding of how we will function for the future. We will work together putting the final directions in writing to ensure a common frame of reference. However, it is essential that it be understood that direction is to be followed and lines of authority respected.
1) I have and will retain keys for access to all offices under my direct supervision. There will be no filing cabinets or operational files under lock for which I do not have a key or combination.
2) I feel it necessary and opportune to institute changes in the approval mechanism for nationally funded operations. These are based in part on discussions with H.Q. and Regional staff. In addition security and accountability have been major topics throughout the last 6 months. I feel it necessary to ensure that I have a positive opportunity to track nationally significant special operations. In future, all enforcement operations approved at HQ are to have 2 signatures at the regional level and 2 at the national, one of which must be mine or my designate. Recommendations from regions relative to financial procedures will require some discussion between all parties before a new set of protocols are reached.
3) Communications with regions, with the exception of those requiring secure transmission, will be through established systems for correspondence. This will ensure records are kept of directions and conclusions. All traffic via CIPC terminals should be filed to the particular operational file involved or if not sensitive to the regular registry system.
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Decision Page 9 4) The nature and scope of your duties combined with the increasing need for national program policy and direction reinforce the need for greater emphasis on office rather than field activities. You and I in concert with regions will develop a detailed strategy and timeline for developing the necessary instruments.
4)(sic) During your absence, some ammunition was removed from your filing cabinet. This has been returned to you as I understand it to be personal property. Given that there is no job related need for such materials in the workplace, it and the holsters in your cabinet are to be removed from the office. No firearms, ammunition or other materials construed as a weapon will be kept in the workplace.
5)(sic) National Health and Welfare has confirmed that you are fit to return to work. That and your commitments of this AM indicated that you are ready to resume your full duties. Should there be further problems of a misconduct or performance nature they will be subject to disciplinary action up to and including termination of employment.
Given the personal and professional pressures you are undergoing at this time you might consider seeking professional counselling. This might assist you in accepting and adjusting to the requirements of your job. If you require assistance or referral for assistance, the Employee Assistance Program (EAP) is there to help.
Should you decide that, given recent developments, the best route is to explore other job opportunities I am prepared to work with you to look for alternatives. I am also sure that Personnel would be willing to assist in identifying options and avenues. It is essential to both your wellbeing and that of the organisation that we ensure a good fit between your capacities/desires and the needs of the program.
This has not been an easy time for either you or the program. I am committed to working even more closely with you in ensuring timely and clear understandings as to the needs of the program and how we will strive to achieve a mutually satisfactory product. I have no doubt there are challenges before us but also that they can be dealt with effectively.
Rather than placing this memo on open file it will be placed in your personnel file as a record of conversation.
The witness appreciated the sensitive nature of the files. He told the grievor that he needed access to the office and the files but this was not for auditing purposes.
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Decision Page 10 The grievor disagreed with this. He mentioned this to Mr. Moore’s supervisor. The grievor grieved the existence of Exhibit E-7 and reference was made to paragraph (e) on page 2. The grievor felt that these files were his personal notes and not the Department’s.
The witness testified that he became aware that the grievor was using his Government calling card sometime around October 1994. He was made aware of this by the financial officer of the Department and was told that the charges were high. The grievor was not on duty at this time since he had been suspended effective April 20, 1994. The grievor indicated to the witness that he was using the card in order to organize his defense against the charges filed and also to look for another job. Counsel for the employer tabled Exhibit E-10, a memorandum to the grievor from the witness, dated October 18, 1994, and Exhibit E-10(a), a photocopy of the GTA calling card. Exhibit E-10 reads as follows: Present Status and Use of GTA Calling Card I recently (17/10/94) became aware of your continued use of your GTA Government Calling Card for personal purposes. I am providing this memo to ensure your understanding of the situation and the actions intended.
As you are well aware GTA Cards are not to be used for other than government business. You have been suspended from duty (Special Leave with Pay) since April of this year. This situation was communicated to you in writing and has been further reinforced through our regular conversations. Your status did not include continued performance of any duties as an officer of this department. Based on your explanation of the calls as related to your court case, defense and looking for another job, I will be confirming the facts before taking action. At the very least, those calls related to your legal defense are not appropriate to charge to the government.
The documented use of your GTA Card during July, 1994 has resulted in charges on the order of $393. I have reason to believe that some or all of these charges were for personal purposes. This constitutes unauthorized use of the card.
I have taken action to have your GTA account cancelled. I have requested a printout for the period April 1, 1994 to date. This will confirm and document any other use of this card that may have resulted in additional unauthorised expenditures. Action will be taken to recover those charges associated with personal use. I will also be taking action with
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Decision Page 11 respect to determining appropriate disciplinary action. The disciplinary action may be up to and including termination of employment.
You were advised by phone yesterday (18/10/94) of this situation. I am providing you with a copy of this memo so there will be no doubt as to the facts or intentions.
If you are unsure as to your rights in this matter, you may wish to contact your Union Representative. You will be advised in writing of any disciplinary sanctions to be imposed.
The witness testified that the grievor was not the only person subject to a review by the Department at that time. Counsel for the employer tabled Exhibits E-11, ”Authorization Code Call Detail Report”, Exhibit E-11(a), notes prepared by Mr. Ormsbee, and Exhibit E-12, telephone charges for the months of April to September. The grievor never denied using the calling card. The witness wanted to make sure that the use of the card was for legitimate Government business (see Exhibit E-13). He was concerned about the grievor using his card at the time that he was suspended from his duties. According to the witness, the grievor could not justify the use of his calling card and offered to repay the cost of the calls. The total cost for the calls came to $1,454.92.
The witness stated that the grievor was not able to justify the use of the calling card by establishing that the use was for legitimate Government business. He testified that the grievor never acknowledged that it was inappropriate to use the calling card. The money was recovered by the Department when the grievor received his termination and severance package.
The witness testified that upon his suspension the grievor was asked to phone in to Mr. Moore regularly, which is standard procedure. He also stated that the grievor did call in regularly.
The witness testified that the grievor spoke to a Mr. Paul Thériault of the Commercial Crimes Section of the RCMP about information with respect to a counterfeit operation on the East coast. Mr. Thériault asked the witness if he was aware of the grievor’s involvement and he replied that he was not. This first conversation with Mr. Thériault took place on July 7, 1994. Mr. Thériault asked the witness what the grievor’s role was at the office and about links with counterfeit
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Decision Page 12 operations. The witness replied that any involvement on the grievor’s part was without his knowledge or approval. A second conversation took place on July 13, 1994. The grievor mentioned to Mr. Thériault that he was apparently working with some U.S. authorities on this counterfeit operation. The witness, Mr. Moore, was also unaware of this. Mr. Thériault told the witness about the grievor giving information to the U.S. Secret Service in a letter and that the grievor said the RCMP was not willing to pursue this issue.
The witness spoke to the grievor about his concerns regarding his involvement in the investigation into the counterfeit operation on the East coast. The grievor replied that he was specifically assisting the police on the East coast; he had been asked to do so by the police and he had passed on information to the local police and to the U.S. Secret Service. He suggested that he had told the Director General of the Department that he was involved in this investigation. The grievor indicated that Mr. Leigh was made aware of this investigation and Mr. Leigh confirmed this. The grievor outlined to the witness information concerning counterfeit U.S. one hundred dollar bills. The grievor checked the numbers on these bills and said that he telephoned the RCMP in Ottawa and Montreal about this.
The witness stated that the grievor told him that he had assembled information in some sort of package and had sent it to the U.S. Secret Service. He was under the impression that the grievor had been asked for assistance on this issue by the police. He stated that the grievor said it was his responsibility as a peace officer to pass on this information. The witness told the grievor that he should have passed this on to the correct authorities, the RCMP. The witness had no way of knowing if the RCMP and/or the Ottawa, Montreal and Halifax police were following up on this or not.
