FPSLREB Decisions

File: 166-2-27859 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN MINDI NIEDERMEISER Grievor and TREASURY BOARD (Revenue Canada - Customs and Excise)

Employer

Before: Joseph W. Potter, Board Member For the Grievor: Edith Bramwell, Counsel, Public Service Alliance of Canada For the Employer: Ronald Snyder, Counsel Heard at Vancouver, B.C., September 24 and 25, 1997.

Decision Page 1 DECISION The grievor, Ms. Mindi Niedermeiser, was a PM-1 Customs Officer with Revenue Canada, Customs and Excise, when she was discharged on June 26, 1996. She was working at the Pacific Highway Customs Office. The issue I am asked to adjudicate is whether her actions warranted discharge, as the employer believes, or some lesser penalty, as the grievor believes.

The letter of discharge dated June 25, 1996 signed by Al Morancy, A/Director, Customs Border Services, reads as follows: On May 18, 1996, while conducting a search of a passenger vehicle at the Peace Arch U.S. Customs Service office, U.S. special agents discovered restricted documents relating to U.S. Customs Service and Canada Customs narcotic trafficking detection/enforcement techniques and/or procedures. The subject vehicle was subsequently seized when it was determined that the vehicle was being used in an attempt to smuggle an illegal alien into the United States. The driver of the vehicle indicated that you had left these documents in the vehicle. As a result of this information coming to light, you were indefinitely suspended on May 24, 1996, pending completion of the investigation.

The results of the now completed investigation demonstrate that, based on your own admission to the Internal Affairs Division investigator during an interview held on May 21, 1996, you removed the Intelligence Guides in question from the Pacific Highway District Resource Centre in early November 1995. The evidence clearly demonstrates that you failed to sign out and properly safeguard U.S. Customs Service and Canada Customs sensitive drug detection/enforcement information which resulted in one of the documents being reproduced without authorization from the Employer.

These actions of improperly removing documents from the Employer’s premises without proper authorization and, more importantly, failing to safeguard these documents while they were in your custody, are very serious violations of the Departmental Code of Conduct and Appearance. By your actions, you have irreparably damaged the element of trust essential to the employment relationship and to the performance of your duties as an employee of the Department. In light of this, your continuing involvement in the day to day operations of the Department cannot be considered.

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Decision Page 2 Accordingly, I find it necessary to terminate your employment for cause, effective June 26, 1996. This action is taken under the authority of subsection 11 (4) of the Financial Administration Act and pursuant to subsection 11 (2)(f) of the same legislation.

Details concerning any benefits to which you may be entitled will be forwarded to you at a later date.

Please acknowledge receipt of this letter by signing the attached duplicate copy and returning it to the Department.

The parties submitted an Agreed Statement of Facts and appended to it were Exhibits 1 to 16. In addition, I heard from three witnesses introduced by the employer together with Exhibits D-1 to 12. I also heard from two witnesses introduced by the grievor together with one Exhibit, G1.

At the outset of the hearing, the grievor’s counsel requested the exclusion of witnesses and this was granted.

Summary of Evidence The facts preceding the termination decision were not, for the most part, in dispute and can be summarized fairly succinctly. These facts have been extracted from the Agreed Statement of Facts which the parties jointly signed and presented to me at the hearing, as well as the testimony of certain witnesses.

The grievor’s indeterminate status in the federal Public Service commenced on February 6, 1995 as a CR-3. From there she had a short stint as an acting CR-4 before becoming an acting PM-1 Customs Officer on October 16, 1995. She became indeterminate in this position on January 8, 1996.

The grievor was going out with a young man by the name of Mohamed Hassan Ali and the two were planning eventually to marry. Although the grievor was still living with her parents, she spent many of her days off at Mr. Ali’s residence.

On May 18, 1996, Mr. Ali and a passenger in his vehicle were stopped while trying to cross at the British Columbia-Washington State border at what was known as the Peace Arch port of entry. The U.S. customs officer who stopped the vehicle was Ms. Jan Marie Peté. She testified that, after reviewing the identification provided to her Public Service Staff Relations Board

Decision Page 3 by the driver and passenger, she determined that the passenger was attempting to enter the U.S.A. illegally. At that point, the driver was ordered to clear the vehicle of his possessions and, in doing so, four manuals were observed in the hatchback of the vehicle. The titles of each were: (1) Intelligence Guide - Identification of High Risk Air and Marine Cargo. (This was a Revenue Canada, Customs and Excise, publication.)

(2) Intelligence Study - Smuggling Using Suitcases, Flight and Garment Bags. (This was a United States Customs Service publication.)

(3) Intelligence Study - Airline Tickets: A Tool for Identifying Potential Narcotics Smugglers. (This was a United States Customs Service publication.)

