FPSLREB Decisions

Suspension (20 days) - Unauthorized access to taxpayers' information - Representation during employer's investigation - Lack of co-operation - Lack of remorse - Mitigating factors - Credibility - the grievor was a tax auditor - the employer suspected that he had consulted taxpayers' information without authorization - at that time, the grievor was suffering from stress and depression - the employer did not allow him to be represented during its disciplinary investigation, but informed him that he could have an observer present - the grievor attended a first investigation meeting unaccompanied and, after first denying any misconduct, provided explanations which were later found not to be true - he was accompanied by an observer at a second investigation meeting - the employer found that the grievor had committed misconduct and imposed a 20-day suspension - the grievor alleged that the suspension was null and void because he had not been allowed representation at the investigation meetings - the employer responded that neither the Public Service Staff Relations Act nor the collective agreement entitled the grievor to representation at the investigation meetings and that, in any event, the adjudication hearing cured any alleged defect in that regard - the employer argued that the misconduct had been established - it added that the grievor had shown a complete lack of honesty and consistency during the disciplinary investigation - the employer stressed that the grievor had shown no remorse through its investigation - the grievor recognized that the adjudication hearing was providing for a de novo examination of his grievance, but argued that the lack of representation at the investigation meetings could not be cured, as he had then made statements which proved detrimental to his interest - the grievor alleged that the investigation would have developed differently had he not been put in a position to make statements without the benefit of representation - in the alternative, the grievor requested that little weight be given to those statements - the grievor added that the only plausible explanation for his conduct was that he had been depressed and unwell - the adjudicator found that the grievor was not entitled to representation during the investigation process - she also found that there was no injustice in this case in considering the statements made by the grievor at the investigation meetings - she further found that misconduct had been established and that the 20-day suspension was at the high end of what was acceptable in the circumstances - she found that the grievor had not established that his health problems had contributed to his misconduct - finally, the lack of remorse and the variations in the grievor's explanations militated against decreasing the length of the suspensionGrievance denied. Cases cited:Re Men's Clothing Manufacturers Association of Ontario and Arthurs (1979), 26 O.R. (2d) 20, 104 D.L.R. (3d) 441 (H.C.J. Div. Ct.); Re Canada Safeway Ltd. and Retail, Wholesale and Department Store Union (1999), 82 L.A.C. (4th) 1 (Ish); Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, 1999 SKQB 81, 185 Sask.R. 137; Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, 2000 SKCA 119, 1999 Sask.R. 181, 196 D.L.R. (4th) 518; Evans (166-2-25641); Johnson (166-2-26107).