Mr. Thériault alerted the witness about the grievor’s involvement in the counterfeit operation. The grievor was involved to the extent of assembling information that he was then passing on to authorities. The witness stated that this was not under the grievor’s jurisdiction. If he intended to pass information to the U.S. authorities, the normal procedure would be to go through the RCMP, who are our national police force of jurisdiction, and they would contact the U.S. authorities. The witness testified that the grievor had never asked for or received approval for this work from the Department.
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Decision Page 13 Counsel for the employer tabled Exhibit E-14, the termination letter. The witness was involved with management and staff relations in drafting this letter. Reference was made to the second paragraph where it is indicated that the position held by the grievor necessitated a strong bond of trust between the employer and the grievor and required the respect of, and a high degree of cooperation with other law enforcement agencies such as the RCMP. The destruction of confidential government files, the unauthorized use of the government intercity telephone network for personal long-distance calls while the grievor was suspended from duty and his admitted unauthorized involvement in a counterfeiting investigation in eastern Canada earlier had destroyed that bond of trust. Also, regardless of the outcome, the fact that the grievor had been charged by the Gloucester Police with possession of and uttering counterfeit U.S. currency under the Criminal Code had impaired his reputation within the law enforcement community and consequently his ability to function effectively with his colleagues.
The witness stated that the grievor’s view was that he was fully justified in doing what he did. It was his right and role to deal with these files. There was no reason to believe that he would behave differently today. Also, the witness testified that the grievor saw nothing wrong with using the Government telephone calling card for personal matters. Therefore, there is no more trust left now between the grievor and his employer, the witness stated. The grievor did not see fit to inform the witness of his involvement in the counterfeit investigation in eastern Canada.
The charges by police of possession and uttering of counterfeit money were pending but even without a guilty plea the Department was ready to terminate the grievor’s employment. Counsel for the employer tabled Exhibit E-15 which shows that the grievor changed his plea from not guilty to guilty on the uttering charge. The grievor was handed a conditional discharge with 15 months probation. The witness stated that there were enough other reasons to terminate the grievor’s employment: the guilty plea; the fundamental problem of working with other agencies; impact to perform his duties - (1) security clearance and (2) security issue: he pleaded guilty and was found guilty by the Court. The witness stated that the role of a peace officer is based on a certain degree of trust. The witness stated there was no reason to doubt the grievor’s trustworthiness until the calling card incident. He stated that he could not reinstate the grievor unless changes were made to the security procedures of the Public Service Staff Relations Board
Decision Page 14 Department. When asked if he could work again with the grievor, the witness replied “No” and stated that the grievor mentioned that he himself could not work with the witness. The witness stated that this trust has been shattered not only because of the type of incident but also the grievor’s failure to inform him about the investigation relating to the counterfeit money and the misuse of the calling card. Also, when the grievor was confronted, the witness stated that he was given dishonest answers.
Counsel for the employer tabled Exhibit E-16 which indicates that the files were returned by the grievor after he had said that the files had been destroyed but in reality they had not been. When tabling Exhibit E-16, reference was made to Exhibit E-7, a memorandum dated July 6, 1994 from Mr. Larry Ormsbee to Mr. Denis Thompson, which states: e. Claude stated that in about September 1993, he realized he could not keep control of the information due to circumstances at work, and therefore decided to destroy them to protect the informants identity and maintain their safety. He added that he thought he destroyed about 4 or 5 informant files, and 2 or 3 agent files. Each file had about two pages in it. (This is contrary to the last report which indicated the files were destroyed during the Easter week-end.)
Counsel for the employer referred to a letter dated March 28, 1995 signed by T. Lee, Assistant Deputy Minister, Parks Canada, addressed to the grievor. It reads as follows: I am writing in reference to your grievance presentation of January 6, 1995, with regard to the Department’s decision to terminate your employment from the Federal Public Service of Canada pursuant to section 11 (2) (f) of the Financial Administration Act.
Following the grievance hearing held in my office with you and your representative, Mr. Lloyd Fucile, of the Public Service Alliance of Canada, I reviewed the information before me. The facts remain that:
• you did remove departmental informant files without proper authorization, and made false statements that they had been destroyed;
• you did use the GTA calling card for unofficial calls, in the amount of $1,454.92;
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Decision Page 15 • you did not provide any specific evidence which would counter the information the Department possesses regarding your unauthorized involvement in a counterfeit investigation in Eastern Canada; and
• you were charged by the Gloucester police with possession of and uttering counterfeit U.S. currency.
The foregoing has impaired your ability to work within the law enforcement community. Given that there is no evidence before me to refute any of the above facts, your grievance is denied.
Finally, you stated to me at the grievance hearing that you were in possession of informant files belonging to the Department. I am hereby requesting that these files be returned to me within 48 hours of your receipt of this letter.
Under cross-examination, the witness, Mr. Moore, testified that he was not the grievor’s original supervisor but a decision had been taken by the Director General of the Department to move the grievor’s unit within the witness’ division.
The witness stated that he has never had any direct experience in law enforcement or any law enforcement training outside of two weeks in Jasper given by the Department. The witness stated that the grievor was hired to head up special operations. He came to the Department from the RCMP and he hired Mr. Leigh and a Mr. Walsh, both from the RCMP. Mr. Leigh was hired as an intelligence officer and Mr. Walsh as a technical officer. Reference was made to Exhibit E-2 which is the grievor’s job description and/or responsibilities. This was prepared by the witness. He stated that the grievor saw Exhibit E-2 in a draft form in January 1993 but he never saw the final document. He stated that the grievor was responsible for a bigger role in his duties. Reference was made to Exhibit E-2(a).
The witness stated that at the time when he was notified by Mr. Leigh of Mr. Scott’s arrest at the Ottawa airport, he and the grievor had had their difficulties; it was not a good relationship.
The witness was asked if he thought the passing of counterfeit money by the grievor was willfully done or if it was by accident. He replied: “No, I put him on special leave with pay”. The witness testified that his statement to senior management was that, until the grievor was found guilty, he was innocent.
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Decision Page 16 Under cross-examination, the witness stated that the grievor was supposed to be on a training course in downtown Ottawa at the time that he was apprehended by the Gloucester Police although the grievor knew that he was going to the airport. Apparently he was going to take his mother there. The witness stated that the grievor never advised him that he was going to go to the airport.
The grievor’s representative tabled Exhibit G-1 which are notes written by the witness, Mr. Moore, giving information on the detention of the grievor. The witness stated that he told Mr. Leigh to advise the grievor not to come to work the following Tuesday and also not to go into the office over the weekend.
The witness was asked if he had had an opportunity to speak to the grievor about how he came to be in possession of counterfeit dollars. He replied that he did on the Tuesday after the April 2nd incident when the grievor came to the office to turn in his identification, badge, etc. The witness stated that the grievor claimed he was innocent and did not know at the time that it was counterfeit money. The witness was asked if he ever indicated to the grievor that, if the charges were dropped or if he was acquitted, he would be allowed to return to work. The witness responded that the grounds for the grievor’s suspension would not exist if all charges were dropped. He also stated that past incidents by the grievor were taken into consideration at that time. The witness stated that he was involved in all the matters relating to the grievor and that any evaluation done on the grievor until 1993 was done by him.
The witness stated that there was no publicity surrounding the grievor’s arrest. He also stated that the decision was made to discharge the grievor prior to the conclusion of the Court proceedings and that was before the grievor changed his plea from not guilty to guilty.
The witness testified that there was a long-standing problem between himself and the grievor concerning Mr. Moore’s access to informant files. A lot of the information that the grievor received arose out of his contacts within the RCMP. Apparently the grievor told the witness that access to that information was only on a need-to-know basis. The witness replied that he agreed but as his superior he wanted to know about the information.
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Decision Page 17 The witness was questioned about an earlier incident concerning the grievor’s filing cabinet being forced open, under Mr. Moore’s direction, where ammunition and a holster were found and he thought the grievor was a risk or threat to certain people, including himself. There was no investigation by police although a complaint was filed.
