FPSLREB Decisions

File: 166-2-26848 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN CLARENCE VANDERMEER Grievor and TREASURY BOARD (Solicitor General Canada - Correctional Service)

Employer

Before: Ian Deans, Chairperson For the Grievor: Evan Heidinger, The Professional Institute of the Public Service of Canada

For the Employer: Janet Ozembloski, Student-at-Law

Heard at Vancouver, British Columbia, February 8, 1996.

Decision Page 1 DECISION The grievor, Clarence Vandermeer, is employed as a psychiatric nurse, NU-HOS-02 by Correctional Service Canada at its Regional Psychiatric Centre (RPC) in Abbotsford, B.C. He grieved as follows:

I grieve the discipline of $1,000. financial penalty, served to me by letter dated 94.09.09 and signed by D. Mater. This discipline is unfair, unjust and unreasonable.

and sought the following remedy: That the discipline of $1,000. financial penalty be recinded; any or all monies taken by the employer be reimbursed to me with the standard bank savings interest added; all documentation relating to this matter be removed from my file returned to me for my personal destruction.

The employer's final level response is set out below: The circumstances of your grievance were discussed with your representative from the Institute.

I have reviewed the facts surrounding management's decision to assess you a $1,000. financial penalty.

On April 11, 1994 the Regional Deputy Commissioner advised all employees that only corporate software approved by the manager of Information Technology could reside on CSC computers. You were clearly advised that non-corporate software could contain viruses that could have far reaching affects on any or all of CSC's national applications. It is clear that you are responsible for infecting the computer by installing a program with the "Monkey Virus" and therefore discipline is warranted.

Your actions have cost the CSC over $600 for the repair of the damaged computers and potentially could have cost much more. You have not shown remorse nor offered management any mitigating circumstances that might have led to a lesser disciplinary action.

Therefore, your grievance is denied.

Public Service Staff Relations Board

Decision Page 2 In summary the evidence of the employer is that on May 10, 1994 it was discovered that two computers had "crashed". One computer was located in the observation bubble and the damage was such that they were unable to determine the cause. The other was located at the nursing station and an investigation revealed that the "crash" was caused by the "Monkey Virus". The grievor was employed at the facility as a psychiatric nurse and worked at the nursing station in question. He was interviewed along with other employees and indicated that he had briefly inserted a diskette, owned by a patient (inmate) into the computer at the patient's request. The action was deemed to be in contravention of Commission Directive (E-5) which had been sent to each employee in the previous month. The directive warned of the dangers of introducing unauthorized software in workplace computers and provided a procedure to follow.

The investigation determined that the aforementioned diskette also was contaminated by the Monkey Virus and that the grievor sought to obtain the antidote from the employer using a diskette owned by him to use on his personal home computer. The diskette he owned was checked and it too was infected by the Monkey Virus. A check of other diskettes owned by other employees revealed at least one had the Monkey Virus. The employer then concluded that the actions of the grievor were the cause of the introduction of the virus in the nursing workstation computer. The employer imposed a penalty of $1,000. The employer set out the reasons for the action in a letter dated September 09, 1994 (E-4):

I have reviewed the report concerning your involvement and actions in an incident regarding the introduction of a computer virus to the computer at lower floor nursing workstation that became apparent on May 10, 1994. The report indicates that misconduct occurred on this occasion when you borrowed a computer diskette which had a computer virus from one of our patients to view on the computer at the lower floor nursing workstation. The result was that the virus made the computer workstation inoperable for use by you and other nursing staff for three and a half days while the computer information technologist restored the computers to operational status.

This behaviour is contrary to the Mission Statement, Core Value 5, Strategic Objective 5.9, which states that we are to make appropriate use of available technology. This is also contrary to one of the principles of the conflict of interest

Public Service Staff Relations Board

Decision Page 3 guidelines that specifies that employees shall not, directly or indirectly use, or allow the use of, government property of any kind, including property leased to the government, for anything other than officially approved activities.

Your actions in the discharge of your duties were also contrary to our Code of Discipline, Standard One which specifies that an employee has committed a major infraction if he or she fails to conform to or to apply any relevant legislation, Commissioner's Directive, Standing Order or other directive as it relates to his or her duty. In this instance, the Deputy Commissioner wrote to all CSC Staff on April 11, 1994 advising staff that only approved corporate software could be installed on CSC computers. He also described the significant problems that could result from installation of virus infected non-corporate software on CSC computers. These problems have significant financial, program and legal dimensions if national systems such as the Offender Management System, FINCON or on-line pay systems are damaged or shut down due to the introduction of a computer virus.

It should be noted that your involvement also contravened Standard Two of the Code of Discipline as well as Standard Four. Standard Two states that an employee has committed an infraction if he or she fails to account for, improperly withholds, misappropriates or misapplies any public money or property...in the course of duty or by reason of his or her being a member of the Service. Standard Four specifies that an employee has committed an infraction if he or she enters into any kind of personal or business relationship not approved by his or her authorized superior with an offender...or gives, or receives any gift, gratuities, benefits or favors or engages in personal business transactions with an offender.