(4) The fourth manual was a complete photocopy of the Intelligence Study as specified in (3) above.

Upon this discovery, Mr. Walt Heckla, a special agent of the U.S. Customs Office of Investigation, was called in. After being briefed on the findings, Agent Heckla contacted Mr. Rick Hunter, Regional Intelligence Officer for the Pacific Region, Canadian Customs Border Services, to inform him of the discovery of these manuals and to state further that the driver, Mr. Ali, had indicated that the manuals belonged to his girlfriend, Ms. Mindi Niedermeiser, who was a Canadian customs officer. Mr. Hunter then left to travel to the Pacific Highway port of entry to meet with Superintendent Doug Gourlie, the grievor’s supervisor. Following this discussion, Mr. Gourlie met with Ms. Niedermeiser, who was working her regular shift at that time. The grievor was aware her boyfriend had been detained as he had just called to advise her. However, she was not aware the documents cited above had been found in his vehicle.

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Decision Page 4 At the meeting between the grievor and Mr. Gourlie, Ms. Niedermeiser stated, when told of the discovery of the documents, that she recalled signing them out of the Resource Centre a number of months ago. She stated that the training material was inadvertently left in her boyfriend’s car.

In a memorandum written by Superintendent Gourlie following this interview, he stated, in part (Exhibit 9 of the Agreed Statement of Facts): After interviewing Inspector Niedermeiser I am of the opinion that she had some documents signed out of the Resource Centre and inadvertently left them in her boyfriend’s vehicle. I believe that there was no intent on her part to partake in what occurred with U.S. Customs. I believe she showed poor judgment in leaving these documents in her boyfriend’s vehicle.

Notwithstanding this conclusion, Mr. Blake Delgaty, Director, Customs Border Services, wrote to the grievor on May 24, 1996 suspending her indefinitely pending a formal investigation (Exhibit 10 of the Agreed Statement of Facts).

The formal investigation was undertaken by the Internal Affairs Division and their findings were sent to the Interim Assistant Deputy Minister, Pacific, on June 11, 1996 (Exhibit 14 of the Agreed Statement of Facts). The grievor was one of six individuals interviewed in this investigation. She stated that she had removed the Intelligence Guides from the Resource Centre in early November 1995; however, she had not signed them out in spite of the fact she was aware it was a requirement to do so. She had no explanation as to why she had not signed them out, nor could she explain why she had retained them for so long. She could not recall when she left the reports in her boyfriend’s car, nor could she explain why one report had been duplicated. She did state that she removed the documents in order to familiarize herself with some detection procedures related to air travel as she was on an eligible list for assignment to Vancouver International Airport, although she admitted she had not yet read them. The investigation also revealed that the United States Department of Justice, Immigration and Naturalization Service, sent Mr. Ali a notice stating, in part (Exhibit D-7):

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Decision Page 5 ... you are detained under the provisions of Section 235(b) of the Immigration and Nationality Act, as amended, for a hearing before an Immigration Judge to determine whether or not you are entitled to enter the United Sates or whether you shall be excluded and deported. ...

Mr. Ali was sent this notice because he “ ... knowingly assisted, aided and abetted the attempted entry of a Somalian citizen ... who was not in possession of any valid documents to enter the United States” (Exhibit D-7).

In her evidence-in-chief, the grievor stated that she used Mr. Ali’s car frequently and recalled putting the documents in the hatchback portion of the vehicle after borrowing them from the Resource Centre in November 1995. When she removed them from the Resource Centre, she admitted she knew the proper procedure; however, she testified she did not follow it because she intended to have the documents for only a short period of time and she could not locate the sign out cards. She further testified that she used the vehicle on numerous occasions, including times when she entered the United States. In so far as her current relationship with Mr. Ali is concerned, she testified she no longer associates with him and they are not together in any fashion. However, up to the time of the incident, she testified she was confident he had a record-free background and his activities up to then were not of a criminal nature. Under cross-examination, she admitted seeing the documents in the car from time to time but simply forgot to return them to her work location as she was preoccupied with a number of issues going on in her life, like a new job, upcoming training and possible marriage. The grievor admitted under cross-examination that the documents were sensitive and she did not safeguard them. She stated she had never been disciplined prior to this incident and her one performance review (Exhibit G-1) contained positive comments.

We heard testimony from Ms. Kathy Closter who was the individual in charge of the Resource Centre where these documents were kept. She too was interviewed by Internal Affairs. She stated that the materials in the Resource Centre were not available to the general public but were available to any customs officer on an honour system involving sign out, as the Centre is not staffed by any personnel. Ms. Closter testified that she conducted a tour of the Resource Centre in October 1995 for some five employees, including the grievor. The tour included sign out procedures and the need to safeguard sensitive material.