The witness stated that it never occurred to him that the files that had been taken out of the office over the weekend of April 2, 1994 by the grievor had been taken out for security reasons. He stated that there was no disciplinary action taken at the time that the files were taken out by the grievor. An audit had been done but there was no action taken in relation to the missing files at that time.
The witness stated that the grievor did not deny making calls using his Government calling card and that a portion of the calls he made were legitimate calls. The witness stated that they did not want to take disciplinary action against the grievor about the calls at that time in case a decision was taken to terminate his employment arising out of the circumstances which had led to the grievor’s suspension. The cost of the calls was recovered by the Department.
The witness, Mr. Moore, stated that he received information from Mr. Thériault in July 1994 that the grievor was working on an investigation with two other agencies. He stated that, if the grievor had become aware of certain crimes on the East coast, he should have passed on the information to the proper authorities, the RCMP for example. He also stated that the grievor had compiled a file and information to send to U.S. agencies. No disciplinary action was taken at that time.
He stated that he had no personal agenda against the grievor although he does not wish to work with him again. He stated that the grievor refused to work under authority. They did not have a normal working relationship. He stated that the only disciplinary action taken was a written reprimand on the grievor’s file. He stated that the Department’s reputation was not necessarily harmed because of the grievor’s arrest but the problem was if information got out that the grievor had pleaded guilty. There was no publicity because steps were taken to control any publicity that would have come out at the time of the grievor’s arrest. He stated that, if the grievor came back to work, it would be difficult because of all these incidents.
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Decision Page 18 The employer’s second witness, Beverley Jane Roszell, the Director General, National Parks Directorate from June 1992 until June 1993, knows the grievor and became aware of the East coast counterfeit investigation from Mr. Moore in June or July 1994. The witness stated that the grievor never spoke to her about this and he did not seek the Department’s approval. His degree of involvement was not part of his responsibilities as far as Parks Canada was concerned.
Under cross-examination, Ms. Roszell stated that she told Mr. Moore to pursue any additional information about the East coast investigation. She stated that she spoke with the grievor from time to time. She testified that it was not appropriate if the grievor was involved in activities outside of Parks Canada and obtained information of possible criminal activity from his informants, to pass that information on to the RCMP without first consulting his supervisor. The witness stated that she told the grievor that Mr. Moore was his supervisor and he had to judge if the information was important or not.
The third witness for the employer was Sergeant Michel Dessureault. Counsel for the employer tabled Exhibit E-17, draft notes of a meeting between the witness, Mr. Thériault and the grievor on April 4, 1994.
The witness stated that he was a Sergeant Member of the RCMP for 24 years and in the Criminal Intelligence Unit, A Division, Ottawa, for the past two and one-half years. He has known the grievor since 1978. He was aware of the grievor’s job in law enforcement with Parks Canada. His contact with the grievor began in April 1994 when he received a call from the grievor after his arrest. He met with the grievor at his residence and discussed the arrest. The grievor indicated that he knew about a counterfeit source, a source that knew about criminal groups operating on the East coast (reference page 3 of Exhibit E-17). Apparently, this source told the grievor that he had to purchase $3,000 from a gang (reference page 4 of Exhibit E-17). The grievor said the Montreal division of the RCMP did not want to get involved with the source. He told the RCMP about his dealings with the U.S. Secret Service. The grievor stated that after introductions from his source he offered to make an initial purchase of counterfeit money. The grievor stated that the U.S. Secret Service offered $1,000 to the informant but the informant said the amount was ridiculous. The witness stated that
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Decision Page 19 the grievor gave the RCMP the original letter he said he had sent to the U.S. Secret Service but apparently it was never sent.
The witness stated that he asked the grievor why he had waited five days before calling him and why he used a false name upon his arrest. The grievor replied that he panicked and did not know why he did that. The witness stated that the grievor also offered, at that meeting, to act as an informant, to make an initial purchase of counterfeit money. He stated this plan was offered to senior RCMP officials and was turned down. Counterfeit money is under the RCMP’s jurisdiction and has to go through a chain of command in order to deal with U.S. authorities. The witness stated that, if the grievor was aware of counterfeit dealings, his duty was to advise the RCMP. The witness stated that he did not believe that the grievor had any authority to contact the U.S. Secret Service.
The witness testified that he does not believe the grievor’s story; he does not believe that he was telling the truth and he would have a problem working with the grievor in his position at Parks Canada.
The employer’s fourth witness, Mr. Michael Porter, has been with Parks Canada for 25 years and the acting Director General, National Parks Directorate, since June 1993, except for February and November 1994 when Jane Roszell was there.
Reference was made to Exhibit E-14. The witness stated that he assisted with the drafting and delivery to the grievor of this letter. The witness summarized, during his testimony, the second paragraph of Exhibit E-14. He testified that there was a lack of judgment on the grievor’s part in the use of his Government calling card for his own personal use. The witness stated that in his view it was a violation of trust for the grievor to use this card for personal use. The grievor knew that he should not do this.
The witness stated that the grievor’s involvement with the counterfeit investigation was unauthorized and he should not have been involved. The witness referred to the MOU between the Department and the RCMP (Exhibit E-3). That was the framework that the grievor should use in law enforcement. The witness stated that the grievor had to deal with a small community of law enforcement agencies and until the
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Decision Page 20 matter of the criminal charges was resolved he could not work in the law enforcement community.
Counsel for the employer tabled Exhibits E-18 and E-18(a), the trial proceedings. An objection was raised by the grievor’s representative to their admissibility and I took note of this at the time.
The witness stated that because of the outcome and the impact of the charges and other things done by the grievor, it would create a number of complications if he continued in his position: his lack of a security clearance; his training of people in law enforcement; his pleading guilty to a serious offense. The witness stated that the grievor showed no remorse. He also stated that a security clearance at the secret level is required to deal with other agencies and that he could not recommend clearance. Also, the RCMP would possibly not grant a clearance. Therefore, the grievor cannot continue to perform his duties. The witness testified that Mr. Moore, with the help of law enforcement officials in various regions, was now performing the grievor’s duties.
In response to a question regarding whether this witness could work with the grievor again in the Branch, the witness replied that the grievor could not perform his duties without his security clearance. It is a small operation and persons were concerned about the grievor coming back since he had pleaded guilty to the counterfeit charge. Also, because of downsizing in the Department, if the grievor came back others would have to leave and this would create discontent in the Department.
Under cross-examination, the witness stated that he was present when the grievor received his letter of discharge (Exhibit E-14). The witness indicated that there were two other persons present and they met in the boardroom with the grievor. On advice from the security personnel of the Department, police were on standby in the next room. A psychologist was also standing by to advise the grievor that she was available for him. The witness stated that this was not the first time that he was involved in handing over a letter of discharge but never before had he had police or a psychologist present. The witness stated that there was a perception that the grievor could have become violent because of the stress he was then enduring. He stated that the security personnel were under the impression that there might be a problem although there was no explanation provided as to why they arrived at this conclusion.
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Decision Page 21 He stated that the grievor worked for Mr. Moore and he only knew the grievor on a casual basis. He was aware of the problems between the grievor and Mr. Moore. The witness stated that Mr. Moore had never mentioned a reluctance to work with the grievor until the charges were laid. The witness stated that he was aware of a Ms. Ruddick’s and Mr. Moore’s fear about an alleged death threat by the grievor since they had filed a complaint with the police.
The witness confirmed that following the grievor’s arrest and the laying of the criminal charges he did not see any publicity about the matter. He was asked if he had received any calls or letters from the RCMP or law enforcement agencies indicating their reluctance to work with the grievor. He replied no, that he was not there at that time and had no dealings with the people working with the grievor.
The witness stated that he was a peace officer in Newfoundland in 1977 and 1978. He was transferred to New Brunswick in 1978 and underwent training with the RCMP. He stated that during his time there there was no informant program as such but they did receive tips from sources. However, they had no money to pay them.