Therefore in accordance with the Public Service Terms and Conditions of Employment Regulations and with the authority delegated to me by the Commissioner, you will be awarded a financial penalty of $1000.00. This financial penalty was considered appropriate and no mitigating factors could be identified to warrant a lesser penalty.

It should be noted that if you do not observe departmental requirements with respect to departmental computing hardware and software, further disciplinary action could be taken up to and including discharge. A copy of this letter will be included on your personal file for a period of two years.

If you feel this discipline and financial penalty is unwarranted, you are entitled to present a grievance.

Public Service Staff Relations Board

Decision Page 4 The employer indicated that it wished to tender its disciplinary investigation report as an exhibit. The grievor's representative objected on the grounds that the content was hearsay and could not be the subject of cross-examination. He argued that it should be inadmissible. He submitted a recent unreported decision of Arbitrator R.B. Blasina issued in British Columbia and dated February 22, 1995 between British Columbia Institute of Technology (Pacific Marine Training Campus) and British Columbia Government and Services employees Union - (Re: T. Noack and R. Witherspoon) in support of his objection.

After listening to the submissions of both parties and considering the above-mentioned jurisprudence, I concluded that the content of the investigation report could be put before me by the calling of the relevant witnesses, therefore a ruling of inadmissibility would not prejudice the employer's case. I therefore exercised the discretion provided to me by paragraph 25(c) of the Public Service Staff Relations Act and ruled the disciplinary investigation report inadmissible.

The grievor's evidence was as follows. He is a long service employee with an unblemished record. He admitted that he placed the diskette in question in the computer and agreed that "with hindsight" he ought not to have done so. He explained that as a psychiatric nurse he must develop a bond with patients if he is going to be of assistance to them. He believed at the time in question that he was fulfilling his responsibility in this regard and was well aware, after 13 years on the job, of the need to be cognizant of patients' attempts to manipulate. He stated that in his professional judgement his action was intended to build trust with the patient. He knew nothing of the presence of the virus and had volunteered information about his actions in an effort to assist the employer's investigation. He stated that it was not uncommon for staff to take work home and work on it using personal computers.

Although unable to recall precisely when prior to the date of the incident he had taken work home, he recognized that it was prudent to check his home computer for the virus and indeed when he did he discovered the virus and used the antidote to clean it up. He stated that he at no time violated any of the Codes of Employment (E-1 through E-3). He testified that the security staff in the bubble used the computer at the nursing workstation to print as they had no printer in the bubble - this was done

Public Service Staff Relations Board

Decision Page 5 by the use of a diskette which transferred the information from the bubble to the nursing workstation.

The employer's representative argued that the action of the grievor was a clear violation of the Codes of Conduct in evidence. She further argued that the action had caused the employer to have to repair the computer and undertake a costly investigation. She pointed out that this action by the grievor could have had disastrous consequences for the entire system and that he had violated the Commissioner's Directive (E-5). She referred me to jurisprudence (Kikilidis, Board files: 166-2-3180 to 3182; Cudmore, Board file: 166-2-22426; Hunt, Board file: 166-2-19540; Grenier and Boisvert, Board files: 166-2-16443 and 16444) and asked that the grievance be denied.

The representative for the grievor argued that the grievor had not violated any of the directives or codes and that in his professional capacity he had been fulfilling his obligation at all times. He referred me to a number of references in Canadian Labour Arbitration, Brown and Beatty, 3rd edition, and various decisions of adjudicators (Adrain, Board file: 166-2-4749, McKee, Board file: 166-2-21002). He asked that the grievance be upheld.

REASONS I accept that it is not unreasonable, based on the evidence, to conclude that the insertion of the diskette by the grievor may have caused the introduction of the Monkey Virus to the nursing station computer. However, what then do I make of the employer's evidence that at least one other diskette not owned by the grievor contained the Monkey Virus? Could this diskette owned by an unnamed employee be the source of the virus? What of the computer in the bubble - other than mentioning that it "crashed" - no evidence as to the reason was presented and no allegation was made relating this crash to the grievor. Did it also have the virus? Are those "crashes" coincidental or are they related? Is it possible that the virus was transmitted to the nursing station computer by way of a diskette from the "bubble" using the nursing station computer to print a document? The answers are not clear. On a balance of probabilities, the employer has not established that the grievor was

Public Service Staff Relations Board

Decision Page 6 responsible for the "crash" of the nursing workstation computer. One thing is clear, however, the grievor violated the Commissioner's Directive in not seeking approval to introduce an outside diskette - of this I am satisfied.

The grievor is a long service employee with an unblemished record. He co-operated with the employer throughout the investigation and while his judgement in this case may be questioned, I accept his explanation regarding his role with patients. I can find no evidence that he deliberately set out to create havoc and in fact I am of sufficient doubt as to the source of the virus that I cannot hold him accountable.

The penalty is excessive and I uphold the grievance in part. The penalty is rescinded and replaced with a penalty of $l00.

Ian Deans, Chairperson.

OTTAWA, April 10, 1996.

Public Service Staff Relations Board