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Decision Page 6 Also testifying was Mr. Terry Langley who, at the time of the grievor’s discharge, was Acting Director, Pacific Highway District, Customs. The grievor was under his overall jurisdiction. Mr. Langley was briefed on the events in May 1996 and then, in early June, he had occasion to travel to Ottawa on business. While there he spoke to the U.S. Customs Attaché who expressed concern over the lack of control Canada Customs had exhibited with respect to sensitive U.S. publications. Mr. Langley was told by the Attaché that, if a similar situation had occurred in the U.S., the individual would be fired. Mr. Langley replied the matter was under investigation.

The Investigation Report concluded that the grievor had failed to sign out and properly safeguard sensitive drug detection information.

Mr. Langley testified that following receipt of the Internal Affairs report, a number of factors were considered prior to reaching a final conclusion with respect to this matter. The factors included the acknowledgment by the grievor that proper procedures had not been followed with respect to the removal of intelligence information in spite of the fact the grievor admitted to knowing these procedures. Secondly, the trust required in the day-to-day functioning of a customs inspector had been broken in part by the grievor not taking proper care and control of the documents. Thirdly, the grievor had stated she had not read the documents in spite of the fact she removed them to familiarize herself with detection procedures at airports. Fourthly, there was no transfer request to Vancouver Airport on record relating to the grievor. Fifth was the fact she initially told Mr. Gourlie she had signed out the documents when later it was learned she had not. Also considered was the fact the documents themselves would not have been missed if not found by U.S. Customs as well as the fact a photocopy of one of the documents was also found. Furthermore, given the fact the driver was at that time in the sequence of events her boyfriend, and the two were planning on getting married, Mr. Langley testified that he could not remain confident that confidential information she became aware of in the course of her duties would be withheld from him.

In cross-examination, Mr. Langley was shown the conclusion arrived at by the grievor’s supervisor, Mr. Gourlie, which stated he felt the grievor’s actions were simply bad judgment. When questioned as to whether or not he took this into account before deciding the final penalty, Mr. Langley stated Mr. Gourlie’s conclusion was arrived at

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Decision Page 7 before the Internal Affairs review and without knowledge of all the circumstances. He denied that the decision to terminate the grievor was based on pressure exerted from his U.S. counterparts. In addition, under cross-examination, Mr. Langley admitted he did not review the performance records of the grievor, nor was he aware she was on an eligible list for a position at Vancouver Airport at the time she removed the documents. He also stated he did not interview other customs officers about how they viewed working with the grievor, although he understood she was well liked by the other employees.

Following a review of the Investigation Report, a meeting was held on June 26, 1996 at which time the grievor received her letter of termination.

In Mr. Langley’s opinion, it was not possible to place the grievor elsewhere in the organization, although this option was considered. It was rejected due to the fact all positions in the Department had access to some type of confidential information and the level of trust was simply not there.

Argument for the Employer Counsel argued this was not a complex case. The testimony and the signed Agreed Statement of Facts show the grievor failed to safeguard sensitive documents which resulted in one document being photocopied. She had no answer as to why a duplicate was made of one of the documents. The evidence also showed she removed the documents without following proper procedures and, when questioned by Internal Affairs as to why she did not follow sign out procedures, the grievor gave no explanation. She told Mr. Gourlie that she had signed out the documents; she then admitted to Internal Affairs that she had not. She gave no reason for not returning the Intelligence Guides. She said she removed the documents because she thought she might get a position at Vancouver Airport; yet she stated she never read them in all the time they were in her possession. Counsel argued that at the time the investigation was conducted, there were simply too many unanswered questions to justify continued employment.

In addition to the unanswered questions, counsel stated another concern of the employer was the fact that her boyfriend was accused of aiding and abetting smuggling and the grievor, at that time, stated they were intending to marry. Counsel argued it

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Decision Page 8 was reasonable to conclude that the employer, again at the time it made its decision, had reasonable grounds to be concerned about the risks involved in continuing the grievor’s employment. To this end, counsel cited the Supreme Court of Canada decision Cie Minière Québec Cartier v. Québec [1995] 2 S.C.R. 1095, which states subsequent-event evidence can only be relied upon if it “ ... shed(s) light on the reasonableness and appropriateness of the dismissal at the time that it was implemented”. Counsel urged me to only consider the evidence known to the employer when it made its decision to terminate the grievor.

In the first alternative, counsel stated that, if I find the termination is not warranted, I should refrain from reinstating the grievor and instead award her a fixed amount as compensation. To this end, I was referred to the decisions in McMorrow (Board file 166-2-23967) and Lutes (Board file 166-2-26706).