The witness stated that he was aware of the grievor’s and Mr. Leigh’s reluctance to deal with Mr. Moore in relation to information on their files.
The witness stated that, given the present circumstances, he could not recommend security clearance for the grievor and he did not think the RCMP would issue a security clearance to the grievor.
The witness stated that he was aware that the grievor did not deny using his Government telephone calling card when confronted with this and that he offered to pay the costs of the calls.
In reference to the letter of termination (Exhibit E-14), the witness stated that he was familiar with parts of it but it was not written by him. He stated also that he did not receive any evidence that the conduct of the grievor at the time of his arrest would harm the reputation of the Department. There was no publicity but the problem was that their reputation with other departments and agencies that they worked with would not be good. He stated that the existence of the charges rendered the grievor incapable of performing his duties. He stated that the grievor carried a badge as a peace officer
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Decision Page 22 and that the bond of trust was no longer there. The witness stated that he considered the charges a serious breach of the Criminal Code.
The grievor’s representative showed the witness and tabled Exhibit G-2, a memorandum to Mr. Tom Lee, Assistant Deputy Minister, Parks Canada, from Mr. Guy Gravelle, Staff Relations Advisor, The subject is “Claude Scott - Termination for Cause” and is a chronology of events and it was requested by the Assistant Deputy Minister.
On redirect, the witness was asked if he had any knowledge as to whether Exhibit G-2 had been prepared prior or subsequent to the termination. Reference was made to page 2 which indicates a change in the grievor’s plea. The witness answered that he honestly did not remember the date that it was prepared; it might have been prepared after.
With the consent of both parties, Exhibits G-2(a) and E-19 were tabled, the notes prepared by the staff relations advisor, Mr. Gravelle.
Mr. Walter Leigh testified on behalf of the grievor. Prior to joining Canadian Heritage, Parks Canada (as it is called today), as a national intelligence officer in October 1988, Mr. Leigh was an RCMP officer for 27 years. He joined Parks Canada right after he left the RCMP where he had been a staff sergeant.
The witness joined the RCMP in 1961. He spent the first six years in the detachment, then in the GIS section, major crimes for three years in Newfoundland, in 1974, national crime intelligence in Winnipeg, commercial crimes section in Winnipeg, in 1977, NCO in charge, commercial crime, Halifax, for 10 years, and in 1987, in Ottawa, economic crime directorate, national crime intelligence, gathering intelligence on organized crime. The witness stated that he had dealt with informants in his previous work as an RCMP officer and also in his present position with Parks Canada. The witness stated that at the RCMP the investigator and headquarters had access to confidential sources and/or informants. The witness stated that Parks Canada, at the time he joined, had no set program, no program similar to what they had in the RCMP. The witness stated that he gathered information on names of informants to be used by Parks Canada and that he knew that the grievor, Mr. Scott, had files on informants from the RCMP, from the regions and Parks Canada. The witness stated that no one
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Decision Page 23 else had information on informants that were used by the grievor in his work. Access to the identity of the informants is on a need-to-know basis and is not passed on to anyone else.
The witness stated that he was unaware whether Mr. Moore had any peace officer status in Parks Canada. Also, he had no knowledge of any police training that Mr. Moore could have had.
The files were in the grievor’s office and were not made available to Mr. Moore. The witness stated that he and the grievor were hired approximately at the same time. The witness stated that Mr. Moore controlled money to pay informants at the Branch level only; no payments were given to informants by Mr. Moore.
The witness stated that he was aware of the grievor’s arrest on March 31, 1994 and that the grievor had been placed on suspension with pay by the employer. He stated that he had knowledge of the documents taken by the grievor within a week after his arrest. He did an audit himself.
The grievor’s representative tabled Exhibit G-3, a memorandum addressed to Mr. Moore from the witness. This was requested by Mr. Moore.
The witness stated that after the grievor was suspended he did not receive any directions not to deal with the grievor, but that the grievor gave him files on his informants. After the grievor’s suspension, the witness continued to work at Parks Canada and took over the grievor’s job in an acting role only. Later on, this position was declared surplus. The witness stated that the removal of files on that weekend in April by the grievor did not hamper or impede the section from operating. He also indicated that copies of the documents were with Parks Canada.
The witness stated that he was aware of the Government telephone calling card and that, if an employee used it to make personal calls, the employee paid for the calls.
The witness stated that he had been advised by the grievor that he had received confidential information sometime around mid-1993, a few months before his arrest, on counterfeit currency. The witness stated that the grievor told him that he had sensitive information on counterfeit money and asked him whom he could contact. The witness called the Deputy Commissioner of the RCMP, Mr. Jensen, who referred Public Service Staff Relations Board
Decision Page 24 him to someone else. The witness gave this name to the grievor for him to contact. The witness stated that he did not know how the grievor came upon this information; he was not told by the grievor how he had obtained the information. The witness stated that the grievor had no obligation to report this to his supervisor, Mr. Moore, but rather to police forces, such as the RCMP, and other agencies. The witness stated that the passing on of information by the grievor to the RCMP was not part of an official investigation.
The witness stated that he was aware of the grievor’s arrest in March 1994 and also of the results, namely, that the grievor entered a guilty plea. He stated that he would not have a problem working with the grievor if the grievor was reinstated. He was asked whether he was aware of anyone else working in federal departments, Parks Canada and/or the RCMP, and other agencies, after incidents similar to this had happened and whether they continued to work. The witness replied: “Yes”. The witness stated that the working relationship between the grievor and Mr. Moore was kind of rocky; it was not a good relationship. The witness stated that the grievor performed his job; his work was meticulous; he left no stone unturned; he knew what he was doing, etc. The witness was shown Exhibit E-15 indicating a conditional discharge against the grievor and he stated that this is not deemed to be a conviction.
Under cross-examination by counsel for the employer, the witness was referred to Exhibit E-5. This is a document that the witness and the grievor worked on and it was then forwarded to the chief warden at Parks Canada. The witness stated that pursuant to these guidelines the Department maintained a registry of informants in Ottawa and informants were paid on a sole source basis. Informants were paid for days worked on behalf of the Department instead of being paid for information given. The grievor had authority, according to the witness, to make these payments. The witness stated that Messrs. Moore and Porter had the authorization to okay the payments made by him and the grievor to their informants.
Counsel for the employer made reference to the fact that the grievor had brought files with him when he left the RCMP to come to Parks Canada. The witness stated: “Yes, the files were generated from Parks Canada information at the time he was with the RCMP but were Parks Canada property”. Access to files on informants was on a need-to-know basis.
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Decision Page 25 Reference was made by counsel for the employer to the grievor’s arrest. The witness stated that he went to see the grievor at the police station. The witness then informed Mr. Moore of the grievor’s arrest and the circumstances involving his arrest. The witness, accompanied by another RCMP officer and a lawyer, picked up the grievor at the police station. The witness stated that he was told that the grievor was not to go back to his office.
Reference was made to Exhibit G-3. The witness stated that the grievor told him that he was ordered to return the files to the Department. The witness asked the RCMP to take the files. The witness was told to take the files back himself. Mr. Moore said that the witness should return the files to him. The witness stated that when the grievor took the files that weekend in April after his arrest, when he went back to the office, he did not inform anyone at the regional level.
The witness stated that he was aware that the grievor had used his Government telephone calling card for personal use but that employees paid for their personal calls. That is, in the RCMP if they used the Government card for personal use they repaid the employer for the cost of the calls.
Reference was made to the MOU between Parks Canada and the RCMP (Exhibit E-3). The witness stated that on Criminal Code offenses the RCMP enforced these offenses. He also stated that the passing of information was to the RCMP which was the force with the jurisdiction to receive this information. The witness stated that authority was not necessarily needed from Parks Canada to deal with other agencies, outside agencies, such as U.S. authorities if dealing with U.S. fish and wildlife. The normal way was to pass on the information to the RCMP on criminal investigations. The witness stated that in the RCMP, approval was needed from superiors to work on criminal investigations.
The witness stated that he and the grievor drafted the guidelines on how to deal with informants, were involved in the training of staff, the MOU with the RCMP, and also joint force operations. He stated that there was an amount of trust needed to work with other agencies. The conditional discharge was not entered as a conviction.
Reference was made to the RCMP computerized Canadian Police Information Centre, otherwise known as C.P.I.C. It was set up by the RCMP and is now being used
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Decision Page 26 by other forces. It holds criminal records of individuals. The witness stated that the grievor’s name was on the database as a conditional discharge. This is kept for a certain length of time. At C.P.I.C., a conditional discharge would be taken off after one and one-half years.
Upon redirect by the grievor’s representative, the witness stated that the regional offices had copies of files that contained information on informants generated for Parks Canada. He also stated that the files of informants cultivated by the grievor when he was with the RCMP were his. The witness also stated that he was aware that Mr. Moore had tried to gain access to the grievor’s files at some time and the files were opened with security personnel present.
The witness stated that, regarding any information that the grievor had obtained on counterfeiting, if the RCMP did not act upon it then the passing of the information to U.S. officials would be normal. To the question of whether the grievor in passing on information or offering to assist in an operation would need the authority of someone else, the witness answered: “Yes, either the Assistant Deputy Minister or the Commissioner”.
The grievor, Mr. Claude Scott, testified that he had been employed by Parks Canada and was Manager of Law Enforcement from August 1, 1988 until January 6, 1995.
Reference was made to Exhibits E-2 and E-2(a). The grievor testified that he never saw Exhibit E-2 but he saw and signed off Exhibit E-2(a). The grievor stated that he enhanced the six-point program, set up a confidential human source program (informant program), and was assisted by Mr. Leigh.
Reference was made to Exhibit E-1. The grievor stated that he reported to the Director of the Natural Resources Branch until 1991 and then he reported to Mr. Moore. He stated that prior to joining Parks Canada in 1988, he had been with the RCMP from January 12, 1967 until his retirement in August 1988. The grievor stated that he was posted in Montreal after his training; he assisted federal departments; he was a fingerprints specialist; he spent eight years in uniform and was then recruited for Interpol for four years; he was then in charge of criminal intelligence for three and one-half years in New Brunswick. He was in charge of the drug unit in Moncton for
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Decision Page 27 three years; he was in charge of national security in New Brunswick; he was an investigator for two and one-half years; he then worked in anti-drug profiteering, section command. The witness stated that he had dealt with human resources and informants while with the RCMP. The witness stated that he developed a six-point program for Parks Canada on dealing with informants and human resources. This program was accepted in principle by the Department. The grievor stated that he set up a confidential source file program. The originators of the files were 90 percent of the time Parks Canada wardens. The grievor would approve and provide a file number. A copy was sent to Halifax and then kept in Ottawa. Confidential human source files were kept in the grievor’s office, a secured office. Those who had access were the grievor and Mr. Leigh on a need-to-know basis at headquarters. The grievor testified that Mr. Moore did not have access to these files. A commitment was given to informants that their identity would be kept secret unless they were required to testify in court. The grievor also stated that he had information from previous RCMP contacts.
The grievor stated that he was arrested on March 31, 1994 at the Ottawa airport. Mr. Moore, through Mr. Leigh, gave instructions that the grievor was not to enter the office that weekend, which was a long weekend (Easter weekend). The grievor stated that the next day, a Saturday, he went in the morning to his office to retrieve his personal effects and shred personal notes and informant files from the regions and his own RCMP files before any action was taken against him. The grievor stated that he told Mr. Moore that he had shredded certain files but this was not true. The grievor stated that he had taken the files with him. The grievor stated that he did not trust Mr. Moore, “that he talked too much”, that Parks Canada could not protect information given to them by other agencies. He stated that Mr. Moore was not a peace officer and did not have a need-to-know the content of the informant files and that he himself, the grievor, was the ultimate authority for the program. The grievor stated that the previous director had forbidden him to deal with anyone else but his associate Mr. Leigh. The grievor’s representative referred to Exhibit E-9, a memorandum dated August 16, 1993 from Mr. Moore to the grievor, and in particular to the following: 1) I have and will retain keys for access to all offices under my direct supervision. There will be no filing cabinets or operational files under lock for which I do not have a key or combination.
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Decision Page 28 The grievor stated that Mr. Moore had no law enforcement training. The grievor stated that Mr. Moore did not have a need-to-know the information in the files; only the people in the field could use that information.
The grievor stated that he used his Government telephone calling card after being suspended. He stated that he used the card for personal use but he offered to reimburse the Department. The personal use of the card related to his search for a job. The grievor confirmed that Mr. Moore had directed him to call him every morning while he was suspended. The grievor stated that he did pay the bill for his Government calling card charges, which came out to the amount of $1,454.92.
The grievor stated that he knew Sergeant Dessureault of the RCMP. They were personal friends while in the RCMP in New Brunswick. They met in 1978 in Fredericton. The grievor stated that he called Sergeant Dessureault upon his arrest in Ottawa on March 31, 1994. Sergeants Dessureault and Thériault met with him and he spoke to them about the counterfeit operation.
The grievor stated that the RCMP had refused to deal with the information he had obtained about the counterfeit operation in Halifax. He also stated that he spoke with other RCMP officers and that this was done after his arrest on the counterfeit charges at Ottawa airport. He stated also that, if the RCMP were going to use him in investigating the counterfeit operation, he knew that they would quash the charges that he had allegedly been arrested for.
The grievor stated that on Sunday, February 13, 1994, he received information from an informant. (This was an informant on organized crime for the RCMP for 17 years. He stated that the RCMP relocated the informant.) The grievor stated that the informant called him with information on the counterfeit deal. He told Mr. Leigh about this the next day and Mr. Leigh then gave the grievor the name of the person to contact in the RCMP. The grievor stated he contacted the Bedford Police Department in Nova Scotia but they told him they had no money to deal with informants. He also stated that the U.S. border patrol told him whom to contact in the United States. The grievor stated that part of his job with Parks Canada was to cooperate with other agencies. He stated that the information provided to him on the counterfeit deal was exact and that the RCMP refused to act on it. The grievor then stated that he gave this
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Decision Page 29 information to the United States Secret Service. He wanted to have the okay from his Department, Parks Canada, to work on this deal. He stated that he called three separate offices of the RCMP to deal with this issue but they said it was out of their jurisdiction. It was a U.S. counterfeit money deal; therefore he contacted the U.S. officials.
The grievor’s representative asked the grievor whether Mr. Moore’s statement that the grievor could no longer be trusted was true. The grievor stated that he had an excellent relationship with field officers and Parks Canada wardens and that no one told him they could not work with him.
Upon questioning from his representative concerning the removal of files and whether that violated a bond of trust, the grievor stated that these were working copies and the information came from the RCMP; it was confidential information. The grievor stated that he took these files temporarily to protect informants. He wanted to give these documents to Mr. Leigh but he was told not to give these documents to him.
The grievor stated that there had been no publicity surrounding his arrest at Ottawa airport on March 31, 1994.
Upon questioning from his representative, the grievor stated that the statement made by Mr. Moore about death threats to himself and a Ms. Ruddick was a lie. The grievor did state that he felt no remorse about the charges laid when he was arrested. He had an obligation to remove the files from his office to protect his informants.
The grievor ended by stating that he has no revenue; his wife has left him and he has lost his house and his truck. All he has is a small pension from the RCMP.
Under cross-examination by counsel for the employer, the grievor stated that his responsibilities increased when Mr. Moore arrived at the Department, that complete law enforcement fell under his responsibility. Reference was made to Exhibits E-2 and E-2(a) showing responsibility for policy and informant programs.