In the second alternative, if I decide to reinstate the grievor, it should only be after time served.

Argument for the Grievor The grievor’s counsel argued that the grievor’s behaviour merits some discipline, but argued that termination went too far. While the grievor may have committed errors in judgment, counsel stated that there was no evidence of malfeasance. The proven offenses here are the following: the grievor negligently failed to sign out materials; the grievor negligently failed to safeguard these materials and she negligently failed to return them. These proven offenses, it was argued, do not warrant discharge. The background for the employer’s decision was the grievor’s association with her ex-boyfriend. There is no evidence the grievor misused the documents, nor is there any suggestion she was involved in any way in smuggling. However, the employer wanted to discipline her because she could not prove she was unaware of the illegal activities of her boyfriend, nor could she prove she did not use the documents for her own gain. These, counsel argued, were impossible to prove.

There were no mitigating factors taken into consideration prior to the employer making its final decision and there should have been. For example, the grievor was extremely young and it is reasonable to conclude she did not fully understand the consequences of her actions. Additionally, she had a positive performance appraisal

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Decision Page 9 on record. Coupled with this was Mr. Gourlie’s letter which concluded that it was simply a matter of poor judgment.

Counsel argued that had Ms. Niedermeiser driven the car to her work and had Mr. Langley or someone else seen the material not properly secured and long overdue, she might well have been disciplined. She did something that generated a risk. However, the discipline would not have been termination. The only reason for termination was because a search and seizure took place by U.S. Customs following the illegal activity of her ex-boyfriend, an activity of which she was totally unaware.

In answer to the employer’s assertion that there were too many unanswered questions, counsel stated that the grievor’s story has remained consistent from the time of her discharge. She removed some documents out of the library for a purpose; she dumped them in the back of her boyfriend’s car and forgot about them. It shows poor judgment, but discharge should not be the result of poor judgment. She knows she made a mistake; she knows she made an error in judgment; she knows she deserves some penalty; she knows she underestimated the magnitude of risk the Department was under but she deserves a second chance in light of the circumstances.

The grievor’s counsel cited the following decisions: Gourlie (Board file 166-2-18705); Thomas (Board file 166-2-18952); McGoldrick (Board file 166-2-25796); Rajakaruna (Board file 166-2-23135); Loiselle (Board file 166-2-21818); Phillips (Board file 166-2-21694); and Labrie (Board file 166-26301).

Reasons for Decision This is a situation of a young woman with very limited service admitting she made a mistake, and recognizing the mistake was serious, but seeking reinstatement and an opportunity to demonstrate to the employer that she has learned from this mistake and that she can indeed be trusted.

It is also a situation of an employer being, I believe, somewhat embarrassed by the fact that sensitive information provided by a foreign customs office has not been properly secured and was discovered by that same foreign customs office in the course of an illegal activity. The careless manner in which the documentation was handled in

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Decision Page 10 part prompted the employer to state it could no longer trust the employee, and discharge was appropriate.

Was this perceived lack of trust borne out by the evidence? If so, this may well be a case where a single act warrants the maximum penalty of discharge. If not, then I must decide if discharge exceeds a reasonable response in light of the evidence.

When the documents were discovered in Mr. Ali’s vehicle, the evidence indicates the employer was made aware of this at the earliest possible moment. The grievor was made aware of the detention of her boyfriend but, at the outset, did not know about the discovery of the sensitive information. When confronted with this fact by her supervisor, Superintendent Gourlie, she admitted to removing the documents from the Resource Centre and putting them in her boyfriend’s car. She told Superintendent Gourlie that she remembered signing the documents out and had inadvertently left them in the vehicle. Mr. Gourlie’s finding was that the grievor showed poor judgment in what she had done but that “there was no intent on her part to partake in what occurred with U.S. Customs”. However, it must be remembered that this conclusion was reached on the information Superintendent Gourlie had at that time.

It appears the employer was not satisfied with this initial finding and a formal investigation was commissioned. This involved interviewing the grievor (among others) again some three days after she met with her supervisor.

Following the findings of the formal investigation, the grievor’s employment was terminated. Therefore, I believe it is appropriate to examine the findings of the investigation, together with the testimony of Mr. Langley (as he was the one who made the decision to terminate the grievor according to Exhibit 15 of the Agreed Statement of Facts) to determine the appropriateness of the penalty. The discharge of the grievor was based on the fact that she improperly removed documents without proper authorization and without safeguarding the documents while they were in her possession. It is the employer’s position that these actions resulted in a loss of trust to the employment relationship (Exhibit 16 of the Agreed Statement of Facts).