The grievor stated that he was involved in field investigations but that he was more active in the field in the first few years on the job. Before his discharge, he was also involved in teaching law enforcement.
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Decision Page 30 Under cross-examination, the grievor stated that he considered himself to be the person with the most hands on operations experience in the field. He stated that he performed his duties independently, had set goals, and knew what he had to do. However, this lasted only a few months after Mr. Moore came on to the job; it was not the same after a while. The grievor stated that Mr. Moore was a “controller” and that he felt offended that Mr. Moore checked on him “like a school boy”.
Under cross-examination, the grievor stated that Mr. Leigh picked him up at the police station after his arrest. The next morning he went to his office to retrieve his personal belongings and his informant files. He stated that he got in touch with Mr. Leigh and that he told him to call Mr. Moore. Mr. Moore told the grievor not to go back to his office until further notice. Mr. Leigh had told the grievor the same thing that previous afternoon.
Under cross-examination, the grievor stated that he and Mr. Leigh had put together the guidelines for law enforcement intelligence. Reference was made to Exhibit E-5 which was drafted by the grievor. This became interim policy until the fall of 1993. The guidelines were followed but never approved by the Deputy Minister at the time (signed off). The Department knew about and approved the six-point program.
Under cross-examination, the grievor stated that the informant files were kept at the main office in Ottawa; he did not dispute that the documents were the property of the Department. He stated that he removed files in April 1994 but that he had told Mr. Moore that he had actually removed them in September 1993. The grievor stated that he had also told Mr. Moore that he had destroyed the files but in fact he had locked them up.
Reference was made to Exhibit E-7. Reference is made in that document to the grievor having told Messrs. Moore and Ormsbee that he had destroyed the files when in fact he had only removed them. e. Claude stated that in about September 1993, he realized he could not keep control of the information due to circumstances at work, and therefore decided to destroy them to protect the informants identity and maintain their safety. He added that he thought he destroyed about 4 or 5 informant files, and 2 or 3 agent files. Each file had about
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Decision Page 31 two pages in it. (This is contrary to the last report which indicated the files were destroyed during the Easter week-end.) Claude added that he never felt the files were official departmental information and further, felt a personal responsibility to destroy the information rather than have it fall into the wrong hands, or be improperly controlled.
The grievor stated that he had made the decision to remove the files temporarily and lock them up.
Reference was made by counsel for the employer to Exhibit E-9, paragraph 3, number (1). The grievor grieved this issue and his grievance was denied. The grievor stated that one of the reasons why he said the files were destroyed was so “they” did not have to worry about someone else seeing them; “they” being Mr. Moore and people in authority at the Department. The grievor stated that he only admitted in February 1995 to having the files and not having destroyed them.
Reference was made by counsel for the employer to Exhibit E-16 which is a list of files. The grievor stated that the majority of these files were generated in the Department. Of the total files, two came from his previous job with the RCMP. The grievor stated that in July 1994, Mr. Moore indicated that he did not agree with the informant program and did not agree with the grievor removing the files at that time. The grievor stated that he knew the matter was serious.
Reference was made by counsel for the employer to Exhibit E-4. The grievor stated that he knew he was not to perform any law enforcement duties. It states: ...you are not to be involved in any activities related to the functioning of the Department of Canadian Heritage with particular reference to Law Enforcement...
Under cross-examination, the grievor stated and agreed that the calls on the Government telephone calling card were not related to his duties at the time. He stated that he knew he was not authorized to use this card. He still had his card from April 19 through October 1994 while he was suspended. The grievor stated that he thought there was no problem in using the calling card and that he reimbursed the Department the amount of $1,454.92. Reference was made to Exhibit E-10 and to Exhibit E-11, paragraph 5. The grievor stated that Mr. Moore spoke to him in July 1994 about this issue.
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Decision Page 32 The grievor stated that he passed information to the U.S. Secret Service about the counterfeit deal after the RCMP said they could not help him. He also stated under cross-examination that the Bedford police told him they did not have the money to continue the investigation and dropped the issue. He stated that he told the Secret Service that, if they sent a memorandum to his Deputy Minister or Assistant Deputy Minister, he could help. However, nothing was done.
Reference was made to Exhibit E-18, pages 26 and 29, which is the Court transcript of the grievor’s arrest on the charges of possessing and uttering counterfeit money.
Reference was also made to Exhibit E-17, page 3, the interview between Sergeants Thériault and Dessureault and the grievor. Under cross-examination, the grievor stated that he did not tell anyone in the Department what he was doing with respect to the counterfeit issue. In reference to Exhibit E-17, page 3, it states that the Secret Service offered $1,000 to do this deal but that the informant or the source said no.
Counsel for the employer stated that there seemed to be a contradictory statement given by the grievor about who called whom. The grievor stated that a Detective Callahan from the New Bedford Police Department called him. If you look at page 5 of Exhibit E-17, the notes taken at the meeting by Sergeants Dessureault and Thériault, the grievor said something else.
On rebuttal, the employer’s witness, Mr. Moore, stated that he met with the grievor in April or May 1994 and that at that time he did not tell the grievor that he could continue using his calling card. He also stated that the grievor was up front about using his card for personal use and paid for the personal calls. Reference was made to Exhibit E-13. The witness stated that he asked the grievor if he made the calls and the rationale for these calls. Mr. Moore said that the grievor could not, on the spur of the moment, say to whom he had made calls. The witness stated that the employer provided Exhibit E-13 to the grievor so he could identify the calls but that he never got back to Mr. Moore.
Mr. Moore also stated that he was involved in opening the grievor’s filing cabinet before this incident. The Department’s security personnel removed the lock, verified
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Decision Page 33 what was in the cabinet and removed ammunition and a holster and then put the lock back on the cabinet.
Under cross-examination, Mr. Moore stated that there were no explicit instructions on the use of the Government calling card and that he, Mr. Moore, had no reason to believe that the grievor had reason to use the card. Mr. Moore stated that the grievor had never used the card for personal calls prior to this incident. There was no clean cut policy in the Department about personal use of the Government calling card. If employees used the card for personal matters, they advised the Department and reimbursed it. The witness stated that the grievor should not have been making calls while he was suspended. There was ample opportunity for the grievor to advise Mr. Moore that he was using the card. They spoke often, practically every other day.
The witness stated that on a need-to-know basis he had access to confidential files but not without informing either the grievor or Mr. Leigh first.
Arguments for the Employer Counsel for the employer stated that Exhibit E-14 establishes misconduct on the part of the grievor, Mr. Scott. Termination was appropriate for the following reasons: (1) unauthorized dealing with informant files; (2) unauthorized involvement in the counterfeit money operation; (3) unauthorized use of the Government telephone calling card; (4) breach of trust; and (5) charged and found guilty of uttering counterfeit money.
Counsel for the employer stated that the grievor was advised of his suspension and told not to return until given further notice. There were security concerns regarding the grievor’s unauthorized entry into his office. Mr. Moore requested an audit of files and files were found to be missing. The grievor stated that he had removed the files in September 1993 and had destroyed them. The grievor, because of the removal of files without authorization, should be disciplined. The grievor did not inform his superiors and did not inform regional staff of the removal of these files at that time. He confirmed that he entered his office without proper authorization or approval from his superiors. His justification for the removal of these files is unacceptable. These files were compiled solely for law enforcement and official and non-official programs were a red herring and irrelevant in this case.
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Decision Page 34 Counsel for the employer stated that the documents are the property of the Department and are to be used for law enforcement. The program was authorized by the Minister of Environment with the Department’s approval. Counsel stated that the grievor developed these guidelines, kept the files on the contacts, distributed money to informants, and the guidelines were followed for several years. The grievor was advised, by Exhibit E-9, that his supervisor had access on a need-to-know basis to the files the grievor held. The grievor may not have agreed with this but he was required to follow these instructions. The grievor’s rationale for removing the files is irrelevant since Mr. Moore knew that they were confidential and did not try to gain improper access to the files.
Counsel for the employer argued that the grievor also provided false statements to Messrs. Moore and Ormsbee and that his conduct was irresponsible between April 1994 and 1995. The grievor was not forthright and was not remorseful. There was a breach of trust. It was only in 1995 that the grievor confirmed that the files still existed.
Reference was made to Exhibit E-4 where the grievor was told not to be involved in law enforcement duties.
Concerning the unauthorized use of the Government telephone calling card, the grievor, when faced with this in 1994, did not see the gravity of his actions and still tried to maintain that the calls were legitimate. His willingness to reimburse the employer for the personal calls billed to his Government calling card was not enough. His card was used for seven months and the grievor never inquired if this was permissible. He did not voluntarily disclose his use of the card.
With respect to the counterfeit money matter, counsel for the employer argued that the grievor’s involvement in this is a red herring. The involvement was a matter outside of his jurisdiction and without an RCMP request; the grievor did not inform management. Reference was made to Mr. Moore’s testimony concerning his speaking to the grievor in July 1994 (Exhibit E-17). Also, without permission from the RCMP the grievor contacted the U.S. authorities. The employer’s position on the issue of trust is that the grievor’s actions in these matters gave rise to a loss of trust between the employer and the grievor. Reference was made to Exhibit E-2 which outlined the
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Decision Page 35 grievor’s responsibilities concerning his job as Manager, Law Enforcement. The grievor was also a peace officer. An element of trust between the Department and other agencies is an important factor. The grievor’s unauthorized activities show a disrespect for authority.
Counsel for the employer concluded by saying that the trust in this relationship has been broken. The employer is concerned about the incapability of the grievor to continue in his present job. The employer cannot condone the grievor’s actions. It was relevant in the grievor’s conduct in explaining the destruction of the files in his meeting with Mr. Moore. The grievor had information in July 1994 but did not disclose it at that meeting.
Counsel for the employer argued that with all this information and all the evidence put in front of me I should find that the employer’s decision to take disciplinary action was appropriate.
Counsel for the employer referred to and cited the following decisions: Skibicki (Board file 166-2-20723); Sheedy (Board file 166-2-13834); Re MacMillan Bloedel (Harmac Division) and Pulp, Paper & Woodworkers of Canada, Local 8 (1989), 9 L.A.C. (4th) 410; Vienneau (Board file 166-2-20865); Quigley (Board file 166-2-18034); McKendry [1973] F.C. 126; Lau (Board file 166-2-15388); Air Canada and International Association of Machinists, Lodge 148 (1973), 5 L.A.C. (2d) 7; Flewwelling (Board file 166-2-14236); Moore (Board file 166-2-23658); and the Criminal Records Act, sections 6.1(1)(b) and (2).
Arguments for the Grievor The grievor’s representative stated that the destruction of confidential files did not happen; they were not destroyed; they were returned. The confidential file program in effect at the time was not officially approved. This program was set up by the grievor and Mr. Leigh. They had been hired because of their expertise as ex-RCMP officers. They are professionals in this area. Both the grievor and Mr. Leigh took every precaution to protect their sources of information. Access was only on a need-to-know basis and the only two persons who had a need-to-know were the grievor and Mr. Leigh.
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Decision Page 36 The grievor’s representative referred to the testimony of the grievor that the files removed had also been copied to regional offices of Parks Canada and in some cases the grievor did not have the only copy. The cases where the grievor had the only copies were the ones that he brought with him from the RCMP or that he compiled himself. Because of their experience with the RCMP, both the grievor and Mr. Leigh were aware of the consequences if this information got into the wrong hands. Both were obligated to protect the identity of their sources.
The grievor’s representative stated that, when the grievor took the files after his arrest, this action was not initiated to harm or disrupt the operations of the Department. The grievor fulfilled his obligation to protect the identity of the sources of information. Back in 1993, the grievor’s cabinet was broken into on orders from Mr. Moore. It was a prime concern to the grievor to leave the files in the office while he was suspended. The grievor was acting on his instincts based on his training and past experience as a police officer. His duty was to protect the confidentiality of the files. Mr. Leigh testified that he understood why the grievor removed the files and testified that in his view only he and the grievor had access to these files. The grievor had reason for concern; he knew that Mr. Moore had forcibly gained access to his cabinet and he was concerned this might happen again. Mr. Moore had no background in police work and therefore it was unlikely that Mr. Moore had any idea of the consequences if these files were not handled properly. The grievor does not deny that he was not truthful when he said the files were destroyed. However, the grievor based his actions on the view that the files were his responsibility. He should not have had disciplinary action taken against him following his arrest.
On the unauthorized use of the Government telephone calling card, the grievor was not ordered to return this card while suspended. When he met with Mr. Moore, he gave him his keys and all other necessary identifications that he was requested to return but no mention was made of the calling card. Mr. Leigh testified that people use the card for personal use and pay the charges themselves. The grievor did not deny making the calls, did not attempt to avoid paying for the personal use and the full amount was recovered. If any disciplinary action is to be taken, a written reprimand would be sufficient. The grievor was a senior manager and did not expect to have to ask Mr. Moore’s permission to use the card. Managers are given discretion in some areas. Public Service Staff Relations Board
Decision Page 37 The grievor’s representative argued that with respect to the grievor’s involvement in the counterfeit money operation, the grievor’s position is that he was not involved in this investigation. The grievor stated that he received information from a source and tried to pass the information on to law enforcement agencies. The grievor felt he had a duty to pass on this information. The grievor’s representative stated that Mr. Leigh testified that there is a moral duty that any information on criminal matters be passed on, especially for an ex-RCMP officer. This did not constitute a formal investigation. The grievor did not feel obligated to pass on the information to Mr. Moore; he was not acting in his capacity as an employee of Parks Canada at that time. He stated that the grievor said that, if he had agreed to assist in some way, he would have advised the Department. The grievor was not actively involved in the investigation of counterfeit money.
Regarding the two criminal charges of March 31, 1994, possession of and uttering counterfeit money, the first charge was dropped and to the second one the grievor pleaded guilty and received a conditional discharge and 15 months probation.
Reference was made to section 736 of the Criminal Code, conditions on a conviction where there is a conditional or absolute discharge.
The grievor’s representative stated that the employer would be stretching the truth if it said that the grievor’s actions damaged its reputation. There was no evidence presented that there was publicity in this matter. The grievor’s representative stated that Mr. Moore received a call from Sergeant Thériault only because the grievor contacted him.
As a result of the charges, the grievor has not been rendered incapable of performing his duties. Except for Mr. Moore, no other employees testified that they would not be able to work with the grievor: Mr. Leigh testified that it would not be a problem; Mr. Porter testified that it would not be a problem. So, there does not seem to be any problem for the employer. The only person who has difficulty working with the grievor is Mr. Moore. The grievor’s conduct has not made it difficult for the employer to direct its workforce.
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Decision Page 38 The grievor pleaded guilty to one charge. The outcome at the time of the charges mattered and nothing else. The grievor had no disciplinary record prior to this. Reference was made to Exhibit E-10.
The grievor’s representative stated that what the employer did to the grievor was mischievous and unfair. He had no prior disciplinary record during his seven years at the Department. From March 1994 to January 1995, the employer tried to build a disciplinary record, to establish just cause for the disciplinary action, relying on his arrest, the criminal charges, and the personal use of the calling card. All this was done while the Department was building a case for the grievor’s discharge.
The grievor’s representative stated that this discipline should be corrective and not punitive. He stated that the employer’s goal was to terminate the employment of the grievor and get rid of him. Why? Unfortunately, the reason is the poor personal relationship between the grievor and Mr. Moore. Mr. Moore claimed that he was concerned about his personal safety but there was no evidence to support this claim. This was only a state of mind.
The grievor’s representative stated that Mr. Moore does not want the grievor back. He has a personal interest in this. Mr. Moore was one of the key persons who provided information to staff relations on how to deal with the grievor’s situation. The employer was waiting for something to happen in order to get rid of the grievor. His arrest was one reason the employer built a case for dismissal.
The grievor’s representative stated that the grievor had a good record: 22 years with the RCMP. Since his termination in January 1995, the grievor has been unemployed. He has suffered hardships, both personal and professional.
He asked that I review the evidence and decide whether the employer was justified in terminating the grievor’s employment. He stated that Mr. Scott should be reinstated; the employer has no cause to justify a discharge. If I find that there was cause to discipline the grievor, then I may modify the penalty. The grievor was discharged a year and a half ago and if reinstated it could be without compensation. The employer had no cause to terminate his employment; the burden of proof has not been met by the employer for the penalty of discharge.
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Decision Page 39 The grievor’s representative cited the following decisions: Rice (Board file 166-2-2916); Cotter (Board file 166-2-16113) and Dussault (Board file 166-2-6441).
Rebuttal by the Employer Counsel for the employer stated that both the grievor’s and Mr. Leigh’s roles are supposed to be managed by the Department and management has the right to determine who has a need-to-know. Mr. Leigh and the grievor have a need-to-know. It is management’s right to authorize who else; in this instance, Mr. Moore had a need-to-know. Mr. Moore was head of the Branch and the grievor’s direct supervisor. The evidence has established that Mr. Moore never looked at information in the files. The evidence given by the grievor (Exhibit E-16) is that most of the files originated within Parks Canada and related to departmental matters.
As far as the grievor’s cabinet being broken into, management had the legitimate authority to do so since the grievor still maintained the files in his office.
There is no evidence that employees were authorized to use the Government calling card for personal matters.
In respect to section 736 of the Criminal Code, the Court should be concerned with the relationship between the employer and its employee. Publicity and the criminal records maintained in C.P.I.C. are available to any law enforcement agent. The grievor deals with these agents.
The letter of termination shows the basis for the employer’s actions. The suspension after his arrest was not disciplinary but was just to wait for information on what the charges, if any, would be. The employer was not building a file to try and get rid of the grievor. The personal losses suffered by the grievor are the consequences of his own misconduct.
Reasons for Decision I have examined all the evidence as well as the decisions cited. The letter of discharge, dated January 6, 1995, addressed to the grievor, Mr. Claude Scott (Exhibit E-14), states the following, in the second paragraph:
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Decision Page 40 The position you hold necessitates a strong bond of trust between the employer and yourself and requires the respect of, and a high degree of co-operation with, other law enforcement agencies such as the RCM Police. Your destruction of confidential government files, your unauthorized use of the government intercity telephone network for personal long-distance calls while suspended from duty and your admitted unauthorized involvement in a counterfeiting investigation in eastern Canada earlier this year have destroyed that bond of trust. Further, regardless of the outcome, the fact that you have been charged by the Gloucester police with possession of and uttering counterfeit U.S. currency under the Criminal Code has impaired your reputation with the law enforcement community and your consequent ability to function effectively with your colleagues.
The Supreme Court of Canada in Cie Minière Québec Cartier v. Québec (Grievance Arbitrator) [1995] 2 S.C.R. 1095, stated the following at page 1101: As a general rule, an arbitrator reviewing a decision by the Company to dismiss an employee should uphold the dismissal where he is satisfied that the Company had just and sufficient cause for dismissing the employee at the time that it did so. On the other hand, the arbitrator should annul the dismissal where he finds that the Company did not have just and sufficient cause for dismissing the employee at the time that it did so.
Therefore, in determining whether the employer was justified in terminating Mr. Scott’s employment I must consider the circumstances as they existed at the time that he was discharged, that is, January 6, 1995. At that time, the criminal charges pending against the grievor had not been dealt with by the appropriate court. Accordingly, the employer cannot rely on the outcome of these charges to support its decision to discharge the grievor. Furthermore, as a general rule, the fact that an employee has criminal charges pending against him would not be grounds for discharging him from his employment, although in an appropriate case, it might be grounds for suspending him, either with or without pay, pending the resolution of the charges. Accordingly, in making my decision, I have not considered either the criminal charges against the grievor or their outcome.
After the grievor was arrested on March 31, 1994 at the Ottawa airport for having in his possession and uttering five counterfeit one hundred dollars bills in American currency, which was contrary to sections 450(b) and 452(a) of the
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Decision Page 41 Criminal Code, the grievor’s employer became aware of this fact. The grievor was advised by his employer not to go back to the office. Even though it was the long Easter weekend, the grievor decided to go back to his office to remove confidential files that listed sources and/or informants that he had been working with in his position as a law enforcement officer with Parks Canada. The grievor had stated to the employer that he had destroyed these files. While this was not the truth, it was only later that the grievor admitted that he had not destroyed the files but had kept them in some other secure place so others could not have access to them. These were departmental files and the grievor had no right to attempt to deprive his supervisor of access to them.
There is no dispute that within a certain period of time, while he was suspended, the grievor made long-distance calls over the Government telephone network for purposes which were not work-related and which were not authorized by the employer. Even though the grievor reimbursed the employer for the cost of these calls, there was no justification for his having used his Government calling card without the employer’s authorization. Furthermore, while the grievor was required to speak with his supervisor by telephone during each working day of his suspension, the grievor did not advise Mr. Moore that he was using the calling card for personal telephone calls until he was confronted with this fact by the employer many months after his suspension took effect.
Also, the grievor’s involvement in an investigation of counterfeit money in Halifax was not appropriate. This was not in the grievor’s job description. I understand that the grievor as a former member of the RCMP thought that he had a moral obligation to try and help. However, the grievor should have understood that he was no longer a member of the RCMP. The grievor’s position then should have been to advise his employer of the information that he had received from a so-called source and let his employer deal with the proper authorities at that time. It was not the grievor’s responsibility in his job at the time with Parks Canada to take this on personally and involve himself in this investigation, contacting the RCMP and then without any results from the RCMP contacting the U.S. Secret Service. I do not think this was related to the work that the grievor was doing in his position with Parks Canada. This should have been reported to his superiors at the time and he should have let them deal with it. Public Service Staff Relations Board
Decision Page 42 It is true that the investigatory stages subsequent to the grievor’s suspension from employment did not proceed with lightning speed. However, I am unable to conclude that the conduct of the investigation constituted dilatory behaviour or resulted in an inordinate or prejudicial delay. The grievor offered no evidence which would serve to demonstrate that he had been led to believe that his misconduct was not viewed as a serious matter by the employer or that the employer had condoned his actions. I am not satisfied that the grievor was in any way prejudiced in the presentation of his grievance in respect of the disciplinary action taken against him. In light of these circumstances, I am not prepared to find that there was an undue delay in the imposition of the discharge. Indeed, the employer would have been justified in awaiting the outcome of the criminal charges before deciding to impose an appropriate disciplinary penalty. I must conclude that there is simply no cogent evidence that points to the grievor being a victim of adverse discrimination by his employer.
In summary, I find that the grievor has committed a serious act of misconduct when for a period of time he used the Government long-distance telephone system for personal purposes. I also find that the grievor committed a serious act of misconduct by removing the confidential Government files that were for his use in his position as a law enforcement agent. I also find that the grievor, even if he thought he had a moral duty to involve himself in the investigation of counterfeit dollars, should have passed this information on to his superiors at the time and not attempted to involve himself personally in the matter. This was not his responsibility at that time.
Mr. Scott’s offenses are serious and I believe that the employer was justified in discharging him from employment for them. Even in the light of his good long-standing record as an RCMP officer and then as a law enforcement officer with Parks Canada, I cannot disturb the sanction imposed. This was not sufficient to mitigate in his favour and allow management to conclude that he still possesses the high level of trust, honesty, and integrity, which is inherent in the duties and responsibilities of a peace officer.
For all these reasons, the grievance is denied.
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Decision Page 43 Richard Labelle, Board Member
OTTAWA, April 3, 1997.
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